Case: 18-16547, 11/21/2018, ID: 11096832, DktEntry: 15-2, Page 1 of 297

Docket No. 18-16547 In the United States Court of Appeals

for the Ninth Circuit

KEVIN COOPER, et al., Plaintiff - Appellees v.

EDMUND G. BROWN, et al., Defendants - Appellees ______Appeal from Denial of Motion to Intervene by the United States District Court for the Northern District of California, No. 06-cv-0219 – Honorable Richard G. Seeborg Excerpts of Record, Volume Two

MICHAEL A. RAMOS MICHAEL A. HESTRIN STEPHEN M. District Attorney District Attorney WAGSTAFFE Robert P. Brown Ivy B. Fitzpatrick District Attorney Chief Deputy Managing Deputy COUNTY OF District Attorney District Attorney SAN MATEO James R. Secord COUNTY OF RIVERSIDE 400 County Center Deputy 3960 Orange Street 3rd Floor District Attorney Riverside, CA 92501 Redwood City, CA COUNTY OF (951) 955-5555 94063 SAN BERNARDINO FAX (951) 955-7640 (650) 363-4636 303 West Third Street 5th Floor Attorneys for Appellants San Bernardino, CA 92415 District Attorneys’ Offices (909) 382-7755 of San Bernardino, Riverside FAX (909) 748-1376 and San Mateo Counties Case: 18-16547, 11/21/2018, ID: 11096832, DktEntry: 15-2, Page 2 of 297

EXCERPTS OF RECORD

Volume One

Order Denying Motions to Intervene and Denying Request for Judicial Notice – Docket # 676 ...... 1

Volume Two

Notice of Motion and Motion to Intervene by Guy Rowland, and for Stay of Execution; Memorandum of Points and Authorities – Docket # 689 ...... 12

Order Setting Briefing Schedule – Docket # 688 ...... 35

Joint Litigation Schedule – Docket # 687 ...... 36

Notice of Joint Appeal – Docket # 677 ...... 45

Notice RE: Finalization of Lethal Injection Protocol – Docket # 635 ...... 56

Order Granting Motions to Intervene and to Stay Execution and Granting Motion for Judicial Notice – Docket # 631 ...... 118

Defendants’ Opposition to Ayala’s Motion to Intervene and for Stay of Execution – Docket # 628 ...... 124

Statement of Recent Decision – Docket # 616 ...... 146

Order Granting Motions to Intervene and Motions to Stay Executions – Docket # 606 ...... 151

Excepts of Record - i

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Order Granting Kevin Cooper’s Motion to Intervene and to Stay Execution – Docket # 581 ...... 155

Order Resolving Motions to Intervene and to Stay Executions – Docket # 563 ... 159

Joint Statement Containing a Proposed Schedule or Schedules – Docket # 552 .. 165

Answer to Fourth Amended Complaint – Docket # 486 ...... 169

Fourth Amended Complaint for Equitable and Injunctive Relief – Docket # 428 ...... 180

Order Following Remand – Docket # 424 ...... 237

Order Granting Motion for Leave to Intervene and Denying Conditionally Intervenor’s Motion for a Stay of Execution – Docket # 401 ...... 246

Defendants’ Responses to Court’s Inquiries – Docket # 394 ...... 257

Application for Order Shortening Time; Declaration of David A. Senior – Docket # 386 ...... 261

Third Amended Complaint for Equitable and Injunctive Relief – Docket # 323 ...... 265

Complaint for Equitable and Injunctive Relief – Docket # 5 ...... 288

Volume Three

Civil Docket for Case # 3:06-cv-00219-RS ...... 305

Excepts of Record - ii

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David A. Senior (SBN 108759) MCBREEN & SENIOR 1900 Avenue of the Stars, Eleventh Floor Los Angeles, California 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 [email protected]

John R. Grele (SBN 167080) LAW OFFICE OF JOHN R. GRELE 1000 Brannan Street, Suite 400 San Francisco, California 94103 Phone: (415) 655-8776 Fax: (415) 484-7003 [email protected]

Richard P. Steinken (admitted PHV) JENNER & BLOCK 353 N. Clark Street Chicago, IL 60654 Phone: (312) 923-2938 Fax: (312) 840-7338 [email protected]

Attorneys for Intervenor GUY ROWLAND

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

MICHAEL ANGELO MORALES, et al., ) CASE NO. C 06 0219 RS ) C 06-0926 RS Plaintiffs, ) ) NOTICE OF MOTION AND MOTION TO vs. ) INTERVENE BY GUY ROWLAND, AND FOR ) STAY OF EXECUTION; MEMORANDUM OF RALPH DIAZ, Acting Secretary of the ) POINTS AND AUTHORITIES California Department of Corrections and ) Rehabilitation, et al., ) DATE: December 6, 2018 ) TIME: 1:30 p.m. Defendants. ) PLACE: Courtroom 3 ______

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PLEASE TAKE NOTICE that on December 6, 2018, at 1:30 p.m. or as soon

thereafter as he may be heard, before the Honorable Richard Seeborg in Courtroom 3 of

the United States District Court for the Northern District of California, located at 450

Golden Gate Avenue, San Francisco, California 94102, Intervenor Guy Rowland will and

hereby does move the Court under Federal Rule of Civil Procedure Rule 24, for an order

granting him leave to intervene in the present matter. Intervenor’s claims share with the main action common questions of law or fact.

Intervenor further will and does move the Court for an order staying his execution. There is a strong likelihood the present matter will succeed on the merits, the relative harm to the parties weighs in favor of Intervenor, and Intervenor has not delayed unnecessarily in bringing this motion for a stay.

The motions are based on this Notice, the Memorandum of Points and

Authorities, along with all exhibits and papers filed in this action, and on any evidence received at the hearing.

DATED: October 31, 2018 By: /s/ David A. Senior McBREEN & SENIOR

Richard P. Steinken JENNER & BLOCK

John R. Grele LAW OFFICE OF JOHN R. GRELE

Attorneys for Intervenor GUY ROWLAND

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TABLE OF CONTENTS TABLE OF AUTHORITIES ...... ii

MEMORANDUM OF POINTS AND AUTHORITIES ...... 3

I. ISSUES TO BE DECIDED ...... 3

II. SUMMARY OF RELEVANT FACTS ...... 3

III. INTERVENOR’S MOTION TO INTERVENE SHOULD BE GRANTED ...... 11

A. Introduction ...... 11

B. Intervenor’s Motion to Intervene Is Timely ...... 12

C. Intervenor is Entitled to Intervention as of Right...... 14

D. Intervenor Meets the Standards for Permissive Intervention ...... 16

1. This Court Has Independent Grounds for Jurisdiction ...... 16

2. Intervenor’s Motion to Intervene Is Timely ...... 16

3. Intervenor’s Claims and the Main Action Have Common Questions of Law or

Fact ...... 16

IV. MOTION TO STAY EXECUTION ...... 18

A. Intervenor is Likely to Succeed on the Merits ...... 18

B. Possibility of Irreparable Harm ...... 19

C. No Unnecessary Delay ...... 20

V. CONCLUSION ...... 21

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TABLE OF AUTHORITIES

Cases

Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005) ...... 18

Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893 (9th Cir. 2011) ...... 15

Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998) ...... 13

Georgia v. Ashcroft, 539 U.S. 461 (2003) ...... 15

Hill v. W. Elec. Co., Inc., 672 F.2d 381 (4th Cir. 1982) ...... 17

League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997) ...... 12, 13

Morales v. Cal. Dep’t of Corr. & Rehab., 85 Cal. Rptr. 3d 724 (Cal. Ct. App. 2008) ...... 4

Morales v. Cal. Dep’t of Corr. & Rehab., No. CV 061436 (Super. Ct. Marin County, Cal.

Nov. 29, 2007) ...... 4

Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006) ...... 3, 4, 20

Nw. Forest Research Council v. Glickman, 82 F.3d 825 (9th Cir. 1996) ...... 16

United States v. Oregon, 745 F.2d 550 (9th Cir. 1984) ...... 13

Westlands Water Dist. v. United States, 700 F2d 561 (9th Cir. 1983) ...... 13

Statutes

Cal. Code Regs. tit. 15, § 3349 ...... 5

Fed. R. Civ. P. 24(a) ...... 14

Fed. R. Civ. P. 24(b) ...... 2, 3, 16

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MEMORANDUM OF POINTS AND AUTHORITIES

Guy Rowland (“Intervenor”) seeks to intervene in the present action, pursuant to Rule

24 of the Federal Rules of Civil Procedure, because he “has a claim or defense that shares with

the main action a common question of law or fact.” Id. Intervenor further seeks a stay of

execution.

I. Issues to Be Decided

1. Whether Intervenor may intervene as plaintiff in this litigation as a matter of

right pursuant to Rule 24(a)(2) or permissively under 24(b)(1) of the Federal Rules of Civil

Procedure.

2. Whether Intervenor should be granted a stay of execution on the same basis and

to the same extent as Plaintiffs Morales, Brown, Fields, Sims, Fairbank, Raley, Cox, Cooper,

Pinholster, Payton, Belmontes, Hayes, Boyer, Deere, Heishman, Sully, Cunningham, Mickey,

Hector Ayala, Samayoa, Cummings, Zapien, Ronaldo Ayala, and Visciotti, including but not limited to a stay of any preparations for the setting of an execution date while this litigation is pending.1

II. Summary of Relevant Facts

Intervenor is a condemned inmate in the custody of the California Department of

Corrections and Rehabilitation (“CDCR”).

On December 15, 2006, this Court issued an order finding that the “implementation of

California’s lethal-injection protocol lacks both reliability and transparency.” Morales v. Tilton,

465 F. Supp. 2d 972, 981 (N.D. Cal. 2006). California’s actions and failures to act with respect

1 Plaintiffs Fields, Belmontes, and Hayes are now deceased.

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to the implementation of its lethal-injection protocol have resulted in an intolerable risk of a

Constitutional violation. Id. To remedy this situation, California would have to undertake a

“meaningful” review of its processes, which “must be undertaken with an openness to the idea

of making significant improvements in the ‘infrastructure’ of executions.” Id. at 983 (emphasis

added).

In response to this clear, unambiguous, and respectful guidance, Governor

Schwarzenegger announced via a press release on December 18, 2006, that he was “committed

to doing whatever it takes . . . to ensure that the lethal injection process is constitutional . . . .”

Response by the Governor’s Office to the Court’s Memorandum of Intended Decision Dated

Dec. 15, 2006, Doc. 291, Ex. A. The Governor added that his “administration will take

immediate action to resolve [the] court[’s] concerns . . .” Id. In fact, Governor Schwarzenegger

subsequently failed to undertake any actions to improve or increase reliability and transparency

in the lethal-injection process, failed to undertake a “meaningful” review of its processes, and failed to undertake any actions with an openness to the idea of making significant improvements in the infrastructure of executions.

Governor Schwarzenegger and CDCR issued a revised Operational Procedure 770

(“Lethal Injection Protocol”) on May 15, 2007. On November 29, 2007, in Morales v.

California Department of Corrections and Rehabilitation, the Marin County Superior Court declared invalid and enjoined the enforcement of California’s Lethal Injection Protocol.

Morales v. Cal. Dep’t of Corr. & Rehab., No. CV 061436 (Super. Ct. Marin County, Cal. Nov.

29, 2007); aff’d, Morales v. Cal. Dep’t of Corr. & Rehab., 85 Cal. Rptr. 3d 724, 733 (Cal. Ct.

App. 2008).

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On July 30, 2010, California promulgated regulations of the Lethal Injection Protocol, effective August 29, 2010. Cal. Code Regs. tit. 15, § 3349. With the exception of a few additional deficiencies, the regulations were substantially identical to the version of OP 770 that was published by Governor Schwarzenegger and CDCR on May 15, 2007.

The day after the regulations took effect, on August 30, 2010, Governor

Schwarzenegger and CDCR orchestrated an effort to have the Riverside County Superior Court issue an execution warrant for Albert Brown. People v. Brown, No. CR18104 (Super. Ct.

Riverside County, Cal. Aug. 30, 2010). After litigation involving five different courts over a six-week period, the Ninth Circuit Court of Appeals directed this Court to reconsider its previous denial of Plaintiff Brown’s motion to stay his execution (Doc. 420), and the Court then issued a stay (Doc. 424). “[O]f particular importance” to the Ninth Circuit was the fact that

Plaintiff Brown’s claims were “identical” to those then before this Court by Plaintiff Morales.

Doc. 420 at 7-8.

On September 28, 2010, this Court found that the lethal injection procedure “as implemented in practice through and including the date of the evidentiary hearing in the 2006

Morales litigation created a ‘demonstrated risk of severe pain’” under Baze v. Rees, 553 U.S. 35

(2009), and finding the standard for a stay of execution under Nelson v. Campbell, 541 U.S. 637

(2004), was met, Doc. 424 at 3-8. This Court also found, based on its limited opportunity to compare OP 770 and the lethal injection regulations approved by the California OAL on July

30, 2010, that “there is significant dispute” that there is a meaningful difference between the two protocols other than the physical facility in which executions are to take place. Id. at 5.

On October 8, 2010, Plaintiffs filed a Fourth Amended Complaint for Equitable and

Injunctive Relief Pursuant to 42 U.S.C. § 1983. Doc. 428. On October 25, 2010, Defendants

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Doc. 430.

On November 16, 2010, in response to an inquiry by the Court, Defendants’ counsel, the chief law enforcement officer of the State of California, assured the Court that no execution dates would be set in California until the litigation of this matter was concluded due to expressed concerns that future execution dates would be set and that such would result in disorderly litigation such as occurred with Plaintiff Brown. RT 3-9 (Nov. 16, 2010). In a discussion with respect to whether other death row inmates who have exhausted their appeals but who are not plaintiffs to this action were protected by this promise, Defendants’ counsel affirmed that such interested parties could rely on these assurances. Id. at 9-10.

The Court stayed discovery propounded by Plaintiffs pending resolution of Defendants’ motion to dismiss. Doc. 453. The motion was denied on December 10, 2010, with the Court finding that Plaintiffs had met the requirements of Baze v. Rees. Doc. 461, in passim. Shortly thereafter, on December 22, 2010, the parties were ordered to respond to each other’s discovery requests. Doc. 465.

On December 29, 2010, Plaintiffs Fields and Sims moved to intervene and for stays of executions. Doc. 467. Their motion was granted. Doc. 473.

Defendants did not respond to Plaintiffs’ discovery requests, but rather moved for a protective order (Doc. 478) and to strike portions of the Fourth Amended Complaint. Doc. 484.

On March 4, 2011, and in response to a stipulated intervention and for a stay of execution between Plaintiff Raley and Defendants (Doc. 511), the Court expressed its concern that issuing stays for all condemned inmates who were otherwise eligible for execution was unnecessary, given the assurances by the Attorney General of the State of California (counsel

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On May 1, 2012, the District Attorney for the County of Los Angeles moved the Los

Angeles County Superior Court for an order requiring the CDCR to develop a single-drug execution protocol, without required APA review and approval, and to set execution dates for

Mitchell Sims and Tiequon Cox under a one-drug execution method. The District Attorney failed to inform the Superior Court of this Court’s stay of execution for Plaintiff Sims, the

March 4, 2011 proceedings in this Court, the Marin County Superior Court’s permanent injunction, or the CDCR’s appeal of the judgment in that case.

On May 16, 2012, Plaintiff Cox moved to intervene in this litigation and requested that this Court issue a stay of execution. Doc. 535.

On August 23, 2012, Plaintiff Fairbank moved to intervene in this litigation and requested this Court issue a stay of execution. Doc. 555. As detailed therein, the District

Attorney for San Mateo County had moved in the San Mateo County Superior Court for an execution date to be set for Mr. Fairbank.

On September 10, 2012, the Los Angeles County Superior Court denied the Los Angeles

District Attorneys’ motions in both the Cox and Sims cases. On November 19, 2012, the San

Mateo County Superior Court denied the San Mateo County District Attorney’s motion in the

Fairbank case.

On November 21, 2012, this Court issued an order approving the stipulation to intervene and for a stay of execution for Plaintiff Raley, and granting the motions of Plaintiffs Cox and

Fairbank to intervene in this action and staying their executions, recognizing that county district attorneys are not bound by Defendants’ representations and could seek orders compelling

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Defendants to conduct executions (and had in fact done so on at least two occasions). Doc. 563 at 3-5.

On April 5, 2013, Plaintiff Cooper moved to intervene in this litigation and for a stay of execution. Doc. 564. The Court granted Cooper’s motion on June 19, 2013. Doc. 581.

On August 16, 2013, Plaintiffs Pinholster and Payton moved to intervene in this litigation and for stays of execution. Doc. 583. On September 17, 2013, the Court granted their motion. Doc. 586.

On January 19, 2017, Plaintiffs Belmontes, Hayes, Boyer, Deere, Heishman, Sully,

Cunningham, Mickey, Hector Ayala, and Samayoa moved to intervene in this litigation and for stays of execution (Doc. 594), and with this motion pending, Plaintiff Cummings moved to intervene in this litigation and for a stay of execution on February 22, 2017. Doc. 602.

On April 18, 2017, the Court granted these Plaintiffs’ motions. Doc. 606.

On September 21, 2017, Plaintiff Zapien moved to intervene in this litigation and for a stay of execution. Doc. 612. On October 23, 2017, the Court granted Plaintiff Zapien’s motion.

Doc. 620.

On November 2, 2017, Plaintiff Ronaldo Ayala moved to intervene in this litigation and for a stay of execution. Doc. 621. On December 4, 2017, the Court granted Plaintiff Ronaldo

Ayala’s motion. Doc. 631.

On April 17, 2018, Plaintiff Visciotti moved to intervene in this litigation and for a stay of execution. Doc. 642. On May 14, 2018, the Court granted Plaintiff Visciotti’s motion. Doc.

655.

On July 5, 2018, the District Attorney for San Mateo County moved to intervene in this case and for this Court to vacate the foregoing orders staying the plaintiffs’ executions. Doc.

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663. This Court denied the motion. Doc. 676. The District Attorney for San Mateo County is

appealing this Court’s order. Doc. 677. Intervenor’s conviction, sentence, and judgment are

from San Mateo County.

Intervenor’s initial state appeal and habeas matters are now concluded, and his initial

federal habeas corpus matters under 28 U.S.C. § 2254, et seq. are concluded.

Although administrative exhaustion is not required, Beardslee v. Woodford, 395 F.3d

1064, 1069 (9th Cir. 2005), Intervenor has filed administrative complaints with Defendant

CDCR.

There currently is substantial uncertainty regarding: 1) when discovery will commence, and the nature of the information and documents that Defendants are withholding regarding their activities to attempt to rectify their unconstitutional conduct; the ongoing litigation schedule, including whether the Court’s stay order will be lifted with respect to its order compelling defendants to respond to outstanding discovery requests, and 2) the transparent examination and review of the bona fides of defendants’ purportedly revised execution protocol, execution practices, facilities, personnel, training, and its implementation of the foregoing; 3) whether Defendant CDCR is permitted or authorized to implement an execution protocol under the California constitution as so delegated by the legislature2; 4) whether significant portions of

Defendants’ protocol remain subject to the APA3; and/or 5) whether various county District

Attorneys will be allowed to intervene in the case in some capacity and employ various

2 This issue currently is being litigated in the California Court of Appeal, First Appellate District, Case No. A151732.

3 This issue is currently being litigated in Masters, et al. v. Kernan, et al., Marin County Superior Court No. CIV1800580 (filed February 16, 2018).

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litigation strategies as to the issues before the Court; and 6) whether Defendants and various

county District Attorneys will collectively attempt to promptly set execution dates.

Nothing prevents the District Attorney for the county in which Intervenor was sentenced from seeking an execution date, just as were sought for Plaintiffs Brown, Cox, Sims, and

Fairbank.4 The San Mateo District Attorney’s Office, where Intervenor was sentenced, has

indicated its desire to set execution dates and to circumvent the completion of this Court’s

review of the pending constitutional challenges. Doc. 663. If Intervenor is not permitted to

intervene in this action it is likely that the San Mateo District Attorney will set an execution

date before this Court’s review of the execution protocol, defendants’ execution practices, and

its facilities can be completed. Therefore, Intervenor cannot adequately protect his interests and

is at unnecessary risk of unconstitutional harm absent intervention in this action and a stay of

execution. See Doc. 563 (deliberate and expeditious review “will be possible only if executions

are not scheduled until this review is complete.”).

Intervenor’s counsel has requested Defendants’ counsel to stipulate to intervention and

for a stay in light of this Court’s many orders granting intervention and stays in 2011, 2012,

2013, 2017, and 2018, and the fact that there have been no factual or legal changes with regard

to the predicate of those orders. Defendants’ counsel has denied this request.5

4 The San Joaquin County District Attorney pursued an execution date in Ventura County for Plaintiff Morales on September 14, 2010 notwithstanding this Court’s stay of execution in favor of Mr. Morales. Defendants’ counsel, the Attorney General, took no action to stop this undertaking despite its knowledge of the stay order and the fact that it is the chief law enforcement officer in the state.

5 While this motion is properly noticed for hearing on December 6, 2018 under this Court’s Local Rules and this Court’s published Weekly Court Calendar Schedule for Civil Law & Motion, Intervenor will seek to shorten the time for the motion to be heard under Local Rule 6- 1(b) if any attempts are made to set his execution date.

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III. Intervenor’s Motion to Intervene Should Be Granted

A. Introduction

Plaintiffs’ Fourth Amended Complaint for Equitable and Injunctive Relief

(“Complaint”, Doc. 428, attached hereto as Exhibit “A”) before this Court is incorporated

herein by reference. Intervenor joins in the Complaint in all its particulars as it currently is set forth.

A federal court must permit intervention as of right by anyone who files a timely motion and who “claims an interest relating to the . . . transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R.

Civ. P. 24(a)(2). Alternatively, “a court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question of fact in common.” Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996); see also Fed. R. Civ. P. 24(b). Federal Rule of Civil Procedure Rule 24 traditionally has received a liberal construction in favor of applicants for intervention. Citizens for Balanced Use v.

Montana Wilderness Ass’n, 647 F3d 893, 897 (9th Cir. 2011) (“broadly interpreted in favor of intervention”).

This Court already has ruled several times that intervention in this action is permitted and required for capital prisoners “whose direct and collateral attacks on their convictions and sentences have concluded” and are eligible for execution dates under state law. Doc. 606 at 1,

4. The interventions of Raley, Fairbank, Cox, Pinholster, Payton, Cooper, Belmontes, Hayes,

Boyer, Deere, Heishman, Sully, Cunningham, Mickey, Hector Ayala, Samayoa, Cummings,

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Zapien, Ronaldo Ayala, and Visciotti were granted even though the State did not have a final approved protocol in place, amendments to the Complaint ultimately will be required, and despite Defendants’ oppositions to the motions. Doc. 563 at 4, 6; Doc. 581; Doc. 586; Doc.

606; Doc. 620; Doc. 631; Doc. 655. The Court concluded that the intervenors were, “for purposes of the present litigation … identically situated” to existing Plaintiffs and therefore granted their motions to intervene and issued stays of execution. Doc. 563 at 4 (granting intervention to Raley, Fairbank, and Cox); Doc. 581 at 4 (granting intervention to Cooper); Doc.

586 at 4 (granting intervention to Pinholster and Payton); Doc. 606 at 1-2 (granting intervention to Belmontes, Hayes, Boyer, Deere, Heishman, Sully, Cunningham, Mickey, Hector Ayala,

Samayoa, and Cummings); Doc. 620 (granting intervention to Zapien); Doc. 631 (granting intervention to Ronaldo Ayala); Doc. 655 (granting intervention to Visciotti).

Intervenor here is in exactly the same position. “The Court must treat identically situated persons the same. Accordingly, the Court must permit [Intervenor] to intervene and must stay his execution until the present litigation is concluded.” Doc. 581 at 4. Intervenor satisfies the standards both for intervention as of right and for permissive intervention.

B. Intervenor’s Motion to Intervene Is Timely

In determining whether a motion to intervene is timely, courts consider three factors:

“the stage of the proceedings, the prejudice to existing parties, and the length of and reason for the delay.” League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir.

1997); Fed. R. Civ. P. 24(b)(3) (“In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”).

Timeliness is to be construed broadly in favor of the party seeking intervention. Westlands

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Water Dist. v. United States, 700 F2d 561, 563 (9th Cir. 1983). All three factors weigh in favor

of granting this motion to intervene.

This matter is still in its initial stages. This Court has just adopted a litigation schedule for the filing of a fifth amended complaint, and for a briefing schedule to follow for any facial challenges to the complaint. Doc. 688. As this Court has noted, “[Intervenor] can join in the forthcoming amended complaint and all Plaintiffs collectively can address the pleading deficiencies Defendants cite, if warranted.” Doc. 655 at 4. The litigation thus is not “beginning to wind itself down,” such that any additional delay caused by intervention is “relevant to the timeliness calculus.” League of United Latin Am. Citizens, 131 F.3d at 1304.

Intervenor is not aware of any prejudice to existing parties, and counsel for Plaintiffs have no objection to the intervention. Intervenor’s interests are identical to those of the other

Plaintiffs. See Donnelly v. Glickman, 159 F.3d 405, 411 (9th Cir. 1998) (upholding the denial of a motion to intervene because “the interests of plaintiffs and the proposed intervenors ‘are in direct opposition,’ resulting in prejudice to existing parties.”). Intervenor does not seek to

“relitigate matters which have previously been litigated,” raise any claims other than those raised by Plaintiffs, or assert any claims against Plaintiffs. United States v. Oregon, 745 F.2d

550, 553 (9th Cir. 1984) (holding that the state of Idaho could intervene in litigation concerning fishing on the Columbia River when “Idaho has disclaimed any intent to relitigate matters which have previously been litigated, to raise any claims unrelated to the Tribes’ treaty fishing rights, or to assert any claims against the other states.”).

Intervenor has not delayed in bringing his claims.

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C. Intervenor is Entitled to Intervention as of Right.

A federal court must permit intervention as of right by anyone who files a timely motion

and “claims an interest relating to the . . . transaction that is the subject of the action, and is so

situated that disposing of the action may as a practical matter impair or impede the movant’s

ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R.

Civ. P. 24(a)(2).

1. Intervenor’s Interests in This Matter Are Identical to Those of Plaintiffs.

Intervenor joins in the Fourth Amended Complaint filed on behalf of Plaintiffs on

October 8, 2010 and notes that all questions of law and fact related to his claims are identical in all material aspects to those in the Fourth Amended Complaint.

Like Plaintiffs, Intervenor is a condemned inmate who has exhausted his § 2254 claims.

Further, like Plaintiffs, Intervenor is at risk of being subjected to the unconstitutional application of the execution protocols as described within the Fourth Amended Complaint.

Therefore, Intervenor’s interests in the instant litigation are identical in all material aspects to those of Plaintiffs, such that Intervenor is properly subject to intervention as a matter of right.

2. Without Intervention, Intervenor is Practically Impaired and Impeded from Protecting His Fifth, Eighth, and Fourteenth Amendment Interests in Avoiding Execution by an Unconstitutional and Arbitrary Procedure.

Intervenor must be allowed to intervene in order to protect his interests. Intervention as

of right must be granted where, as here, the disposition of the action would put the movant at a

practical disadvantage in protecting the movant’s interests. See United States v. Oregon, 839

F.2d 635, 638 (9th Cir. 1988) (intervention as of right is proper when factual determinations in

lawsuit challenging conditions of state mental health facility would have persuasive stare

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decisis effect in subsequent litigation by residents of facility); Citizens for Balanced Use v.

Mont. Wilderness Ass’n, 647 F.3d 893, 900-01 (9th Cir. 2011) (intervention mandated when the

existing parties do not adequately represent the movant’s interests); see also Fed. R. Civ. P.

24(a)(2).

Here, although Intervenor shares identical interests in the legal claims propounded by

Plaintiffs, his specific interest in avoiding execution by an unconstitutional protocol – a protocol involving a demonstrated risk of severe pain – remains inadequately represented by the existing

Plaintiffs. See Citizens for Balanced Use, 647 F.3d at 900-01; Fed. R. Civ. P. 24(a)(2). As is

clear from the treatment of the various Plaintiffs already admitted to this action, Intervenor must

be allowed to intervene in order to assure that his individual challenge to the lethal injection

protocol will be heard and that he will not be subjected to the unconstitutional application of the

challenged protocol. See Doc. 563 at 5-6.

Unless Intervenor is permitted to intervene, the State of California may well set an

execution date and may execute Intervenor while this lawsuit is pending. The likelihood that

the State of California will take such an action is demonstrated by similar actions it has

undertaken in the past with regard to Plaintiffs Brown, Fairbank, and Cox, all of whom were

subject to attempts to execute them prior to this Court’s order allowing their intervention and

staying their individual executions. This is particularly likely in Intervenor’s case given the San

Mateo District Attorney’s noticed intent to schedule executions while this Court’s review is

pending. See Doc. 663. Only by intervening in this lawsuit does Intervenor obtain some measure of security against execution by an unconstitutional protocol pending the resolution of this matter. See Georgia v. Ashcroft, 539 U.S. 461, 477 (2003) (intervention properly granted to private parties in state’s action seeking judicial clearance of a legislative redistricting plan under

Excerpts of Record - 28 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 689 Filed DktEntry: 10/31/18 15-2, Page Page 18 21 of of 23 297 the Voting Rights Act when private parties identified interests not adequately represented by existing parties), superseded by statute on other grounds by 52 U.S.C. §§ 10304(b), (d) as recognized by Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1261 (2015).

Therefore, Intervenor has demonstrated that he meets the requirements for intervention as a matter of right and this Court should grant his request accordingly.

D. Intervenor Meets the Standards for Permissive Intervention

“[A] court may grant permissive intervention where the applicant for intervention shows

(1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question of fact in common.” Nw.

Forest Research Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996); Fed. R. Civ. P. 24(b).

Intervenor satisfies each of the above factors.

1. This Court Has Independent Grounds for Jurisdiction

Intervenor’s claims arise under the Eighth and Fourteenth Amendments to the United

States Constitution and 42 U.S.C. § 1983. This Court has independent grounds for jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights).

2. Intervenor’s Motion to Intervene Is Timely

As explained above, Intervenor’s motion to intervene is timely.

3. Intervenor’s Claims and the Main Action Have Common Questions of Law or Fact

Intervenor joins in the Fourth Amended Complaint. Plaintiffs’ claims and Intervenor’s claims have the following, among other, common questions of law:

1. Whether the Lethal Injection Protocol violates the Eighth and Fourteenth

Amendments. Complaint at ¶¶ 22-23.

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2. Whether the protocol should provide that “the personnel entrusted with the lethal

injection procedure possess the proper and necessary training, experience, or

expertise,” including assuring “sufficient expertise to insert an intravenous line

properly in all situations, determine if there is a blockage in the intravenous line,

or evaluate whether a prisoner is properly sedated before proceeding with the

painful parts of the execution process.” Id. at ¶¶ 113-114.

3. Present substantial risk that the protocol will not be administered as written,

thereby creating a present substantial risk of severe pain due to, inter alia,

improper placement of the IV and/or inadequately administered anesthesia,

inadequate mixing of the drugs, insufficient administration of the chemicals,

and insufficient monitoring of the inmate. Id. at ¶ 105.

4. Use of an execution chamber that was designed and built prior to the adoption of

any revised procedures and that contains continued remote administration and

inadequate sight lines from the infusion room to the execution chamber itself.

Id. at ¶ 105.

5. Whether Intervenor is entitled to injunctive relief. Id. at ¶ 7.

Plaintiffs and Intervenor are all inmates condemned to death. The Complaint and

Intervenor’s claims only relate to California’s lethal injection protocol. All questions of fact related to Intervenor’s claims are identical to those in the Complaint.

If intervention is not permitted, an execution date could be set for Intervenor and carried out pursuant to a flawed lethal injection protocol. Federal Rule of Civil Procedure 24(b) permits this Court to grant a motion for intervention to avoid such an unconstitutional state action. See Hill v. W. Elec. Co., Inc., 672 F.2d 381, 390-92 (4th Cir. 1982) (permitting

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intervention where the interests of the unnamed class members would no longer be protected by

the named class representatives). Therefore, it is appropriate for the Court to grant Intervenor’s

motion to intervene.

IV. Motion to Stay Execution

This Court should stay Intervenor’s execution and all preparations relating thereto by

extending to him the same stay already in place for Plaintiffs Morales, Brown, Sims, Cox,

Raley, Fairbank, Cooper, Pinholster, Payton, Boyer, Deere, Heishman, Sully, Cunningham,

Mickey, Hector Ayala, Samayoa, Cummings, Zapien, Ronaldo Ayala, and Visciotti. The stay

will secure the orderly review of the revised Lethal Injection Protocol intended by this Court

and ordered by the Ninth Circuit Court of Appeals. The assurances from Defendants’ counsel

that executions would not resume until this litigation was concluded have been shown

insufficient to bind other state actors who may or may not follow the representations made to

this Court by the California Attorney General’s Office.

This Court has already found that a stay is warranted under Nelson v. Campbell. Doc.

424.

There is a strong likelihood of success on the merits, the relative harms to the parties

weigh in favor of Intervenor, and Intervenor has not delayed unnecessarily in bringing the

claim. Beardslee v. Woodford, 395 F.3d 1064, 1068 (9th Cir. 2005).

A. Intervenor is Likely to Succeed on the Merits

Intervenor’s request for an injunction is likely to succeed on the merits. In its

Memorandum of Intended Decision, this Court already has found that the demonstrable unreliability of the State’s execution protocol, and Defendants’ failure to correct it, creates a

substantial risk of an Eighth Amendment violation. Defendants were afforded an opportunity to

Excerpts of Record - 31 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 689 Filed DktEntry: 10/31/18 15-2, Page Page 21 24 of of 23 297 attempt to rectify, among other things, the protocol’s deficiencies and then demonstrate that this has been accomplished. Thus, as it stands, the finding is adverse to Defendants.

Irrespective of whether Defendants may be able to demonstrate that the concerns expressed by the Court have been properly addressed and alleviated, they have not done so and cannot do so by merely promulgating a protocol, given the finding of a constitutional deficiency as applied, and given the previous findings regarding the loss of substantial amounts of drugs; the failure of team members to be able to mix them properly; placement on the team of persons with histories of psychiatric disabilities and smuggling drugs into the prison; the failure of those effectuating executions to attend trainings; the lack of knowledge of the process by those in charge; inadequate facilities; and, the documented misadventures in over half the executions.

This is but a partial list of such significant findings.

Defendants’ disregard for adopted regulations reflects the past sloppy actions of CDCR and the Governor, but it is consistent with the State’s overarching interest that “basically, we want to speed along the case.” Joint Status Conference, RT 9, June 1, 2007.

B. Possibility of Irreparable Harm

Intervenor faces execution pursuant to the same – or a worse – Lethal Injection Protocol which already has required constitutional review by this Court sufficient to grant stays of execution for Plaintiffs Morales, Brown, Sims, Fields, Raley, Cox, Cooper, Pinholster, Payton,

Belmontes, Hayes, Boyer, Deere, Heishman, Sully, Cunningham, Mickey, Hector Ayala,

Samayoa, Cummings, Zapien, Ronaldo Ayala, and Visciotti. Nothing has changed in this regard, and without a stay, Intervenor faces the real possibility of cruel and unusual capital punishment. In fact, Intervenor may be subject to a possibly more inhumane execution depending upon the outcome of pending state court litigation challenging the current method of

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creating an execution protocol, and/or the possibility that Defendants and/or the state criminal

court may institute a procedure of unknown viability that will not have received the thorough

and necessary review this Court ordered in 2006 or which previously was required, exacerbating

issues already found problematic by this Court. As this Court found:

Defendants’ implementation of California’s lethal-injection protocol lacks both reliability and transparency. In light of the substantial questions raised by the records of previous executions, Defendants’ actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation. This is intolerable under the Constitution.

Morales v. Tilton, 465 F. Supp. 2d 972, 981 (N.D. Cal. 2006).

Thus, a stay here is necessary if Intervenor is to avoid the real possibility of cruel and

unusual capital punishment.

C. No Unnecessary Delay

As discussed supra, Intervenor brings this request for a stay promptly after conclusion of

all direct and collateral attacks on his conviction and sentence, and the exhaustion of

administrative remedies. There has been no delay.

/ /

/ /

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V. Conclusion

For the foregoing reasons, Intervenor respectfully requests that this Court grant his motion to intervene and motion to stay his execution.

DATED: October 31, 2018 By: /s/

David A. Senior McBREEN &SENIOR

Richard P. Steinken JENNER & BLOCK

John R. Grele LAW OFFICE OF JOHN R. GRELE

Attorneys for Intervenor GUY ROWLAND

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MICHAEL ANGELO MORALES, et al., Case No. 06-cv-0219 RS 7 06-cv-0926 RS Plaintiffs, 8 DEATH PENALTY CASE v. 9 ORDER SETTING BRIEFING RALPH DIAZ, Acting Secretary of the SCHEDULE 10 California Department of Corrections and Rehabilitation, et. al., Re: Doc. No. 687 11

Defendants.

a 12

13 The parties’ joint statement regarding a litigation schedule has been received and reviewed. 14 In light of plaintiffs’ counsel’s competing case demands, the schedule shall be as follows: 15  The amended complaint is due on or before February 27, 2019. 16  The motion to dismiss or any responsive pleading is due on or before April 29, 17 2019. United States District Court

Northern District of Californi Northern District of 18  Any opposition thereto is due on or before June 13, 2019. 19  Any reply is due on or before July 5, 2019. 20 Requests to exceed the page limit will be addressed on an individual basis. 21 IT IS SO ORDERED. 22

23 Dated: October 30, 2018 ______24 RICHARD SEEBORG United States District Judge 25 26 27 28

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1 XAVIER BECERRA Attorney General of California 2 R. LAWRENCE BRAGG Supervising Deputy Attorney General 3 MICHAEL J. QUINN Deputy Attorney General 4 JOANNA B. HOOD Deputy Attorney General 5 JAY M. GOLDMAN Supervising Deputy Attorney General 6 State Bar No. 168141 455 Golden Gate Avenue, Suite 11000 7 San Francisco, CA 94102-7004 Telephone: (415) 510-3571 8 Fax: (415) 703-5843 E-mail: [email protected] 9 Attorneys for Defendants Diaz, Brown, and Davis 10 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14

15 C 06-0219 RS MICHAEL ANGELO MORALES, et al., C 06-0926 RS 16 Plaintiffs, JOINT LITIGATION SCHEDULE 17 v. 18 Judge: The Honorable Richard G. Seeborg 19 RALPH DIAZ, Acting Secretary of the Trial Date: None Set California Department of Corrections and Action Filed: January 5, 2006 20 Rehabilitation, et al.,

21 Defendants. 22 23 As directed by the Court (ECF No. 686), the parties met and conferred telephonically on 24 October 29, 2018 regarding a proposed joint litigation schedule that contemplates the filing of a 25 fifth amended complaint and responsive pleadings, as well as page limits for responsive 26 pleadings. 27 The parties were unable to come to an agreement as to the time for plaintiffs to file an 28 amended complaint. Defendants propose that plaintiffs have 75 days from the date of this Court’s 1 Joint Litigation Schedule (C 06-0219 RS) Excerpts of Record - 36 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 687 FiledDktEntry: 10/29/18 15-2, PagePage 292 of of 9 297

1 scheduling order to file a fifth amended complaint. Plaintiffs propose that they have 120 days to 2 do so. Defendants’ view is that 75 days is more than sufficient time to prepare a complaint. 3 Plaintiffs’ counsel state that, because of other scheduled legal deadlines, they require more time, 4 discussed infra. 5 The parties have agreed on a briefing schedule for a motion to dismiss. They propose that, 6 once a new amended complaint is filed, defendants will have 60 days to file a motion to dismiss, 7 plaintiffs will have 45 days to file an opposition, and defendants will have 21 days to file a reply. 8 As for page limits regarding a motion to dismiss, defendants propose a 30-page limit for the 9 motion and the opposition, with a 25-page limit for the reply, with the understanding between the 10 parties that requests for agreement on further page extensions will not be unreasonably withheld. 11 Plaintiffs propose that the issue of page limits be deferred, but that the parties will not 12 unreasonably withhold consent to requests to extend page limits. 13 Defendants’ Position on Plaintiffs’ Request For a Four Month Period to File a Complaint 14 Defendants attempted to meet and confer with six plaintiffs’ counsel through numerous 15 email exchanges and a telephone call during the last two weeks. Defendants twice increased the 16 proposed time for plaintiffs to prepare an amended complaint, from 30 days in the last Joint 17 Statement (ECF No. 684 at 15) to 60 days, and then 75 days. 18 Defendants’ view is that it is unreasonable for plaintiffs’ counsel to demand nearly four 19 months to prepare a new complaint, and view that as unacceptable as long as the stays of 20 execution for the plaintiffs remain in place. Defendants detail the above-proposed schedule

21 without waiving their rights to appeal an extension of the stays of execution in this matter. 22 Plaintiff’s Proposed 120-day Schedule

23 The parties have attempted to develop a proposed joint litigation schedule for the filing of 24 a fifth amended complaint. Unfortunately, there has been no agreement about the necessary time 25 to do so. 26 Defendants’ counsel, the Attorney General, underestimates without explanation the time 27 28 required to prepare an amended complaint, and is aware of Plaintiffs’ counsels’ pending 2 Joint Litigation Schedule (C 06-0219 RS) Excerpts of Record - 37 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 687 FiledDktEntry: 10/29/18 15-2, PagePage 303 of of 9 297

1 obligations in this case (the District Attorneys’ appeal in the Circuit Court – response brief due

2 December 24, 2018, and the immediate need to prepare and file a motion to intervene and for stay 3 of execution on behalf of Intervenor Guy Rowland). 4 Plaintiffs’ counsel in this matter have long standing professional calendar obligations on 5 pending matters and family obligations scheduled for the holidays. These full calendars and 6 7 family obligations should come as no surprise; this matter has been stayed and dormant for six 8 years solely as a result of Defendants’ misconduct. Defendants only are agreeable to Plaintiffs

9 filing the amended complaint in 75-days; to wit, in a very short period over the holidays while 10 counsel is undertaking their obligations in the Circuit Court on this case during the exact time 11 period. 12 Counsel for Plaintiffs had these specific professional and personal obligations at the time 13 this Court’s order to amend the complaint was issued on October 15, 2018 (Doc. 686): 14 15 Plaintiffs’ counsel, David Senior, is subject to these court orders and professional

16 obligations:

17 x Lead counsel Hill v. Davis, N.D. Cal., Case No.94-cv-00641-VC – Amended Petition for 18 Writ of Habeas Corpus due on November 5, 2018 in a capital case centered on the State’s misconduct (the current draft exceeds 500 pages of allegations); 19 x Lead counsel Montiel v. Chappell, Case No. 15-99000, 9th Cir. – reply brief due in capital 20 habeas corpus appeal on December 3, 2018; 21 x Counsel Morales v. Brown, Case. No. 18-16547, 9th Cir. – response brief due on the 22 District Attorneys' appeal of this Court’s intervention order on December 24, 2018;

23 x Counsel Morales (Rowland) v. Kernan, Case. No. C 06-0219 RS – prepare and file a motion to intervene and for a stay of execution in response to Defendants’ refusal to 24 stipulate to such relief. 25 26 These are just the immediate obligations for Mr. Senior on CJA appointments, but they

27 consist of a full schedule through the Christmas holidays. Mr. Senior’s primary practice is civil 28 3 Joint Litigation Schedule (C 06-0219 RS) Excerpts of Record - 38 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 687 FiledDktEntry: 10/29/18 15-2, PagePage 314 of of 9 297

1 litigation, and he has numerous pressing responsibilities on those cases, including challenging

2 service of process and presenting a subsequent demur for defendant in an employment matter in 3 Superior Court, Los Angeles County (Flores v. BCI Coca-Cola Bottling Company of Los Angeles, 4 et al, Case. No. BC698576; and defending a water contamination case involving hundreds of 5 plaintiffs and a similar number of commercial defendants in complex case pending in Superior 6 7 Court, Los Angeles County (Aguirre, et al v. Exide Technologies, et al, Case No. BC567401). 8 Mr. Senior also has plans to take time at Christmas to be with his wife and their children who are

9 traveling to spend time together over the holidays. 10 Plaintiffs’ counsel, John Grele, is subject to the identical Circuit Court obligations in this 11 case, as well as the Rowland motion to intervene and for a stay in this Court. Mr. Grele also has 12 these other immediate professional obligations: (1) Opening Brief due November 16, 2018 in a 13 state death penalty case in People v. Volarvich, California Supreme Court, Case No. S164370; 14 15 and (2) trial beginning November 30, 2018 in Yi v. Afrika Town Gardening Collective, Alameda

16 County Superior Court, Case No. RG 15793420. Mr. Grele also has a previously planned family

17 vacation during the first ten days of January, 2019. 18 Plaintiffs’ counsel, Richard Steinken, is admitted pro hac vice in this matter and works in 19 Chicago, Illinois. In addition to the immediate obligations in the Circuit Court and in this Court 20 on this case, he currently is responsible for two post-conviction proceedings that are at third stage, 21 22 and one will be calendared for hearing in the next three months. He presently is involved in 23 ongoing discovery in a court appointed housing case and in three consumer fraud class actions,

24 and has ongoing responsibilities on a number of matters as counsel for the University of Illinois.

25 Mr. Steinken also has plans to take time to be with his wife and five children over the Christmas 26 and New Year’s holidays. 27 The primary difficulty with Defendants’ proposed schedule is that it assumes Plaintiffs’ 28 4 Joint Litigation Schedule (C 06-0219 RS) Excerpts of Record - 39 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 687 FiledDktEntry: 10/29/18 15-2, PagePage 325 of of 9 297

1 counsel is able to disengage from their responsibilities and immediately attend to this matter.

2 That may be the case for Defendants’ counsel, who will have two months to clear their calendars 3 and another two months to file a motion, but it is not the case for Plaintiffs’ counsel. Plaintiffs’ 4 counsel believed that when the matter moved forward, the initial effort would be to serve and 5 receive discovery regarding the facts and evidence that may or may not have attempted to cure 6 7 past constitutional deficiencies, and as relevant to any new procedures. 8 It is unfair to for Defendants to complain that Plaintiffs have multiple counsel able to

9 handle this. Plaintiffs’ counsel has been the three lawyers on the case since 2006, and those 10 lawyers are either counsel for, or the de facto representatives, of nearly all the Plaintiffs. They 11 have taken the laboring oar on the litigation, and will continue to do so. The proposed endeavor, 12 an amended complaint and defending a motion to dismiss, is a fact-laden effort that must draw on 13 a full pre-trial and trial record, with several attempted executions, over the past 13 years. It 14 15 would take other counsel substantially more time to review this material and record, and fashion

16 an amended complaint.

17 To simply ignore the foregoing and now plow ahead, putting the entire onus of that 18 inconvenience on Plaintiffs, is unrealistic and unfair. 19 Drafting the Fifth Amended Complaint is not a simple task. Defendants argue, and the 20 Court has credited, that the new protocol is “substantially different” from the one challenged in 21 22 the Fourth Amended Complaint. In the main, that involves the use of the single drug. However, 23 this also means that Plaintiffs must examine the “substantially different” facts: the drugs, the

24 dosages, the mechanisms for delivery, the intended provenance, team structure and obligations in

25 light of the new drugs and their dosages, and the facilities being used (which were designed for 3 26 27 28 5 Joint Litigation Schedule (C 06-0219 RS) Excerpts of Record - 40 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 687 FiledDktEntry: 10/29/18 15-2, PagePage 336 of of 9 297

1 drugs).1 Expert consultations are necessary, particularly as the dosage is unique to all other

2 jurisdictions. 3 Further, there is an entire history of misadventure in California, most of which is still 4 relevant and which must be included in any complaint. There are four hundred stipulated facts 5 regarding how executions are accomplished in California. The new execution protocol may be in 6 7 its embryonic stage, but it has a long tail of unconstitutional conduct; moving through the record 8 and distilling the relevant details as pertains to these regulations will take time. 2

9 The Fourth Amended Complaint was filed in 2010 when the case had two Plaintiffs, 10 Morales and Brown. The Court ruled that the complaint was properly pled, and that it included 11 feasible alternatives for the then existing execution protocol (Doc. 461), which in many respects 12 is identical to all protocols adopted by Defendants since 2005. Currently, there are over 20 13 Plaintiffs in the case, all of whom must be involved in the pleading alternatives aspect of an 14 15 amendment. Plaintiffs’ counsel must collectively assess and review each unique Plaintiff for

16 issues including health, age, infirmities, and intravenous damage to determine an appropriate

17 alternative for each Plaintiff to the written execution protocol published by Defendants. 18 By contrast, Defendants’ stated effort is simple – argue that whatever alternative offered is 19 insufficient under Glossip to withstand a motion to dismiss. It is worth noting that the Supreme 20 Court likely will be offering an opinion this term that addresses the degree of particularity 21 22 required for the alternative, in Bucklew v. Precythe, Doc. No. 17-8151. Under Defendants’ 23 1 The Court conducted a tour of the new facility. However, as was recognized then, Defendants 24 had decided not to set up the facility as it would be used for an execution, including the rigging for delivery, an issue in 2006. The Court noted that this will necessitate further examination of 25 those facilities. 26 2 At the hearing, Mr. Goldman represented that Mr. Grele had been seeking information through the state’s Public Records Act. The disclosure offered was records disclosed in the APA 27 litigation (mostly draft protocols), and 1600 pages regarding draft protocols. 28 6 Joint Litigation Schedule (C 06-0219 RS) Excerpts of Record - 41 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 687 FiledDktEntry: 10/29/18 15-2, PagePage 347 of of 9 297

1 proposal, that likely will land after Plaintiffs’ amended complaint is filed.3

2 Without the benefit of having the discovery responses which were ordered to be made 3 forthwith by the Court more than seven years ago (Doc. 513), Plaintiffs are tasked now with 4 addressing Defendants’ undertakings during the period that followed (as best as possible), and 5 present their claims. 6 7 Plaintiffs know that Defendants’ protocol and execution practices were unlawful in 2006 8 and continued to be so through several iterations and changes made through 2010 when the

9 Fourth Amended Complaint was filed. Still, nothing has changed in this regard, and there now is 10 no evidence to suggest otherwise. Defendants admit that they lack a trained execution team, 11 drugs for training or an execution, and a completed execution chamber and/or necessary 12 execution equipment. These absences all must be considered for amending the complaint. 13 This Court has been instructed to “take the time necessary to address the State’s newly 14 15 revised protocol in accord with Supreme Court authority.” Morales v. Cate, 623 F.3d 828, 829

16 (9th Cir. 2010). This includes allowing Plaintiffs the time to review the possible changes that

17 have taken place over the past seven years, and amend the complaint. 18 Plaintiff’s respectfully request an order that the amended complaint be filed in 120 days, 19 which Plaintiffs still contend is a very aggressive schedule. In this regard, in the recently filed 20 Joint Status Report, Plaintiffs acquiesced to Defendants overall litigation time period that was 21 22 submitted on June 11, 2018, but requested 120-days to amend the complaint in doing so. Doc. 23 684 at 14. The time request is reasonable under the foregoing circumstances. 24 25 26

27 3 Defendants’ construct is that if “new” law is announced, Plaintiffs have to amend their complaint to satisfy it. Presumably, Plaintiffs will be permitted such an effort, if needed, once 28 Bucklew is decided. 7 Joint Litigation Schedule (C 06-0219 RS) Excerpts of Record - 42 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 687 FiledDktEntry: 10/29/18 15-2, PagePage 358 of of 9 297

1 Dated: October 29, 2018 Respectfully submitted,

2 XAVIER BECERRA Attorney General of California 3 JAY M. GOLDMAN Supervising Deputy Attorney General 4 5 /s/ Jay M. Goldman 6 JAY M. GOLDMAN Supervising Deputy Attorney General 7 Attorneys for Defendants Diaz, Brown, and Davis 8 9 10 11 12 Dated: October 29, 2018 By: /s/ David A. Senior David A. Senior 13 Sara M. Cohbra Ann K. Tria 14 McBREEN &SENIOR 15 Richard P. Steinken JENNER & BLOCK 16 John R. Grele 17 LAW OFFICE OF JOHN R. GRELE Attorneys for Plaintiffs 18 19 20 GENERAL ORDER 45 ATTESTATION 21 Per General Order 45, Section X.B. I hereby attest that the concurrence in the 22 filing of this document has been obtained from all signatories. 23 Dated: October 29, 2018 _/s/ Jay M. Goldman______24 JAY M. GOLDMAN

25 SF2007200210 42070318.docx 26 27 28 8 Joint Litigation Schedule (C 06-0219 RS) Excerpts of Record - 43 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 687 FiledDktEntry: 10/29/18 15-2, PagePage 369 of of 9 297

CERTIFICATE OF SERVICE

Case Name: Michael Angelo Morales v. No. C 06-0219 RS Scott Kernan, et al.

I hereby certify that on October 29, 2018, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: JOINT LITIGATION SCHEDULE

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on October 29, 2018, at San Francisco, California.

R. Caoile /s/ R. Caoile Declarant Signature

SF2007200210 42070323.docx

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MICHAEL A. RAMOS, SBN 141025 District Attorney Robert P. Brown, SBN 200844 Chief Deputy District Attorney Sean Daugherty, SBN 214207 Supervising Deputy District Attorney James R. Secord, SBN 126321 Deputy District Attorney COUNTY OF SAN BERNARDINO 303 West Third Street, 5th Floor San Bernardino, CA 92415-0511 (909) 382-7755 ◊ Fax (909) 748-1376

MICHAEL A. HESTRIN, SBN 200300 District Attorney Ivy B. Fitzpatrick, SBN 219316 Managing Deputy District Attorney COUNTY OF RIVERSIDE 3960 Orange Street Riverside, CA 92501 (951) 955-5555 ◊ Fax (951) 955-7640

STEPHEN M. WAGSTAFFE, SBN 78470 District Attorney COUNTY OF SAN MATEO 400 County Center, 3rd Floor Redwood City, CA 94063 (650) 363-4636 Attorneys for the People of the State of California and San Bernardino County, Riverside County and San Mateo County, Applicants in Intervention

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

MICHAEL ANGELO MORALES, et al., CASE NO. C 06-0219 RS C 06-0926 RS Plaintiffs, NOTICE OF JOINT APPEAL vs. CTRM : 3 SCOTT KERNAN, Secretary of the Judge: The Honorable Richard G. California Department of Corrections, et al., Seeborg

Defendants.

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Under Federal Rules of Appellate Procedure 3 and 4, notice is hereby given that

Applicants in Intervention, the District Attorneys of San Bernardino, Riverside and San Mateo Counties, representing the People of the State of California, appeal the above- named case to the United States Court of Appeals for the Ninth Circuit from the Order Denying Motions to Intervene dated July 18, 2018, and entered on the docket July 18, 2018 (ECF No. 676).

Respectfully submitted this 14th day of August, 2018,

MICHAEL A. RAMOS MICHAEL A. HESTRIN STEPHEN M. WAGSTAFFE District Attorney District Attorney District Attorney County of San Bernardino County of Riverside County of San Mateo By: /s/ Robert P. Brown By: /s/ Ivy B. Fitzpatrick /s/ Stephen M. Wagstaffe Robert P. Brown Ivy B. Fitzpatrick Stephen M. Wagstaffe Chief Deputy Managing Deputy District Attorney District Attorney District Attorney

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MICHAEL A. RAMOS, SBN 141025 District Attorney Robert P. Brown, SBN 200844 Chief Deputy District Attorney Sean Daugherty, SBN 214207 Supervising Deputy District Attorney James R. Secord, SBN 126321 Deputy District Attorney COUNTY OF SAN BERNARDINO 303 West Third Street, 5th Floor San Bernardino, CA 92415-0511 (909) 382-7755 ◊ Fax (909) 748-1376

MICHAEL A. HESTRIN, SBN 200300 District Attorney Ivy B. Fitzpatrick, SBN 219316 Managing Deputy District Attorney COUNTY OF RIVERSIDE 3960 Orange Street Riverside, CA 92501 (951) 955-5555 ◊ Fax (951) 955-7640

STEPHEN M. WAGSTAFFE, SBN 78470 District Attorney COUNTY OF SAN MATEO 400 County Center, 3rd Floor Redwood City, CA 94063 (650) 363-4636 Attorneys for the People of the State of California and San Bernardino County, Riverside County and San Mateo County, Applicants in Intervention

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

MICHAEL ANGELO MORALES, et al., CASE NO. C 06-0219 RS C 06-0926 RS Plaintiffs, NOTICE OF JOINT APPEAL vs. CTRM : 3 SCOTT KERNAN, Secretary of the California Judge: The Honorable Richard G. Department of Corrections, et al., Seeborg

Defendants.

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Under Fed. R. App. P. 12(b), and Ninth Circuit Rule 3-2(b), counsel signing the notice of appeal assert that they represent the People of the State of California via Applicants in Intervention, the District Attorneys of the counties of San Bernardino, Riverside and San Mateo, and no other parties. Applicants in Intervention are the only three appellants in this appeal. Below is a roster of the parties to this action, identifying counsel for each by name, address, telephone number, and email address. DATED: August 14, 2018

MICHAEL A. RAMOS MICHAEL A. HESTRIN STEPHEN M. WAGSTAFFE District Attorney District Attorney District Attorney County of San Bernardino County of Riverside County of San Mateo

By: /s/ Robert P. Brown By: /s/ Ivy B. Fitzpatrick /s/ Stephen M. Wagstaffe Robert P. Brown Ivy B. Fitzpatrick Stephen M. Wagstaffe Chief Deputy Managing Deputy District Attorney District Attorney District Attorney

Plaintiffs Aminoff, Jonathan Charles (Cal. Bar No. 259290) Office of the Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012 (213) 894-2854 [email protected] (Counsel for Albert Greenwood Brown)

Carrillo-Orellana, Susel Beatriz (Cal. Bar No. 229874) Office of the Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012 (213) 894-1883 [email protected] (Counsel for William C. Payton)

Cohbra, Sara Melissa (Cal. Bar No. 193270) Law Office of Sara Cohbra 119 Tookany Creek Parkway Cheltenham, PA 19012 (415) 515-4744 [email protected] (Counsel for Michael A. Morales)

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Dahlstrom, Kelly Elizabeth (Cal. Bar No. 228552) Office of the Federal Public Defender Capital Habeas Unit 411 West Fourth Street Suite 7110 Santa Ana, CA 92701 (714) 338-4530 [email protected]

(Counsel for Michael A. Morales, Raynard Cummings and John Louis Visciotti)

Doherty, Jean M. (Cal. Bar No. 264308) Jenner and Block LLP 633 West 5th Street Suite 3500 Los Angeles, CA 90071 (213) 239-5172 [email protected]

(Counsel for Michael A. Morales and Albert Greenwood Brown)

Drozdowski, Mark Raymond (Cal. Bar No. 166669) Office of the Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012-4202 (213) 894-2854 [email protected]

(Counsel for Robert G. Fairbank)

Garvey, Susan Elizabeth (Cal. Bar No. 187572) Habeas Corpus Resource Center 303 Second Street Suite 400 South San Francisco, CA 94107 (415) 348-3800 [email protected]

(Counsel for Mitchell Carlton Sims)

Grele, John R. (Cal. Bar No. 167080) Law Office of John R. Grele 1000 Brannan Street Suite 400 San Francisco, CA 94103 (415) 655-8776 [email protected]

(Counsel for Michael A. Morales, Albert Greenwood Brown and Tiequon A. Cox

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Hile, Norman C. (Cal. Bar No. 57299) Orrick Herrington & Sutcliffe LLP 400 Capitol Mall Suite 3000 Sacramento, CA 95814 (916) 329-7900 [email protected]

(Counsel for Kevin Cooper)

Kennedy, Sean Kevin (Cal. Bar No. 145632) Office of the Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012 (213) 894-5063 [email protected]

(Counsel for Scott Lynn Pinholster)

Morrison, Kelly Marie (Cal. Bar No. 255513) Jenner and Block LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6000 [email protected]

(Counsel for Michael A. Morales and Albert Greenwood Brown)

Parente, Michael Lawrence (Cal. Bar No. 208861) Office of the Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012 (213) 894-1883 [email protected]

(Counsel for William C. Payton)

Peakheart, Statia (Cal. Bar No. 200363) P.O. Box 531967 Los Angeles, CA 90053 (310) 692-5500 [email protected]

(Counsel for Raynard Cummings

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Plunkett, Cliona R. (Cal. Bar No. 256648) Habeas Corpus Resource Center 303 Second Street Suite 400 South San Francisco, CA 94107 (415) 348-3800 [email protected]

(Counsel for Mitchell Carlton Sims)

Rocconi, Margo Ann (Cal. Bar No. 156805) Office of the Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012 (213) 894-2854 [email protected]

(Counsel for Scott Lynn Pinholster and William C. Payton)

Senior, David Andrew (Cal. Bar No. 108579) McBeen & Senior 1900 Avenue of the Stars Eleventh Floor Los Angeles, CA (90067) (310) 552-5300 [email protected]

(Counsel for Michael A. Morales, Albert Greenwood Brown and Tiequon A. Cox)

Spelman, Kate Tainsky (Cal. Bar No. 269109) Jenner and Block LLP 633 West 5th Street Suite 3500 Los Angeles, CA 90071 (213) 239-5171 [email protected]

(Counsel for Michael A. Morales and Albert Greenwood Brown)

Steinken, Richard P. (admitted pro hac vice) Jenner and Block LLP 353 North Clark Street Chicago, IL 60654-3456 (312) 222-9350 [email protected]

(Counsel for Michael A. Morales)

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Tria, Ann-Kathryn Rose (Cal. Bar No. 259138) McBreen & Senior 1900 Avenue of the Stars Eleventh Floor Los Angeles, CA 90067 (310) 552-5300 [email protected]

(Counsel for Michael A. Morales, Albert Greenwood Brown, Fernando Belmontes, Jr., Royal Kenneth Hayes, Richard Delmer Boyer, Ron Deere, Harvey Lee Heishman, Anthony Jack Sully, Albert Cunningham, Douglas Mickey, Hector Ayala, Richard Samayoa, Conrad Jess Zapien and Ronaldo Ayala)

Weston, Benjamin David (Cal. Bar No. 240641) McBreen & Senior 2029 Century Park East Third Floor Los Angeles, CA 90067 (310) 552-5300 [email protected]

(Counsel for Michael A. Morales)

Defendants Bragg, Robert Lawrence (Cal. Bar No. 119194) California State Attorney General’s Office Correctional Law Section 1300 I Street Suite 125 Sacramento, CA 94244 (916) 445-2595 [email protected]

(Counsel for Edmund G. Brown, Jr., Governor of California; Scott Kernand, Secretary of the California Department of Corrections; Ronald Davis, Warden of San Quentin State Prison and Jeffrey A. Beard, Former Secretary of the California Department of Corrections

Goldman, Jay Michael (Cal. Bar No. 168141) California State Attorney General’s Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 (415) 510-3571 [email protected]

(Counsel for Edmund G. Brown, Jr., Governor of California; Scott Kernan, Secretary of the California Department of Corrections and Rehabilitation; Ronald Davis, Warden of San Quentin State Prison; Arnold Schwarzenegger, Former Governor of California; Jeffrey A. Beard, Former Secretary of the Department of Corrections and Rehabilitation; Vincent Cullen, Former Acting Warden of San Quentin State Prison and Michael Martel, Former Acting Warden of San Quentin State Prison)

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Hood, Joanna Breiden (Cal. Bar No. 264078) California State Attorney General’s Office 1300 I Street Sacramento, CA 95814 (916) 210-7343 [email protected]

(Counsel for Edmund G. Brown, Jr., Governor of California; Scott Kernan, Secretary of the California Department of Corrections and Rehabilitation and Ronald Davis, Warden of San Quentin State Prison

Kirschenbauer, Marisa Y. (Cal. Bar No. 226729) California State Attorney General’s Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 (415) 703-1380 [email protected]

(Counsel for Edmund G. Brown, Governor of California; Jeffrey A. Beard, Former Secreatary of the California Department of Corrections and Rehabilitation and Kevin Chappell, Former Warden of San Quentin State Prison)

Matthias, Ronald Stephen (Cal. Bar No. 104684) California State Attorney General’s Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 (415) 510-3823 [email protected]

(Counsel for Jeffrey A. Beard, Former Secretary of the California Department of Corrections and Rehabilitation and Robert L. Ayers, Former Warden of San Quentin State Prison)

McClease, Kelly Lynn (Cal. Bar No. 236276) California Department of Corrections and Rehabilitation P.O. Box 942883 1515 S Street Suite 319-S Sacramento, CA 94283-0001 (916) 323-5448 [email protected]

(Counsel for Robert L. Ayers, Jr., Former Warden of San Quentin State Prison)

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Patterson, Thomas Stuart (Cal. Bar No. 202890) California State Attorney General’s Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 (415) 703-5727 [email protected]

(Counsel for Arnold Schwarzenegger, Former Governor of California; Jeffrey A. Beard, Former Secretary of the California Department of Corrections and Rehabilitation and Vincent Cullen, Former Acting Warden of San Quentin State Prison

Quinn, Michael James (Cal. Bar No. 209542) California State Attorney General’s Office Correctional Law Section 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004 (415) 703-5726 [email protected]

(Counsel for Edmund G. Brown, Jr., Governor of California; Scott Kernan, Secretary of the California Department of Corrections and Rehabilitation; Ronald Davis, Warden of San Quentin State Prison; Arnold Schwarzenegger, Former Governor of California; Jeffrey A. Beard, Former Secretary of the California Department of Corrections and Rehabilitation; Robert L. Ayers, Jr., Former Warden of San Quentin Prison; Kevin Chappell, Former Warden of San Quentin State Prison; Vincent Cullen, Former Acting Warden of San Quentin Prison and Michael Martel, Former Acting Warden of San Quentin State Prison)

Miscellaneous Ferreira, Brentford Joseph (Cal. Bar No. 113762) 5318 West Temple Street Suite 540 Los Angeles, CA 90012 (213) 974-5908 [email protected]

(Counsel for Los Angeles County District Attorney’s Office)

Hanisee, Michele A. (Cal. Bar No. 187430) Los Angeles District Attorney’s Office 320 West Temple Street Suite 540 Los Angeles, CA 90012 (213) 974-5908 [email protected]

(Counsel for Los Angeles District Attorney’s Office)

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Krishnan, Ajay (Cal. Bar No. 222476) Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 (415) 391-5400 [email protected]

(Counsel for Pacific News Service and San Francisco Progressive Media Center)

Millman, Michael G. (Cal. Bar No. 45639 – Deceased, no other counsel listed) California Appellate Project 101 Second Street Suite 600 San Francisco, CA 94105 (415) 495-0500

(Counsel for California Appellate Project)

Olson, Karl (Cal. Bar No. 104760) Cannata, O’Toole, Fickes & Almazan LLP 100 Pine Street San Francisco, CA 94111 (415) 409-8904 [email protected]

(Counsel for The Sacramento Bee; Los Angeles Times Communications, LLC; McClatchy Newspapers, Inc. and San Francisco Chronicle)

Barbara Sheldon (Cal. Bar No. 137740 – Inactive, no other counsel listed) Office of the Inspector General P.O. Box 348780 Sacramento, CA 95834 (916) 830-3600

(Former Counsel for Office of the Inspector General)

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XAVIER BECERRA Attorney General of California JAY M. GOLDMAN Supervising Deputy Attorney General MICHAEL QUINN Deputy Attorney General State Bar No. 209542 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 501-3611 Fax: (415) 703-5799 E-mail: [email protected]

R. LAWRENCE BRAGG Supervising Deputy Attorney General JOANNA B. HOOD Deputy Attorney General State Bar No. 264078 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-7334 Fax: (916) 324-5205 E-mail: [email protected] Attorneys for Defendants Brown, Davis and Kernan IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

Case No. C 06-0219 RS MICHAEL ANGELO MORALES, et al., NOTICE RE: FINALIZATION OF LETHAL Plaintiffs, INJECTION PROTOCOL v. Judge: The Honorable Richard G. Seeborg Trial Date: Not Set Action Filed: January 5, 2006

KERNAN, et al., Defendants.

In compliance with this Court’s November 22, 2016 order (ECF No. 593), Defendants notify this Court that a one-drug lethal injection protocol was finalized and filed with the California Secretary of State, effective March 1, 2018. A true and correct copy of the Notice of Filing and Printing Only, and the new regulations, are attached to this notice. Defendants further

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notify this Court that this protocol is the subject of litigation in the matter of Masters, et al. v. Kernan, et al., Marin County Superior Court No. CIV1800580, filed on February 16, 2018. Dated: March 8, 2018 Respectfully submitted,

XAVIER BECERRA Attorney General of California JAY M. GOLDMAN Supervising Deputy Attorney General MICHAEL QUINN Deputy Attorney General JOANNA B. HOOD Deputy Attorney General

/s/ R. Lawrence Bragg

R. LAWRENCE BRAGG Supervising Deputy Attorney General Attorneys for Defendants Brown, Davis and Kernan

SF2007200210 33309008.docx

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ATTACHMENT

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State of California Office of Administrative Law

In re: ~ NOTICE OF FLING AND PRINTING ONLY Department of Corrections and Rehabilitation Government Code Section 11343.8 Regulatory Action:

Title 15, California Code of Regulations OAL Matter Number: 2018-0129-02

Adopt.sections: 3349.1, 3349.2, 3349.3, 3349.4, 3349.5, 3349.6, OAS Matter Type: File and Print Only(FP) 3349.7, 3349.8, 3349.9 Amend sections: 3349 Repeal sections:

This request for filing and printing by the California Department of Corrections and Rehabilitation ("Department") concerns the lethal injection process for inmates condemned to death. This action is exempt from the Administrative Procedure Act pursuant to Penal Code section 3604.1.

OAL filed this regulations) or orders) of repeal with the Secretary of State, and will publish the regulations) or orders) of repeal in the California Code of Regulations.

~- Date: March 1, 201 a - ~` ~ f Kevin D. Hull Senior Attorney

For: Debra M. Cornez Director

Original: Scott Kernan, Secretary Copy: Josh Jugum

Excerpts of Record - 59 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, PageFor use552 of by of Secretary62 297 of State only TATEOFCALIFORNIA--OFFICEOPADMINISTRATIVELAW - -' ~ ~, `-- i ~ ~. ~$@~.I~(1$trUCtIO11S OIl NOTICE P,UEiLICATIOi\i1REGU~1~~@~3~l5 5't~~N46S511~'~$ .' ~ '~ , '~~ reverse} '.. _. ~•...- . I _ _ _ iTD. aoo (REv. Oi-2013) ' -.. _ _ — '~ rvO~~IBER ERGENCY NUMBER OAl FILE N07ICE FILE NUMBER rcr~' G' `~ NUMBERS ~ ~ Z. ___ ~ ~ '~ ~, t~ For use by Office of Administrative Law (OAL) on y ~~~~' ~ Vn ih~ o~ of

~~y,~.a ..

_ - - ~ ,

NOTICE REGUTATION5 AGENCY WITH RUIEMAKINGAUTHORITY California Department of Corrections and Rehabilitation 17-0347

4. PUBLICATION OF NOTICE (Complete for publication in Notice Register) ____._d.~.~__~______.u______^_____...__~._~~-----~._~~.___.~_____~_.____---- i. SUBJECT OF NOTICE 1 TITLES} ~ FIRSTS~~

4. AGENCY CONTACT PERSON re rroposea ~~ Qxher Ate'+vwyry rrcvrv~cv ~vv ~ ~~c ~.0 ~ ~~ ~~~ ~.~.,~.~. { -_-.- -.• -. •.- pA~ USE ❑ Approved as ~ APProved as Disapproved!.; ~~ L~ ~ Subm~kfed Modified Wigtdrawn B. SUBMISSION OF tiEGULATICINS i~omplete when submitting regulations) 1b. ALL PREVIOUS RELATED OAL REGULATORY ACTION NUMBERS) ta. SUBJECT OF REGULATIONS) Administration of the Death Penalty- Lethal Injection

2. SPECIFY CALIFORNIA CODE Of REGULATIONS 71TLE(S) AND SECTION(5) Oncluding title 26,if toxics related) SECTlON(S) AFFECTED 3349.3, 3349.4, 3349.5, 3349.6, 3349.7, 3349.8, 3349.9 (List all sec#ion numbers) 3349.1, 3349.2, individually. Attach addi#Iona!sheet if-reeeded.D 3349 TITI E(S) 15 3. TYPE OF FILING Regular Ruiemaking (Gov. ~ Compliance: The agency officer named Readopt(Gov. Certificate of ❑Emergency ❑Changes Without Regulatory Code §71346) below certifies that this agency complied with the Code, §11346.1 ih)) Effed (CaI. Code Regs., title ❑ Resubmittal of disapproved or provisions of Gov.Code §§17346.2-17347.3 either 1, §100) ~~'C ~~~~~~ withdrawn nonemergency reguiatio~ was adopted or before the emergency ~ File &Print ~ Print Oniy ~O~u~ filing (Gay. Code §§173493, within the time period required by statute. ~ C 11349.4) f~ ~' ~d disapproved or withdrawn I-"`1 Emergency (Gov. Code, ~ Resubmittai of Other (Specify) ~~'~~r P1'L~c+~ _.~_ ~~'k'~"~ ~ —~~_~~_~ _._ ~—~ §11346.7(b)) emergency filing (Gov. Code, §17346.1) Gov. §i 1347J) 4. ALL BEGINNING AND ENDING DATES OF AVAILABILI'il' OF MODIFIED REGULATIONS AND/OR MATERIAL ADDED TO THE RUIEMAKING FILE itai. Code Regs. title 1,§44 and Code

5. EFFECTIVE GATE OF CHANGES {Gov. Code,§§ 71343.4, 17346.7(d); Cal. Code Regs., title i, §100) Effective January 1, April 1, July 1, or Effective on filing with §70o Changes Wichou[ Effective October 1 {Gov. Code §11343A(a)) ~ Secretary of State ~ Regulatory Effect ~ other (Specify) _ __ _ ENTITY 6. CHECK IF THESE REGUTATIONS REQUIRE NOTICE T0, OR REVIEW, CONSULTATION, APPROVAL OR CONCURRENCE BY, ANOTHER AGENCY OR ~ Fair Political Practices Commission ❑ State Fire Marshal Department of Finance(Form STd. 399)(SAM $6660)

Other (Specify) 7. CONTACT PERSON TELEPHONE NUMBER FAX NUMBER (Optional) E-MAIL ADDRESS (Optio~ap Joshua Jugum 916 445-2228 916 324-6075 [email protected] For use by only g~ 1 certify thatthe attached copy of the.regulatian(s) is a true anti correct copy of the regulations}identified on this farm,that the information specified on this form is true and co„~rr~~ ~rrnl°~t t 1 am the head of the agency taking this action, ar ~ ¢les~gnee of the head of ag ' cy,and am authorized to make this certification. _ _._~ . _— SIGNATURE OF AGENCY HEAD. QR DESIGNEE ~_ DATE ` /~

SCOTT KERNAN, SECRETARY Excerpts of Record - 60 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page 653 of of 62 297

TEXT OF PROPOSED REGULATIONS

In the following, underline indicates new text and ~*^'~ indicates deleted text.

California Code of Regulations, Title 15, Division 3.

Subchapter 4. GENERAL 1NSTITUTIOY REGULATIONS

Title of Article 7.5 is amended to read:

Article 7.5. ~'~^•~rAdministr•ation of Dcath Penalty

333). 1~~lethod ot~ ~Yecution.

Subsections 33~9(a) through 33.19(d) are amended to read:

(a) Inmates sentenced to death shall have the opportunity to elect to have the punishment imposed. by lethal `gas lethal oi- injection. Upon being scr~-eci with the Execution W~an~ant ~T- ~,the inmate shall be seiti~ed with Y~~~~~-- GDCR Forn7 1801-B (P~e~~. O1/18). Service of Execurion Wat~-ant, Warden's Initial ~nteruiew tivhich is :incorporated by reference. The completed CDCR Fonn 1801-B shall be transmitted to the San uentin Warden.

(b} The inmate shall be notified of the: opportunity ~~ ~~•^~ ~~'~"*~~~, to elect lethal has or Iethal injection and that, if the inmate does not choose either lethal gas or let~~al injection within tencalendar days after bein; served with the Eexecution Wes=arrant,. the penalty of death shall be imposed by lethal injection. The inmate's attestation to this service and notification shall be made, in writing and ~vitnessesd utilizing the CDCR 1801 Fornl (Rev. 4'3S X1/18), Notification of Execution Bate and Choice of Execution I~~ethod ~~~hich is ii~coi-~orated b~~ reference. The completed CDCR Forn7 1801 shall be transmitted to the San uentin ~V~=arden.

(c) The iiunate's selection shall be made in ~vritin~ and ~~~itnessed utilizin~~ the CDCR Forte 1801-A 4~9-SOl/18}, {Rev. Choice of Execution I~lethod. ~chich is incoi-porat~d by reference. The completed CDCR Form 1801-A shall be transmitted to the San Quentin ~V~arden.

(d) The in~liate's electiun shall be inevocabl~,, tivith the exception that, if the inmate sentenced to death is nit executed '" 'ti ~ r ~ r~ within the 10 da~period specified by the Exeeution V~%arrant and a new Eexecution Warrant is issued a^*=. _c ~-„'-~~l~~r+'; , ~_+, the sew inmate again shall have the opportunity to elect to have the punishment imposed by lethal gas ar lethal injection, according to the prUcedures set forth in Sections (a),(b), and (c}.

NOTE: Authority cited: Sections 1227 3604 3604.1 `and 505$,' `'Penal Code. Reference: Sections 190, 1227, 3603, 3604 and 5454, Penal Cade.

1Vrew Section Title 3349.E is adopted to read:

3349.1_ .Definitions

Ne~v 3349.1 Presentence is adopted to read:

Far the purpose of Subchapter 4, Article 7.5, the following definitions shall apply:

Text of Regulations Lethal Injection ExcerptsJanuary of 2b,Record 2018 - 61 1 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page 754 of of 62 297

New Subsections 3349.1(a) through 3349.1(v) are adopted Yo` read: responsible ~a) Administrative Assistant -Public Information Officer means the staff member'or members for responding to media inquiries and other duties as assigned.

ilitation

where a (c} Desi~natecl Secz~rity Haz~sin~ means the area desiHated by the San Quentin Warden condemned inmate shall be housed prior to the initial scheduled execution date. Chief ~d) Execzrtion Report means the documents the Team Administrator routes through the San, Quentin The Execution Deputy Warden for the San Quentin Warden's review and signature after an execution. Report shall include: a CDCR Form 2177-A San Quentin State Prison Lethal Infection Infusion Sub- Team Execution Log —Pentobarbital or CDCR Form 2177-B San Quentin State Prison Lethal Injection Infiision Sub-Team Execution Loa. —Thiopental, CDCR Farm 2179 San Quentin State Prison Lethal Infection Intravenous Sub-Team Execution Log, CDCR .Form. 2181 San Quentin State Prison Lethal Infection Team Administrator/Team Supervisor Execution Loa, CDCR Form 2182 Lethal Infection Team Supervisor Execution Report, CDCR Forms 2183 Execution Report Team Member from all Lethal Injection Tearn members, and any documented use of force in accordance with Section 3268.1, Reporting and InvestiQatinQ the Use of Force for Institution/Facility Staff. In addition, the Execution Report shall include all appropriate supplemental reports.

(e) Execution Warrant means the court order specifvin6 a period often days during which a judgment of death shall be carried out pursuant to Penal Code Section 1227.

(fl Infaasion Control Room means the space allocated for the Lethal Injection Chemical preparation area and is the room designed to accommodate the Infusion Sub-Team designated members of the Intravenous Sub-Team, the Team Administrator, Team Supervisor, designated members of the Record Keeping Sub_ Team, San Quentin Litigation Coordinator, and one representative each from the Governor's Office, the Lector General's Office, and the Attorney General's Office.

(g~ Inficsion Sub-Team means the Lethal Injection Team members who are responsible for receiving the Lethal Injection Chemical, preparation of the Lethal Injection Chemical, drawing the Lethal Injection Chemical into syringes, labeling and color coding the s rimes and infusing the Lethal Injection Chemical

(h) Intravenous Sub-Team means the Lethal Injection Team members who are responsible for: placin electrocardiogram leads, insertion of the intravenous catheters, attaching and monitoring the intravenous lines, performing consciousness checks, and crimping uncoupling, and detaching the intravenous lines.

~i) Lethal Injection Chemical means a barbiturate used to perform an execution. = pharmacy, (i) Lethal Injection Chemzcal Supplier means a licensed pharmacy, pharmacist compounding manufacturer, supplier, wholesaler, or distributor.

of three witness ~kl Lethal Infection Facility means the dedicated structure at San Quentin cansistin~ viewin,, rooms, an Infusion Control Room, the Lethal Infection Facility Holding Area, restrooms and the Lethal Injection Room.

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(11 Iethal Irriectio» Facility H~ldin~ Area means the cell and associated area where the inmate is held prior to an execution. - ~T

(m) Letlzul h~iectiofz Roon1 meals the room tivhere the inmate is executed

(n) I,~tl~crl Irr~ection Tearrr means the individuals that comprise tl~e Three sub-teams described in this Article.

~o) ~Lf~as~te~~• E.a-ecirtion File Means the ~erinanent record of all documents related to an execution that is maintained at San Que~ztin.

(p) A7inis~ter~s of the Gos~t~el means a person set~vin~ as an aQeni specific to a systern of beliefs secula~~ or nth~r~x~i cry

{ql Pre-Executioj~ I_o~book means a recol•d of documentation of the conder~ined inmate's acti~~ities requests. coliduct and behavior which shall commence upon receipt of the Execution Warrant

(r) Kecorc~' I~eez~ii~zg Si,rb-Tea~~t means the Lethal Infection Team members who are responsible for documenting each element of the execution and fog• assembling those documents for- inclusion in the Master execution Pile.

Pa»el means the Associate Director Reception Centers the San Quentin W

{t) Sz~i~•iti~al l~c~'vi.sor• means a gerson who by profession or ~~ractice ~~rovide~ spiritual ad~~iee assistance or guidance, religious or otherwise.

_~) Tecarr~ ~Idr~7irzislruto~~ means the Associate Warded who is responsible for providing i~iana erial oversi~,ht of tl~e Lethal Injection Team's training pl-eparation and the performance of assigned duties during an execution.

(v) TeC7m Szr~~er•vis~r means the Captain who is responsihIe for ~rovidir~~ direct supervision of the Legal Injection Team's tT~aiilin~ ~~t-eparatio~i and performance of assigned duties durin~an execution

NOTE: Authority cited: Sections 122 3604 3604 1 and 5058 Penal Code Reference• Sections 190 1227, 3600, 3601, 3602. 3603, 36 4 3 05 3607 3700 5 anc~ 5054 Penal Code• Baze u Rees X2008) 553 U.S. 35 and Towery v. Brewer(201272 F 3d 650

New Section Title 3349.2 is adopted toread:

3349.2 Recruitment, Selection and Annual Review of Lethal Injection Team Members

New Subsections 3349.2(x) ti~e•oi~gh 33~9.2(a)(2)(E) ai•e adopted to react•

~a) Recruitment and Selection Process.

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the (A) The Selection Panel shall review qualifications of, interview, and recommend candidates for the Tearn Supervisor and Lethal Injection Team members. All recommendations shall be subiect to review and approval of the Director Division of Adult Institutions. The Associate Director —Reception Centers shall chair the Selection Panel and ensure the Team Supervisor and Lethal Injection Team members are selected consistent with the criteria established in this section. After selection of the Lethal Infection Team members the Team Administrator shall assign each'member to one of the followi~1 Sub- Teams: Intravenous Sub-Team, Infusion Sub-Team, or Record keeping Sub-Team pursuant to the criteria as set forth in subsection (d) below. Each sub-team shall have a minimum of four members.

~B) The Team Administrator shall select an Intravenous Sub-Team leader from among the Intravenous Sub-Team members. The Intravenous Sub-Team leader shall be qualified in his or her profession to supervise medically trained personnel. The Intravenous Sub-Team .leader shall be .responsible for

assessin~~erformance of each Intravenous Sub-Team member during training and executions, and reportin any concerns about any Intravenous Sub-Team member to the Team Administrator and the Team Supervisor.

~C) The Team Administrator shall select an Infusion Sub-Team leader from among the Infusion Sub- Team members. The Infusion Sub-Team leader shall be qualified in his or her profession to supervise medically trained personnel. The Infusion Sub-Team leader shall be responsible for determinin training curriculum for duties identified in subsection (d~2) for the Infusion Sub-Team, assessingperformance of each Infusion Sub=Team member duri~ training and executions, and reporting any concerns about any Infusion'Sub -Team member to the Team Administrator and the Team Supervisor.

(D) The CDCR may contract with medical bersonnel or a pharmacist to be members of the Lethal Infection Team: The CDCR may also contract with a physician to serve as the physician attending the execution to' declare death.'`Contract personnel sha1T meet all the criteria set forth in subsections (b), (c}, and d .

(E1 Names and identities of the Lethal Infection Team members shall remain confidential.

New Subsections 3349.2(b) through 3349.2(b)(3)(B)2. are adopted to read:

(b) Screening of Lethal Infection Team Candidates.

~ 1) The Selection Panel shall screen and ensure each candidate meets the criteria established for membership on one of the three designated sub'-teams as set forth in subsection (d) below.

~2) The Selection Panel screeningprocess shall include:

~A) Review of all the state employee candidate's available performance evaluations.

~B) Review of the state emplo e~andidate's official personnel, supervisory, and trainin f~ files•

4 Text of Regulations Lethal Injection. ExcerptsJanuary of 26, Record 2018 - 64 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 10 57 of of 62 297

(C) Review of the candidate's current Criminal Identification and Information Report from the California Department of Justice. -

(3~ As part of the screening process, the Selection Panel shall interview each candidate to determine the follo~~in~:

~A~ Personal history and background.

(B~ Professional experience, including the follo~~~in~:

1. Professional experiences that wotiald a2d the candidate in performing Lethal InLe~ction Team member duties.

2. Knowledge, c_om~osure, training, related skill and abili~.

New Subsections 3349.2(c) t~roagh 3349.2(c)(2) are adopted toread:

(c) Criteria for Lethal Injection 'Team membership. Each Lethal Injection Team member shall be selected based on eneral qualifications and specific expertise necessary to effectively carry out the duties of one ofthe specialized scth-team functions.

(1}The foliowin~~eneral criteria shall be utilized in the selection of all state-employed Lethal injection Team members;

fA~ Permanent full time CDCR em~lo

(B~ History of reliable job performance and professional demeanor.

(C~ FZeliable attendance record.

~D~ No corrective action.

(E)No sustained adverse action as reflected in the CDCR Official Personnel file or State Personnel Board records.

(F) Most recent annual em~lovee performance evaluation shall meet or exceed expected standards in all rated areas.

(G) If a CDCR employee, shall not be on probation in the candidate's current classification. This does not appl~to promotions made subsequent to initial placement on the Lethal Infection Team.

tH) A member of the Lethal Injection Team must a.~ree to not work or be assigned to any condemned housing unit. This includes and overtime.

~2) For contracted team members, verification of cw-rent lieensure and review of and disciplinary action taken by any licensin board.

Nevi Subsections 3349.2(4) through 3349.2(4)(3}(B) are adopted to read:

(d1 In addition to the general selection criteria described in subsection 3349.2(cl, each candidate far a specific Lethal Injection Team Sub-Team shall meet the following criteria: Excerpts of Record - 65 Text of Regulations Lethal Injection January 26, 20.1:8 5 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 11 58 of of 62 297

ph siy cian (1Z All members of the Intravenous Sub-Team shall be medically trained personnel• physician, assistant, registered nurse, emergency medical technician, paramedic, or medic. ability ~A) Intravenous Sub-Team members shall provide current certification and licensure to verify the t~erform the following:_

1. Insertion and maintenance of intravenous catheters into peripheral or appropriate veins.

2: Placement of the electrocardiogram leads used during the lethal in'ec~ tion process.

~B) Intravenous Sub-Team members shall have experience settin~up intravenous lines in the last twelve months in the performance of their job duties, unrelated to their duties as a Lethal Injection Team member.

(2} Infusion Sub-Team shall have at least one member who is a physician, physician assistant, - pharmacist, registered nurse, emergency medical technician, paramedic, or medic. All Infusion Sub Team members shall:

~A) Be able to follow the directions provided by the Lethal Infection Chemical Supplier in preparing the Lethal Injection Chemical.

(B) Possess the organizational skills to appropriately label and color code the chemical used during the lethal injection. rop cess•

(3) Record Keeping Sub-Team members shall

(A) Understand the importance of and how to keep accurate records during the lethal infection process.

(B) Demonstrate proficiency in report writing and record keeping

New Subsections 3349.2(e) through 3349.2(e)(4} are adopted to read:

(e) Annual Review of the Lethal Injection Team members shall be conducted in order to ensure continued compliance with selection criteria. The annual review shall be conducted by the Team Administrator during the month ofJune. This shall include review of the following_;

(1) Official personnel, supervisory and trainingfiles, if a state employee.

(2) Most recent performance evaluation, if a state employee.

3) Criminal Identification and.Information. Report.from the California Department of Justice.

4) All related certifications and licensure to ensure they are current.

NOTE: Authority cited: Sections 3604, 3604.1 and 5058, Penal Code. Reference:: Sections 190, 3600, 3603 3604 and 5054 Penal Code• Section 19130 Government Code• United States Constitution Amendment VIII; California Constitution, Art. l; Sections 1, 17 27; Depth-Penalty Case Protective Order dated 4/3/06, Morales v. Woodford, U.S. District Court Northern District of California (No. 5:06-cv- 00219-7F)•

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New Section Title 3349.3 is adopted to read:

3349.3. Lethal Iniectian Team Training.

New Subsection 3349.3(a) is adopted to read:

~a) The Team Administrator sha11 ensure training on the lethal in'ect tion process is provided to each: Lethal Injection Team member.

New Subsection 3349.3(b) is adopted to read:

(b~ Each Lethal Injection Team member shall undergo trainingspecific to their assigned duties durin~an execution.

New Subsections 3349.3(c) through 3349.3(c)(5) are adopted to read:

(c~ Lethal Injection Trainin~Session Requirements.

~l) Training sha11 be conducted at least once. per month for a minimum of eight hours for all Lethal Infection Team members. Training dates will be scheduled by the Teai~i Supervisor and approved by the' Team Administrator and the Say Quenti~~ Warden. The Team Su~e~-eisor shall. determine ti•aiiling curriculum for the record Keevii ~ Sub-Team and trainu ~ for' the Intravenous Sub-Team and Infi~sio~

members must participate in all scheduled training, as specified, unless on ap~~roved leave. The Team Supervisor sha11 attend ~ll Lethal Injection Team training, unless on ap~rove~d leave.

~2) After an Execution Warrant has been served on an inmate, the Team Administrator shall enstu-e the Tearn Supervisor schedules training in the 30 calendar days immediatel~t~receding the initial scheduled ...execution date,

ins mt_ r .mot -a r.' m. _~. ~~ .. _ r_ ..~ _ ..i. --'~ -- _ ..• - -.i ._ ~_ ~ _.. ~• ..~ r•_. the.initial scheduled execution date.

(S) Anv medical personnel who serves as the physician attending_,the execution, includin~~ one contracted pursuant to subsection 3349.2(a~(2)~D) must participate in at least one training; session in the sip months precedin t~ he initial scheduled execution. date and participate in each of the three daily training sessions immediately precedingthe initial scheduled e~ecutian date.

New Subsections 3349.3(d) through 33~ty.3(d)(2) are adopted to read:

~d) Training for all Lethal Infection Team members shall include the following:

,~l~A simulation of'an executionbv lethal injection.

{2) Identification of~potential ~roblelns end recom~iiendations for avoidance or resolution.

New Subsections 3349.3(e) thxough 33=~9.3(e)(6) are adapted to read:

~e ~~rainin~LtaeeifictotheIntravenousSub-Team shall include the following: Excerpts of Record - 67 Text of Regulations Lethal Injection January 26, 20:1$ 7 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 13 60 of of 62 297

~ 1) Use of an electrocardiogram for vital si ns.

(21 Setting up intravenous lines and intravenous drip.

~3) The different sizes of intravenous catheters and determination of the proper size of the catheters to be used, dependent on the size and condition of the vein.

~4) Performance of consciousness checks in accordance with Subsection 3349.7(c).

~5) Monitoring intravenous lines to ensure potency. f61 Crimping, uncoupling, and detaching intravenous lines.

New Subsections 3349.3(f) through 3349.3{f)(5) are adopted to read:

(f? Training specific to the Infusion Sub-Team shall include the following:

(1) Preparation of the Lethal Injection Chemical used in the lethal infection rots cess'

(2) Level and rate of infusion of the Lethal Injection Chemical into the intravenous lines.

(3) Labeling and color coding of the s ringes used in the lethal injection process.

(4) Sequence of syringes used in the lethal in'ectt ion process and the physical effects the Lethal Infection Chemical can have on the inmate as it is administered..

~5 Handling and accountability of the Lethal Injection Chemical.

New Subsections 3349.3(8) through 3349.3(8)(3) are adopted to read:

~~) Trainin~s_pecific to the Record Keeping Sub-Team shall include the following:

~ l) Accurate record keeping.

(2~Report writing.

(3~ Preparation of specific records used to document an execution.

New Subsections 3349.3(h) through 3349.3(h)(2) are adopted to read:

(h) Training Documentation and Records.

(1) The Team Supervisor shall maintain a lethal infection training file. This training; file shall contain a record of all lethal injection training sessions and shall be maintained in a secured location at San Quentin. A copy of the records for training conducted the three calendar days immediatelypreceding the Tl/motor ~i'von~i4i~r~ ~'i~o inii'i o~ cn~o~i~~o~ nvnn»41 ~vs into a~o~~ ~n it~nlii~o~ in tea

(2) During each training session, the designated Record Keeping Sub-Team'member shall document the training on the following CDCR Forms, which are hereby incorporated by reference: CDCR Form 2177-A (01/18), San Quentin State. Prison- Lethal Injection Infusion Sub-Team Execution Lag =

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NOTE: Authority cited: Sections X604 3604 1 and 5058 Yenal Code Reference Sections 194 360; 3604, and 5054, Penai Code; United States Constitution Amendment VIII• California Constitution Art 1 Sections 17, 27..

New.Section Title 3349.4.is .adapted to read:

3349.4 Execution Site Operation.

New Subsection 3349.4(a) is adopted to read:

New Subsections 3349.4(b) through 3349.4(b)(2) are adapted to read:

{b) Tl~e Lethal Infection Facility safe and lockable enclosure containing a refrigerator shall be permanently mounted within the Infusion Control Room

(1) The combination to the safe shall be known anly by the San Quentin Warden the Sai~ Quentin C11ief Deputy Warden, and the Train Administrator

~2) The combination to the safe shall be changed after each execution to maintain ~~ualitti~ control aeeou»tability. and security of the Lethal Injection Chemical

Nevv SubsEctions 3349.4(c) tf~~~ougli 33~9.4(c)(4) are adopted to read: (c) Kev Procedu~~e.

{1) T1~e~ keys for the Lethal Injection haeility shall be ln~ated izl the San Quentzn key control area in a locked box secured under Mass. All access shall be ap rp Dyed by the San Quentin Warden o~• desicrlee

~2) The key allewin~ access to the rtockeu'~o~ shall only ~e issued ~o the fan {~uenti~l W'ar~len zj~e ~'nief Depz~ty Warden, the Team Administ~~at~~- or the Team S~ipervisor

(3) Each t~erson authorized to draw the key to the locked boy: sha11 Ise required to sign the key eonti•ol log; noting the time at key check out reason for entry into the Lethal Injection Facility ~~d time of key return

(4) Each person authorized to draw the keys to the Lethal In'ecl tiOri Facility shall t~ersonally retur•r~ the keys and secure them m the locked box under lass

New Subsections 3349,4(d) through 3349.4(d)(4) are adopted to read:

(d) The Team Supervisor shall conduct and document monthly security and operational infections of the Lethal Injection ~acility, to include the following:

(1) Functionality of equipment

(21 Sut~t~ly inventory Excerpts of Record - 69 Text of Regulations Lethal Injection January 26, 2018 9 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 15 62 of of 62 297

~3 Building maintenance

~4} The Team Supervisor shall document the inspection on the CDCR Form 2137 (01/18), Monthly Security and Operational Inspection Sheet, which is incorporated by reference.

NOTE: Authority cited: Sections 3604, 3604.1 and 5058, Penal Code. Reference: Sections 190, 3603, 3604 3605 and 5054 Penal Code• United States Constitution Amendment VIII• California Constitution Art. 1 Sections 17 27.

New Section Title 3349.5 is adopted to read:

3349.5 Responsibilities and Tasks Uuon Receipt and Service of the Execution Warrant.

New Section 3349.5 Presentence is adopted to read:

Following CDCR's receipt of the Execution Warrant, the following shall occur:

New Subsections 3349.5(a} through 3349.5(d) are adopted to read:

(a) The Litigation Coordinator where the inmate is housed shall identify any pending litigation re ark ding the inmate or the scheduled execution and advise the Warden of the institution where the inmate is housed and the San Quentin Warden. fib) The San Quentin Litigation Coordinator shall create a Master Execution File and insert a copy of all documents transmitted between San Quentin State Prison and the California Department of Corrections and Rehabilitation headquarters, the institution where the inmate is housed if other than San Quentin, or any other agency or organization, pertaining to a scheduled execution.

Division of Adult Institutions, and other appropriate officials as necessary, within 24 hours of receipt of the Execution Warrant. The Director —Division of Adult Institutions shall notify the CDCR Secretary The CDCR Secretary shall notify the Governor's Legal Affairs Secretary. A co~v of the Execution Warrant shall be; delivered.. to the Governor's Le,~al Affairs Secretary within 24 hours of receipt of the Execution Warrant.

(d) The Secretary shall, upon notification of the Execution Warrant, select and appoint three Alienists, as defined in Section 3349.1, to interview and evaluate the inmate to determine his/her sanity pursuant to Penal Code Section 3700.5.. The Director —Division of Adult Institutions shall maintain a list of Alienists with a minimum of six names.

New Subsections 3349.5(e) through 3349.5(e)(6) are adopted to read:

(e) The San Quentin Warden, in conjunction with the Warden of the institution where the inmate is housed, shall:

(l) Coordinate transfer of the condemned male inmate to San Quentin State Prison.

(2 In the presence of an Associate Warden and the Litigation Coordinator of the institution where the inmate is housed serve the Execution Warrant on the inmate to be executed interview the inmate' and document the interview on a CDCR Form 1801-B (Rev. Ol/18), Service of Execution Warrant -Warden's Initial Interview.

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(A) Inform the inmate of the choices of execution method either lethal injection or lethal as and document on the CDCR Form 1801~Rev. 01/18 Notification of Execution Date and Cho2ce of Execution Method.

(B} Instruct the inmate to indicate his/her election of execution method within ten calendar days of the inmate's receipt of the CDCR Form l 801-A (Rev Ol /18) Choice of Execution Method with the explanation that if no election is made lethal injection will be the method of execution

{C) Provide the inmate a copy of CDCR Firms 1801-C (01/18) Request Fir Approval of Witnesses 1801-D (Olii$}, Last Meal Request and 1801-F (Ol/1S) Release of Remains end Burial Arrat~gen~ents which are hereb incorporated by reference.

(3) If there is good reason to believe that a conaeiiined female iruiiate made pre~naslt notifxthe District Attorney pursuant to Penal Code Section 3705 and comply with the provisions of Penal Code Section 3706.

(4) Ensure the inmate has a copy of the current California Code of Re ulatians Title 15 Division 3 for review of general Mules and procedures that sha11 be utilized during the days Ieadin~ u~~ to the date of execution.

(5) Ensure .the apt~ointed Alienists have access to interview and evaluate the inmate pursuant to Penal Code S~ctior3 3700,5.

6 Ensure any information received which ma be relevant to the inmate's sanit is immediate) made available to the Alienists p~r~el.

Nev~~ Subsections 3349.5(f~ trough 3349.5(f~(2)(E) are adopted to-read:

~f~ The San Quentin Warden shall:

(ll Set the initial date a~ld time tar execution. The Execution Warrant shall specify a peri~c~ of 10 days duxin~ which the iud~nient shall be executed. The execution may be c~a~~ried out a~ any time within this ep riod.

~2) if the iiunate~ has cl~c~sen lethal in}ecti~ii on the CBGR Form 1801-A Choice of ~~ecution IV~etliod__ or made no choice, select the Lethal Injection Chemical

(A~ Lethal I~liectit~n Chemical selection sha11 be dine on a case-bv-case basis taking into account ehan~in~ factors such as the availability of a supply of chemical. Tl~e San Quentin Warden shall make the selection in consultation with medical ~~e~sonnel and notify the CDCR Secret~ry of the selection.

(B) CDCR may crn~tract with medical personae) to assist with chemical selection Medical personnel shall be a Medical doctor clinical tohicologist pharn~lacolo~i~t anesthesiologist or other appropriate expert.

(C} The San Quentin Warden shall determine which chemical shall be utilised to perform the ekecution and document the selection on the CDCR Form 1801-A (Rev. 01/18) Choice of Execution Method- CDCR considers the listed chemicals to be equally effecfiive in carrying out the purpose of the regulations The San Quentin Warden shall select one chemical iTom the follow~~or any flame that tl~e~y ~i1av be`

Excerpts of Record - 71 Text of Regulations Lethal Injection January 26, 20.18 11 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 17 64 of of 62 297 known or sold by including their pharmaceutical name, foreign name, generic name, trade name or brand name

Barbiturates: • Pentobarbital • Thiopental

ical Sunbler as defined in subsection 3349.1(il.

•f execution by a court with jurisdiction. the considered for selection.

New Subsections 3349.5(f)(3) through 3349.5(f)(9) are adopted to read:

~3) Inform the Warden of the institution where the inmate is housed of the Lethal Injection Chemical selection.

L) Inform the inmate of the scheduled execution date, that he/she shall be executed by lethal in'eci tion, the Lethal Injection Chemical and amount to be used, document this information on the CDCR Form 1801_A (Rev. Ol/18 ,Choice Of Execution Method, and provide a copy of this form to the inmate.

(5) Meet with the Team Administrator, who shall notify the Team Supervisor and the Lethal In,~ection Team members of the Execution Warrant.

(6) Ensure the Team Administrator, the Team Supervisor and all Lethal Injection Team members involved in the lethal in'eci tion process understand their roles in the scheduled execution by reviewing the following:

(A Training session performance assessments.

~B) Most recent staff performance in job duties for state-employed team members to include annual personnel evaluation and any corrective or adverse action, and an~disciplinary action taken by a state licensing board against any team member.

~C Any other information or concerns expressed b, the Team Administrator, Team Supervisor or Lethal Injection Team Member.

(D Any other information that causes the San Quentin Warden to believe persons identified in subsection ~6) may be unprepared or unable to~perform the duties during a scheduled execution.

X71 Refer the inmate to the Intravenous Sub-Team for a vein assessment to determine the size, location,

rolling veins, hardening of veins, bruising, vein or bone trauma. The alternate backup location maw

~8) Ensure all. institution staff members with specific lethal injection responsibilities are notified of the Execution Warrant.

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~9) Select witnesses pursuant to Penal Code Section 3605;

New Subsections 3349.~(g) through 3349.5{g)(1)(C) are adopted to read:

~~L;Following service of the Execution Warrant, the Warden of the institution where the inmate is housed shall ensure the following occur by the designated staff:

(1) The Associate Warden of the unit where the inmate ishoused shall:

~A~ Ensure the condemned unit staff create aPre-Execution Logbook and at a minimum, conduct hourly checks and document the inmate's activities, requests, conduct and behavior in the inmate's Pre- Execution Logbook.

~B) Il~nmediatelY report any behavior that is bizarre or unusual fo1• anv inmate o1- tulcl~aracteristic for the particular irnnate in writing o~1 CDCR Form 128-B (4/74), Getleral Chrono, which is iticorpor~ted by reference, to the Warden of the institution where the inti~ate is housed the San Quentin Warden, and the Alienists.

~C~ Visit the inmate's housing unit dail a~ nd sign in on the inmate's Pre-Execution Logbook with each visit.

New Subsections 3349,5(g)~2) through 33495(g)(2)(F.) ai•e ado~~ted to read: (2} The Correctional Cotunselor II —Condemned Unit at the instit~~tion where the imnate is housed sha1L

(A~ Maintain daily contact with the inmate and document the inmate's conduct and behavior in the inmate's Pre-Ehe~cution Logbook. Immediately report any behavior that is bizai-~~e o~~ unLisual for• any -inmate or uncharacteristic for the particular inmate iii writin~~to the Associate Warden of t~~e institution where the inmate is housed the Warden of the institution where the inmate is housed tl~e San Quentin warden, and the Alienists.

~B) Update the in~~iate's Notification In Case Of Inmate Death, Serious Injury Or Serious Illness in the Strategic Ot~ender Man~~cine~it System as defined in Scetio~i 3000.

(Cl Submit a report to ihe_ San_Quentin Warden via the Warden of the i~~stitt~ti~n where rll~: inmate is housed consistingof a review of the inmate's case factors and an~bservations of the inmate documented by the assigned Coi•~•cefional Counselor• Iand/or custody staff to determine the inmate's past and present conduct end behavior for inclusion in the CDCR Form 2173 (O1/l8~ 20-Day Pr•e-~xec~ution Report, which is inco~oiatea 1~~~ reference.

~D) Collect the completed CDCR i'orms l 801-C (O1/1 ~), Request For Approval of Witnesses, ]801-D ~Ol/l 8), Last Meal Re~~st ~31d 180 -F (01/18). Release of Remains and Burial Arrangements, within ten calendar days of ~rovidin~the forms to the inmate and forward them to t1~e Liti atg ion Coordinator at the institution where the inmate is housed.

~E} Ensure all non-legal .and nan-Spil•itual Advisor telephone calls made by t11e inmate on an institutional telephone are monitored. Leal and Spiritual Advisor• ca11s shall not be monitored but s}lall be facilitated b~staff. All calls sha]1 be fogged in fhe inmate's Pi•e-Execution Lo b~ ook.

New.Subsections 3~495(g)(3) through 3349.5(gj(5)(B) are adopted toread: Excerpts of Record - 73 Text of Regulations Lethal Injection January 26, 2018: 13 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 19 66 of of 62 297

~3) The Litigation Coordinator at the institution where the inmate is housed sha1L•

~A) Ensure approval for visiting is on file for the inmate's attorneys) and notifythe Visiting Lieutenant.

(B} Notwithstanding Section 3178 schedule attorney visits expeditiously upon request of the inmate's attorne s .

~4) The Warden's Administrative Assistant-Public Information Officer at the institution where the inmate is housed shall act as liaison between the inmate's family and the Warden of the institution where the inmate is housed.

~5) The Visitin~Lieutenant at the institution where the inmate is housed shall:

(A~ Ensure that the attorr~ey~s} for the inmate is afforded expeditious access to the inmate. This may include facilitating attorney visits during weekends and holidays as necessary

~B} Arrange for visitingpursuant to California Code of Regulations, Title 15, Division 3, Subchapter 2, Article 7, Visiting.

New Subsections 3349.5(h) through 3349.5(h)(5) are adopted to read:

(h Sanity Review pursuant to Penal Code Section 3701.

(1) Attorneys may submit in writing any information they believe may have a bearing on evaluating the sanity of an inmate with a scheduled execution date at any time prior to the scheduled execution. This information shall be submitted to the San Quentin Warden who shall forward it to the Alienists.

(2} The Warden where the inmate is housed shall have available for review all psychiatric information pertaining to the inmate known to `psychiatric staff. This information shall be submitted to the San Quentin Warden who shall forward it to the Alienists.

(3) The information in Subsection (h)(1 and (hZ2), together with anY information forwarded to the Warden of the institution where the inmate is housed or the San Quentin Warden re ag rdin~~ the inmate's conduct or behavior, shall be used to determine if there is a food reason to believe the inmate has become insane at any time, pursuant to Penal Code Section 3701. Should the San Quentin Warden, in consultation with the Alienists, find there is a food reason to bel eve'the inmate has become insane at any time, the San Quentin Warden shall notify the District Attorneypursuant to Penal Code Section 3701; via a CDCR Form 2174'(01/18);' Notification. By Warden To The District Attorney Concerning Sanity of Condemned Inmate, which is hereby incorporated by reference.

(4) The Warden where the inmate is housed and the San Quentin Warden shall notify the Director — Division of Adult Institutions and the Secretary of CDCR of any notification to the District Attorney concerning the'sanity of the condemned inmate.

~5) The Secretary of CDCR shall notify the Governor's Leal Affairs Secretary in writing of all referrals to the District Attorney's'office pursuant to Penal Code Section 3701.

NOTE: Authority cited: Sections 636, 1227, 360; 3604.1; 3605; 3700.5, 3701'; 5058, Penal Code, Glossip v. Gross (June 29, 2015, No. 14-7955) 576 U.S. [135 S.Ct. 2726, 2321 Thorbur~n et al. v. A~lnrrrlo~ v Tiltnvr (7(1(1F~1 d(~S F Cnriri 2r1 A/7' T~OY1l1N/ /1~1 /1NN0!'fTnYIQ of nl (TQARI FiFr (`al Ar~r~ dth`-17Rd•

14 Text of Regulations Lethal Injection ExcerptsJanuary of 26, Record 2018 - 74 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 20 67 of of 62 297

983. See also Heckler v. Chanev_~1985 470 U.S. 821; O'Brvan v. McKaskle,~5th Cir. 1984729 F.2d 99:1; Abdur'Rahmaf~ r. Brede:cen, l 81 S.W.3d 292 Tenn. 2005~cert. cleniec~, 126 S.Ct. ?288, 164 L.Ed.2d $13 ~LJ.S. 20 6); .State v. De~~uty, {Del: Super. Ct. 1990 644 A.2d 411. 1LIorEzles i~. Hickman, Case Nos. C 06 21.9 JF and C 06 926 FJ RS, Document 1~To. 78 (February 21, 2006 Order oi~ Defendant's Motion to Proceed with Execution Under Alternative Condition to Order Den~in~ Preliminary Iniunetion~. Refer~n~e; Sections 190, 636, 1227, 3600, 3601, X602, 3603, 3604, 3604.3, 3605, 3700, 3700.5 3701 3702 3703 3704, 3705, 3706 and 5054 Penal Code United States Constitution Amendment VIII; California Constitution, Arta 1, Sections 17, 27, Toi~~e~-v v. Brewer (2012)672 F.3d 650.

New Section Title 3349.6 isadopted to read:

3319.6 Chronolo~v of eventsafter Execution Warrant has beenserved.

New Section 33 9.6 Presentence is adopted to rend:

Once the EXeeution Warrant has been served ot~ the. inmate the following shall occur leading up to scheduled execution date. The proc~dur~s established in this section a1•e based on a timeline; howe~ ,the timeline is subject to change if needed to accommodate unforeseen events.

Ne~v Subsections 33~9.6(a) Through 3349.6(x)(5) are adopted to read:

~)Appro~iinatcly 20 calendar days prior to the initial schedules! execution date and time:

lsure want ,,,,+;,~., :inn c

Each alienist shall comnl~te the CDCR Form 2173. attach his or }per independent nsvchiatric California Women's Facility Warden.

~,3) Tl~e Alienists panel'shall 'submit to the Governorand the San Quentin Warden or, if the inTnate is female, the Cerltra] California Women's Facility Warden, a co~v of the completed CDCR Forin 2173 (Ol/] bl, 20-Day Pre-Execution Report, and shall include a sunlinai°v of the examinations, interviews, and history stated in plain l~noua~e

(4) The Sari Quentin Warden oi~, if the innate is female, the Central California Women's Facility Warden, shall submit the completed CDCR Form ?173 (01 /18~, 20-.Day Pre-Execution Report with a' cover letter, and t11e st~a~~~~1ar-~~ of the int~~ate's conduct az~c? ~ehavi~~~, subtr~itteU b y a Corecctiorlal Counselor II Condemned Unit. to the Director —Division of Adult Institutions and the CDCR Secretary. If the San Quentin Warden or'. iii the inmate is female the Central California Women's Facility Warden, has good reason to believe the inmate has become insane after reviewin any of the three 20-Dare- E~ecution Reports, t11e~ San Quentin Warden shall notif~he District Attorney pursuant to Penal Code Section 37Q1. A single Alienist's reUort c~uestioiung the inmate's sanity is sutticient to tri~~er the requirement that the San Quentin Warden shall notifX the District Attorney. Tl~e notification shall be. via a CDCR Form 2174 ~O1/18}, Notification By Warden To T11e District Attorney Cancernin~ Sanity of Condemned Tnm~~te, which is hereb incorpoT•aCed by reference.

~5) The San~C,uentin Warden or, if the inmate is female, the Central California Women's Facility Warden, shall furnish a copy of the report to counsel for the defendant zip~n his or her request.

New Subsections 3349.6(b) through 3349.6(b)(7)(B) are adopted to read:

fib) Approximately five calendar days prior to the initial scheduled execution date, the following shall occur: Excerpts of Record - 75 Text of Regulations Lethal Injection January 26, 2018 15 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 21 68 of of 62 297

~1) The San Quentin Warden shall ensure the condemned male inmate has been moved to the Desi ng ated Security Housing area.. Condemned female inmates shall be transferred to San Quentin in accordance with subsection (d) and will be housed in the Designated Security Housin ag rea upon arrival.

~2} The Warden'of the institution where the inmate is housed shall ensure the condemned inmate will be under observation 24 hours a day by an officer assigned for that purpose.

(3) The Associate Warden where the inmate is housed shall ensure monitoring of the inmate's behavior is continued by unit staff with documentation completed ever hour in the inmate's Pre-Execution Lobook.

~A) Should the inmate di~lav anv conduct or behavior that is bizarre or unusual for any..inmate or uncharacteristic for the particular inmate, the Warden of the institution where the inmate is housed and the San Quentin Warden shall be notified institutional staff.

~B) The Warden of the institution where the inmate is housed and the San Quentin t~Varden shall monitor anv reported chap e~ s in the inmate's behavior utilizi~~the provisions of Penal Code Section 3701. If there is ~,00d reason to believe that the inmate has become insane it shall be re op rted by the San Quentin Warden to the Secretary of the CDCR in writing via the Director -Division of Adult Institutions in addition to reportin~~it to the District Attorney.

~4) The Correctional Counselor II —Condemned Unit shall begin daily briefings. for the Warden of the institution where the inmate is housed re~iardin~ the inmate's needs, requests, and behavior...

(5) The inmate shall have 24-hour access to a telephone for attorney contact. Leal calls will not be monitored but shall be facilitated by staff. All calls shall be logged in the inmate's Pre-Execution Logbook.

(6) Reli~~ious accommodations.

(A) State em 1~oYed Spiritual Advisors selected by the inmate shall be allowed to perform their spiritual functions at the inmate's cell front between the hours of 0600 to 2200 and b~elephone at an~ime.

0600 to 2200 or by telephone at anv time.

Meal Request.

~A) Accommodations for the last meal shall be reasonable and not exceed a fifty dollar ($50.00) limit.

(B) The Food Manager shall determine if food services can fulfill the request or make arrangements to obtain the requested menu items.

New Subsections 3349.6(c) through 3349.6(c)(3) are adopted to read:

(c) Approximateiv three calendar days prior to the initial scheduled execution date:

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~1) The Team i~dministrator sha11 ensure that Lethal Injection Team members assigned to specific functions begin daily training on their assignments All Lethal Injection Team members ciesig~natec~ as backups shall be involved i11 trainin~~ for their specified backup functions

(2} The Team Su~aervisor shall schedule and conduct daily required t1-aini~l~ for the Lethal Injection Team. The Intravenous Sub-Team leader or the Infusion Sub-"['eam leader shall conduct any trainin« that requires medical knowledge.

(3) The Intravenous Suh-Team leader Infusion Stab-Team leader and the Team Su ervisor shad begin daily assessments of the Lethal Injection Team members to ensure readiness for their assigned duties If at any time the intravenous Sub-Team leader Infusion Sub-Team leader or Team Supervisor believes Lethal Infection Team member may be unable to complete the assigned duties the Team Administrator shall be notified, and the Lethal Injection Team member shall be excused fi~orn participation in the scheduled execution.

New subsection 3349.6(d) is adopted to read:

~d) Pursuant to Penal Code Section 3602 condemned female inmates shall be transported to San Quentin no sooner than 72 hours prior to the initial scheduled execution date A condemned female inmate sl~alI be transported no`later than 12 hours prior• to the initial scheduled execution date and time The female inmate shall be housed in the Desi~t~ated Secu~~iiv Housing area upon transfer t~ San Quentin

New Subsections 33~9.6(e) through 3349.6(e)(2)(C) are adopted to ~•ead:

Vie) Approximate1~ 24 hours prior to the initial scheduled execution date and time•

~) Tile San C~uentiil Warden shall confirm that all Lethal Injection Team members are fully prepared aizd ready to perform their assigned duties by reviewing the following

~A Training session performance assessments.

(B) Most recent staff performance in job duties i'or state-einpl~}~ed team mez-nbel•s to include annual personnel evalz2ation and a.m~ corrective or• adverse action and an~isciplinary action Taken by a state liceiisin~ board against any team member.

~C) Anv other information or concerns expressed by the Team Administrator `I"eam Supervisor or Lethal. Injection Team Member.

(D) Anv other information that cati2ses the Sat1 Quentin Warden to believe any team member may be unprepared or unable to perform the duties during a scheduled execution

X21 The Team Administrator shall:

(A) Accornpanv tl~e "beam Supervisor and a Lethal Injection Team member to obtain the Lethal Injection Chemical and complete tl~e CDCR Form ?176 (01/18) Lethal Injection Chain of Custody San Quentin State Prison, which is hereby incorporated by reference to acknowledge receipt of the I ethal Injection Chemical

(B) Ensure the LeChal Injection Chemical rs pr~erl~ontralled and secured in tale Lethal Injection Facility safe or refrigerator.

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~C) Ensure the CDCR Form 2176 {Ol/18~, Lethal Injection Chain of Custody.San Quentin State Prison, is completed upon anv' movement of the Lethal Injection Chemical: The original CDCR Form 2176 shall. remain with the Lethal Injection Chemical. A co~,v of the form shall be'distributed to the San Quentin Warden the San Quentin Chief De~ut~Warden, and forwarded to the San Quentin Litigation Coordinator for alacement in the Master Execution File.

New Subsections 3349.6(f) through 3349.6(f~(2) are adopted to read:

~~ A_pproximatel~six hours prior to the initial scheduled execution date and time:

(1) The Team Supervisor sha1L•

(A) Brief the inmate on execution procedures.

~B~Supervise the movement of the inmate to the Lethal Infection Facility Holding Area ce1L

(C) Secure the inmate in the Lethal Injection Facility Holding Area cell...

~D) Ensure assigned custody staff provide direct and constant observation of the inmate in the Lethal Injection Facility. Holding Area and document. all of the inmate's activities, requests, conduct, and behavior in the. inmate's Pre-Execution Logbook with entries made. approximately every 15 minutes.

(E) Ensure the last meal is delivered to the Lethal Infection Facility, inspected for contraband and served to the inmate in the Lethal Injection Facility. Holding Area cell.

~F) Inform the inmate the~ma ret~uest additional food.items, coffee, juice and soft drinks, programs on the radio or television, phone calls and maiIin~ of letters.

(2) Once the condemned inmate is secured in the Lethal Infection Facility holding area cell, visiting with the exception of an Attorneyand a state emplo ey_d_or_pre-approved non-state employed Cha,~lain or Spiritual Advisor, shall cease. No visitation shall occur between the hours of 2200 and 0600.

New Subsections 3349.6(8) through 3349.6(g)(2)(B) are adopted to read:

(g~ Approximately three hours prior to the initial `scheduled execution date and time, the foliowin~ shall be initiated:

(1)' The Team Supervisor sha1L•

~A) Ensure that all visiting shall cease. Attorneys and Spiritual Advisors may have access to the inmate b~phone as requested by the Attorney, Spiritual Advisor, or the inmate.

initiates documentation on the CDCR Form 2181 (01/181. San Quentin State Prison Lethal Infection Team

- -'~'~- --r- -. _--

Sub-Team shall verif rapt of the designated Lethal InLection Chemical time si the CDCR Form 2176(0 1/18), Lethal Infection Chain of Custody San Auer,

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Loy — "Thiopental, upon receipt of the Lethal Injection Chemical by the Infusion Sub-Team members aild continue observation and documentation throughout the execution

aci i v o m~ rea an s a a vise t o inmate o the following• _--

(A) A written last statement maw be_prep~ed by the inmate which will be made a~~ailable after the execution.

(B) A sedative ma be requested and if approved by a physician. the sedative shall be administered under the physician's direction.:

New Subsections 3349,6(8)(3) through 3349.6(g)(4)(F) are adopted to read:

{3) The Lethal Infection Chemical.shall be prepared acc~rdin~ to the instructions nr~vided by the T,ethal

{4)Preparation for adniinistrati~n of the Lethal Injection Chemical shall be as follows•

(A) If Pentobarbital is the designated Lethal Injection Chemical it shall be administered by means of three svrin~es for a total of'7.S gams. A fourth syringe shall be ,prepared with a saline flush ~B) If T}iiopental is the designated Lethal I12ject~on Cheizlical it shall be ad►~~inistered by means of ~~~e syrzn~es for a total ~f 7.5 grams A silth syringe shall be prepared with a saline flush

~C) The infusion Sub-'I'eam~shall prepare the Lethal I~jeetion Chemical for administration as follows•

1. Three identical trays shall be :prepared. :Each tray shall contain a total of 7 5 gams of the Lethal In ection Chemical.

2. Tray t~ shall be color-coded red and shall be the primary tray used for the lethal infection process

3. Tray B shall be colored-coded blue and shall be the backup tr~~

4. Tray C shall be color-coded vello~~- and shall be tine alternate backup tray

1. Three svrin~es, each containiu~ 2.5 grams of Pentobarbital shall be labeled #A-1 #A-~ and #A3 for Tray A,#B-1, #B-2, and #B-3 for Tray Brand #C-1 #C-2 and #C-3 for Tray C

2. Svrin~e #4 shall contain a saline flush and be labeled #A-4 for Tray A #B-4 for Tray B and #G4 __for Tr_.~XC

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1'. Five s~in~es, each containing l.5 grams of Thiopental, shall be labeled #A-1, #A-2,#A-3, #A-4, and #A-5 for. Tray A, #B-1, #B-2 #B-3, #B-4, and #B-5 for Trav B, and #Gl,#C-2, #C-3, #C'-4, and #C-5 for Trav C•

2. Serge #6 shall contain a saline flush and be labeled #A-6 for Trav A; #B-6, for Tray B, and #C-6 for Tra~C.

(F) A medically trained Infusion Sub-Team member shall prepare the sYrin~;es for Trav A, Trav B and Tray C. A separate medically trained Infusion Sub-Team member or Intravenous Sub-Team member shall verify proper preparation of the syringes for Tray A, Trav B and Tray C•

New Subsections 3349.6(h) through 3349.6(h)(1)(B) are adopted to read:

(hLApproximately two hours prior to the initial scheduled execution date and time:

1) The San Quentin Warden shall:

(A)'Ensure the curtain is`open on the viewing windows prior to the witnesses' arrival The curtain shall remain open throughout the execution process until the inmate is pronounced dead.

(B1 Ensure all witnesses are escorted to the designated witness rooms in the Lethal Injection Facility

New Subsection 3349.6(1) is adopted to read:

(i} Within one hour prior to the initial scheduled execution date and time, the Team S~ervisor shall ensure that open dedicated phone lines with the Governor's Office, the Office of the Attorney General, California State Supreme Court and the San Quentin Warden's office complex are established in the Infusion Control Room.

New subsections 3349.6(j) through 3349.6(j)(2)(D) are adopted to read:

~i) Approximately 45 minutes before an initial scheduled execution date and time, the San Quentin Warden shall order the inmate to be_prepared for the execution.

(1~ Upon direction of the San Quentin Warden to prepare the inmate, the Team Supervisor shall:

~A) Order the inmate placed in restraints and removed from the Lethal Injection Facility Holding Area cell.

(B) Ensure a Record Keeping Sub-Team member initiates documentation on the CDCR Form 2179 (Ol/18~an Quentin State Prison Lethal Infection Intravenous Sub-Team Execution Log:

(C~ Observe the Intravenous Sub-Team place the electrocardiogram leads on the inmate.

(2) Resistive inmates.

(A) In the event that an inmate refuses to compiv with a direct order to be placed in restraints or to exit any area, the Team Supervisor shall advise the Team Administrator and the San Quentin Warden.

(B) The Team Supervisor shall speak to the inmate in an attempt to fain the inmate's compliance.

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And use of force with Section 32tR:1:, lnvesti~atin~ the Use of r'orce for institution/Facility Staff and a cop laced in the Master Execution File:

New Subsections 3349.6(k) through 3349.6(k)(5) are adopted to read:

~k) Apbroximately 15 minutes before ail initial scheduled exeetition date and time the San Quentin Warden shall:

(L) Order the inmaie escorted to the Lethal Injection Room

(2) Order the inmate to be secured to the gurney with restraints

(3) Order the inmate's hands to be secured to the arm rests on the urney with medical tape

(4) Ensure the Team Administrator and Team Supervisor take positions in the Infusion Control Room The Team Supervisor shall directly sii~~ervise infusion of the Lethal Infection Chemical and saline during the execution. ---

(51 Ensure the San pue~rtin Litigation Coordinator takes a ~~ositio~l at the Lethal Injection Facility_ telephones atleast 15minutes prior to a scheduled execution to ensure constant commtuiication with the Governor's Office, the Office of the Attorney General California Supreme Court and the San Quentin Warden's office colilplea. The San Quentin Litigation Coordinator shall communicate all calls to the San Quentin Warden, the Team Administrator and tl~e Team Supervisor

Ne~~~ Subsection 33 9.6(1) is adopted to reed:

~1) In the event the execution is staved for any reason the procedures described in this Article shall--- b~ suspended as reciuired by the stay of execution until the stay is lifted Upon the stay being lifted the execution inav be resumed or if necessary rescheduled a minimum of three hours from the time at which the stay was lifted.

NOTE: Authority cited: Sections i?27 3604 ~f04 1 and 5058 Penal Code Reference• Sections 190 3600, 3601, 3642, 3b03, 3604, 3605 3700 3700.5 X701 3702 3703, 3704 and 5054 Penal Code United States Constitution Amendment VIII; California Constitution Art. 1 Sections 17 27• Baze v Rees {2008) 553 U.S.35, ~'owe~v v. Brewer (2012)672 F 3d 650

New Section Title 334y.7 is adopted to read:

3349.7 Administration of the Lethal Tniection Chemical.

New Slabsections 3349.7(x) through 3349.7(x)(8) are adopted to read:

(a) After the inmate is secured in the Lethal Injection Room the Intravenous Sub-Team tneinbers shall•

~ 1) Take their desi n~ ated positions in the Lethal Injection Room.

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~2) Inspect the restraints to ensure that they do not restrict the inmate's circulation' ar interfere with the insertion of the catheters.

L} Attach the intravenous lines to the catheters and insert three catheters into pre-designated veins.

{4) As each catheter is inserted, inform the Intravenous Sub-Team member in the Infusion Control Room to initiate the intravenous saline drip into the intravenous lines attached to the catheters.

(5) Designate primary backup and alternate backup intravenous lines.

~6) Inform the San Quentin Warden when the intravenous lines have been successfully established.

~7) One Intravenous Sub-Team member shall exit the Lethal Injection Room and report to the Infusion Control Room to continuously monitor the saline dribs.

(8) One Intravenous Sub-Team member shall remain in the Lethal Infection Room to continuously monitor the intravenous lines. This Intravenous Sub-Team member shall stand next to the inmate and assess the consciousness of the inmate throughout the execution in accordance with subsection (c)(4)(A).

New Subsections 3349.7(b) through 3349.7(b)(5} are adopted to read:

(b) After the inmate's intravenous lines are successfully established, the San Quentin Warden shall:

(1 ' Take a position in the Lethal Injection Room in close proximity to the inmate.

(2) Confirm there is no matter pending before any court that precludes the execution from proceeding via the California Supreme Court, the Governor's Office, and the Office of the Attorney General:'

~3) Ensure a statement detailing the court order mandatingthe execution`is read aloud over the public address s sy, tem.

(4) Provide an op op rtunity for the inmate to make'a brief final statement on the public address s sy,_tem•

(5) Direct the Infusion Sub-Team to administer the Lethal Injection Chemical.

New Subsections- 3349.7(c) through 3349.7(c)(12) are adopted to read:

(c) Infusion.

(1) The infusion of the Lethal Infection Chemical shall begin with Tray A using the intravenous catheter designated as primary.

~2) The saline drip for the intravenous catheter that was designated as the primary infusion site shall be stopped prior to the infusion of the first singe. The saline drip in the backup and alternate backup intravenous lines shall be continually maintained: Should the backup or alternate backup intravenous line be designated for infusion, the saline drip for that catheter shall be stopped prior to the infusion of the first s r_v in~e.

~3) A Record Keeping Sub-Team member in the Infusion Control Room shall initiate aten- minute countdown at the start of the infusion of syringe #1.

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(4) If Pentobarbital has been designated the Lethal injection Chemical shah be administered binning with Tray A and using the rimary intravenous catheter as follows•

(A) #1 syringe containing the specified amount of the designated Lethal Injection Chemical shall be administered, followed by a consciousness assessment of the inmate• the intravenous dub-Team Member shall brush the back of his/her hand ot~e~~ the itlmate's eyelashes and speak to and, gently shake the inmate. Observations shall be documented. If the inmate is unresponsive it will demonstrate that the inmate is imrnnc~innc Tha rirnnaeo ol,~ll ..~,,,~;,,,,o .~~ fll,...>.,.

(B) #2 svrin~e containing the specified amount of the designated I ethal Injection Chemical shall be administered.

(C) #3 syringe containiil~, the specified amount of the designated Lethal Injection Chemical shall be adniitlistered.

D} #4 syringe con~ainin~ the saline flush.

(5) If Thiotaental has been desi nab ted the Lethal Injection Chemical shall be administered beginnin with Tray A and using the:primary intravenous catheter as follow`

~A) #1 svrin~e containing the specified amount of the designated Lethal Infection Chemical shall be administered. followed by a consciousness assessment of the inmate• the Intravenous Sub-Team Member shall brush the back of his/heT• ]land over the inmate's eyelashes and speak to and gently shake tl~e inmate. Obsei~vatio~Is shall be documented If the inmate is unre~pon~ive it will demonstrate that the inmate is unconscious. The ~arocess shall continue as follows•

(B) #2 syringe containing the s~~ecified amount of the designated Lethal Injection Chemical shall be admii-~istered.

(C) #3 svrin~e containin the specified amount of the designated Lethal Injection Chei~lic~l shall be administered.

{D) #4 svrin~e eontainin~ the s~eeified amount of the designated I ethal Itlection Chemical shall be adnlinist~red.

(E) #5 syrin~~e containing tl~e specified amount aI the designated Lethal Tniecti~n Chemical shall be administered.

(F~ #6 s~~rinae containing the saline flush.

(6) If, following the ~~dministration of syringe #1 the assessment indicates the inmate is not unconscious the Intravenous Sub-Team il~en~bei• shall check the catheter foi~atenev After checking for~ate~ic~ syringe #2 shall be adT~linistered i=ollowed by a second consciousness assessment of the itunate iii the same manner as described i~7 subsection (c)(4)(A). If the assessment indicates the innate is not' unconscious, the San Quentin Warden shall direct that the iiijectioil through the pl•imal•y intravenous catheter be discontinued and the entire sequence reinitiated with the Lethal Injection Cheiilical on the next sequential Tray usin tg he associated intravenous catheter.

~7) Tf, at any time during the infusion of the Lethal Infection Chemical the intravenous catheter fails the San Quentin Warden shall:

Excerpts of Record - 83 Text of Regulations Lethal Injection January 26, 2018 23 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 29 76 of of 62 297

~A) Direct the lethal in,~ection_process using the intravenous catheter and the chemical on the Tray currently in use be discontinued.

~B) Direct the Lethal Infection Chemical administration'process set forth in subsections (2)-(6) begin main, but using the Lethal Injection Chemical on the next sequential Trav and the associated catheter.

~$) The inmate's heart activity shall be monitored by an electrocardiogram.

(9) The attendin~phvsician shall monitor the electrocardiogiram Death shall be determined and declared by a'phvsician Once death is declared infusion of any remainin~iLethai Infection Chemical shall cease.

(10} In the event all svrin~es from Tray A have been administered the ten minute countdown has elapsed and death has not been declared or an intravenous site cannot be maintained at the tarimary site, the Record Keeping~Sub-Team member shall advise the Team Supervisor who shall then advise the Team Administrator and the San Quentin Warden The San Quentin Warden shall direct the Lethal Infection Chemical administration~rocess set forth in subsections (2Z_(9 be repeated but using the backup intravenous catheter and the svrin~es from Tray B.

X11) In the event all syringes from Tray B have been administered the ten minute countdown has elapsed and death has not been declared or an intravenous site cannot be maintained at the backup site, the Record Keeping Sub-Team member shall advise the Team Supervisor who shall then advise the Team Administrator and the San Quentin Warden The San Quentin Warden shall direct the Lethal:. Infection Chemical administration process set forth in subsections (2~9) be repeated but using the alternate backupsite and Trav C.

~12~In the event that all svrin~,es of Lethal Injectioiz Chemical from Tray C have been administered, ten minutes has elapsed and death has not been declared or an intravenous site cannot be maintained at the alternate backup site the San Quentin Warden shall stop the execution and summon medical assistance for the inmate as set forth in subsection ~~

New Subsection 3349.7(d) is adopted to read:

~d) Should the execution be stayed or stormed for anx reason after infusion of the Lethal Infection Chemical has commenced the Team Administrator shall immediately request San Quentin medical personnel or contracted medical personnel if there is no state civil service emp]ovee who is available-and willing_ to~erfarm the prescribed duties respond to the Lethal Injection Facility to t~rc~vide any medical care that is deemed necessary The curtains on the viewing; windows for witnesses shall be closed. The San Quentin Warden shall immediatel~~o to the Infusion Control Room and ensure an announcement is made via the public address system notifvin¢ the witnesses the execution has been staved or stopped. Immediately after the announcement the public address system shall be turned of£ The San Quentin Warden shall direct staff to escort the witnesses from the Lethal Injection Facility to the media center or off grounds Stays issued prior to infusion shall be subject to the provisions of subsection 3349.6(1).

NOTE• Authority ~~ted• Sections 3604, 3604 1 and 5058 Penal Code. Reference; Sections 190, 360Q, 3603 3604 and 5054 Penal Code• United States Constitution Amendment VIII; California Constitution, Art 1, Sections 17, 27• Baze v Rees(2008) 553 U.S.35 Towery v. Brewer (2012)672 F.3d 650.

New Section Title 3349.8 is adopted to read:

3349.8 Post Execution Procedure.

Text of Regulations Lethal Injection ExcerptsJanuary of 26, Record2018 - 84 24 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 30 77 of of 62 297

New Subsections 3349.8(a).through 3349.8(a)(3) are adopted to read:

(a) Iminediately following the declaration of death of the inmate the San Quentin Warden shall•

cxct;utluti 1~ cUm tp ele'

(2) insure the curtains on the viewing windows for witnesses are closed

(3) Direct staff to escort the witnesses from the Lethal Injection Facility to the media center or off grounds.

New Subsection 3349.8{b) is adopted to rea+~:

(b) The Intravenous Sub-Team shall crimp closed and disconnect all intravenous lines The catheter or needle sha11 not be removed from the inmate to allow for review by the Marin County Coroner

New subsection 33~y.8(c) is .adopted to read:

(c) The Team Supervisor shall ensure the inmate's body is placed with care and di nity into a post mortem bay pending,_removal as pre-arran~d _with the contract mortuary

....New Subsections 3349.8(4) through 3349.8(4)(2) are adopted to read: - -

~) Ap~roximately one lour after the executioi~ the San Quentin Wardell shall ensure•

(1) A statement to the media is issued advising the sentence has been carried out and announcing the time of death.

(2) The inmate's written statement is made available if ap, livable

New Subsection 3349.8(e) is adopted to read.;

fie) It is the responsibility of the Lethal Tn'ection Team and assigned custody staff to clean each area of the Lethal Irl~ection Facility after the inmate's body has been ren,~ve~cl.

New .Subsection 3349.8(fj is adoptecd t~ read:

(fl Any unused Lethal Infection Chemical and the reason whit was unused shall be docum--.. ented on the CDCR Form 2176 (O1/18~Lethal Inieetion Chain of_Custodv -San Quentin State Prison. The Infusion Sub-Team shall transfer the unused Lethal Injection Chemical to the Te~n1 4uperviso~~ who shall place it in fhe Lethal Injection Facility safe to await disposal The I ethal Injection Chemical transfer shall be documented on the CDCR Form 21 6 (01/18) Lethal Injection Chain of Custody.- San Quciltin State Prison, and .the final signature block signed by the Team Supervisor The signed form shall remain with the L~that Injection Chemical

New Subsection 3349.8(8) is adopted to read:

(~) '1~'he Iuh~avenous Sub-Team shall complete apost-execution inve~itory of all supplies and equipment that were used during the execution. The Intravenous Sub-Team shall give the inventory to the Tea~11 ~JUl~el'V1S01'. WI1O S~18~~ 31'1'~Tl~e f(11' 1'~t~~~GP.mP.nt anr~ ren~enichmenl n{'ennnliPc

New Subsections 3349.8{h) through 3349.8(h)(6) are adopted to react:

(h) Lethal Injection Reporting requirements:

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~1) Immediately following the execution the Team Supervisor shall complete a CDCR Form 2182 ~O1/18 San Quentin State Prison Execution Report —Team Supervisor, which is hereb i~ ncorporated by reference.

~2) Immediately following the execution, each Lethal Injection Team member shall complete a CDCR Form 2183 (01/18 San Quentin State Prison Execution Report —Team member, which is hereby incorporated by reference, documenting their actions and observations during the execution.: The Lethal Infection Team members shall use identifiers assigned to their specific position (dutiesZrather than their names and/or classifications, when they submit their reports.

~3) Any use of force shall be documented and reviewed in accordance with Section 3268.1, Reporting and Investi~ati~the Use of Force for Institution/Facilit Sy taff.

~4) The Team Administrator shall review the completed Execution Report. The Execution Report shall be routed through the San Quentin Chief Deputes Warden for the San Quentin Warden's review and si nature.

(5) A copy of the completed Execution Report shall be delivered to the Director -Division of Adult Institutions and the CDCR Secretary for review and follow u~ as needed.

~6) The original Execution Report shall be retained at San Quentin as part of the Master Execution File.

New Subsection 3349.8(1) is adopted to read:

(i) Assigned custody staff shall conduct a security inspection of the Lethal Injection Facility to ensure all doors are secured and na items were left behind.

New Subsection 3349.8(j) is adopted to read:

(j} The Team Supervisor shall secure the Lethal Injection Facility, return the keys and reporf directly t~ the Team Administrator and the San Quentin Warden that the Lethal Infection Facility has been secured.

New Subsections 3349.8(k) through 3349.8(k)(3) are adopted to read:

(k) Debriefing:

~2) The Team Administrator alongwith the Team Supervisor shall offer the Lethal Injection Team members post trauma counseling.

arrange for a confidential individual debrefing_by appropriate'staff with the Team Administrator, the Team Supervisor, and each Lethal Injection Team member: Each individual may be accompanied by a person of his or her choosing to the individual' debriefing. The San'Quentin Warden shall offer the Tearn Administrator and Team Supervisor Bost trauma counseling

New Subsection 3349.8(1) is adopted to read:

(1) The San Quentin Litigation Coordinator shall assemble all appro riate repOrtS, place them into the Master Execution File and maintain the Master Execution File.

Text of Regulations Lethal Injection ExcerptsJanuary of 26, Record 2018 - 86 26 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 32 79 of of 62 297

1V'ew Subsection 3349.8(m)is adopted to read:

~;oae section Abu i.

NOTE: Authority cited: Sections 3604 3604.1 36Q7 5058 and 5061, Penal Code Reference• Sections 190, 3600, 3603, 3604, 3605, 3700, 3700.5,3701 3702 3703 3704 and5054 Penal Code• United States Constitution, Amendment VIII- California Constitution Art l Sections 17 27 • Baze v Rees 0008) 553 U.S35 Towe~y v. Brewer(2012) 672 F,3d 650.

New Section Title 33499 is adopted to read:

3349.9: Lethai Injection Record Keeping and Documentation.

NeFv Subsection 33-~9.9(a} is adopted to read:

(a) Upon receipt of the Execution Warrant, the Liti~>ation Coordinator at the institution where the inmate is housed shall be responsible for the security of all documentsgenerated to be included in the Master Execution Filz p or to transfer of the inmate to the Lethal Injection Facility Upon transfer the San ' Quentin Litigation Coordinator shall assume res~onsil~ility.

Ne~~~- Subsection 33~y.9(b) is adopted t~ re~~:;

b) The Warden of the institution where the:inmate is housed is responsible to ensure that all documents generated by staff associated.with the inmate to be executed are accurate completed in a timely manner and foiti~~arcled to fhe Litigation ~oardinator who sh all retain a copy and send the original document to the San Quentin Warden.

Ne~~~ subsection 33-l9.R(c) ys adopted to read:

(c) The Team Supervisor shall ensure that all documents generated by the Lethal Injecta~n Team are accurate, completed in a timely m~nnel-, at~d for~vardLd io the Team Administeator for review Upon completion of review, the Team Aclnlinistrator shall 1'or~vard the documents to the San Quentin Litigation Coordinator for inclusion in the Iv~aster ExecuCion Fiie.

New Subsection. 3349.9(d) is adopted to read:

(d) The San Quentin Litigation Coordinator shall maintain the Master Execution File at San Quentin in a secure location. The Master Execution File shall serve as a permanent record of all documents related to. the execution.

Ne~~ Subsections 33~99(e}fiiroubh 33499(e)(26) are adopted to read:

(e) The Master ErecuTian File shall include the folloti~in~ documents

(1)People's Application for Appointment of Execution Date.

{2} Execution Warrant

Text of Regulations Lethal Injection ExcerptsJanuary of 26,Record 2018 - 87 27 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 33 80 of of 62 297

~3) CDCR Form 1801 (Rev 01/18) Notification of Execution Date and Choice of Execution Method.

~4) CDCR Form 1801-B (Rev O1/18~ Service of Execution Warrant -Warden's Initial Interview.

~} Notice of Execution Warrant to Director, Division of Adult Institutions.

~6) Notice of Execution Warrant to Governor's Leal Affairs Secretary.

~7) Memorandum identifying; Alienist Panel.

~)CDCR Form 1801-A (Rev. 01/18), Choice of Execution Method.

~9) CDCR Form 1801-C (O1/18~ Request For Approval of Witnesses.

X10) CDCR Form 1801-D (OU18), Last Meal Request.

X11) CDCR Form 1801-F (01/18) Release of Remains and Burial Arrangements. f 12) CDCR Form 2173 (01/18) 20 Day Pre-Execution Report, pursuant to Penal Code 3700.5.

(131 CDCR Form 2174 (41/181, Notification__By Warden To The District Attorney Concerning Sanity of ~.vtiuciilu~u iiuila«.

(14) CDCR Form 2176 (01/18) Lethal Injection Chain of Custody San Quentin State Prison.

X16) CDCR Form 2178 (01118), Return on Execution Warranf.

(~71 CDCR Form. 2179 (01/18), San... Quentin State Prison Lethat Infection Intravenous Sub-Team

Prison Lethal Ini

(19) CDCR Form 2182(01/18) San Quentin State Prison Execution Report-Team Supervisor.

X20) CDCR Form 2183 (01/18) San Quentin State Prison Execution Report —Team member.

(21) Condemned inmate's Pre-Execution Lo b~ oak.

of Lethal Infection Team training documentation for the__t_hree calendar days ire

23) Copies of Inmate Visiting Records.

X24) If force was utilized at any point during the lethal inaection process, CDCR Form 2182 (01/18), San Quentin State Prison Execution Report-Team Supervisor, shall be forwarded to the Executive Use of Force Review Committee to include in its review. When the Committee has completed their review of the Use of Force the Executive Use of Force Review Committee findings and all associated documentation shall be added to the Master Execution File.

X25) The Execution Report

(26ZAny and all other documents relative to the execution.

Text of Regulations Lethal Injection ExcerptsJanuary of 26, Record 2018 - 88 28 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 34 81 of of 62 297

New Subsection 3349.9(fj is adopted to read:

(f} After an execution has concluded, the Team Administrator shall review the Master Execution File to ensure that all documents are accounted for and appropriately cate orized.

New Subsection 33499(g)is .adopted to read:

(~) In the event the execution is stayed, the Master Execution File shall be closed and remain at San Quentin in a secure location.

NOTE: Authority cited: Sections 3604, 3604.1 5058 and 5061 Penal Code. Reference• Sections 190 3600,3601,3602,3603 3604 3605 3700 3700.5 301 3702 3703 3704 3705 3706 and 5054 Penal Code; United States Constitution, Amendment VIII• California Constitution Art 1 Sections 17 27 • Bc~ze v. Rees 2008) 553 U.S.35 and Towery v. Brewer(2012) 672 F.3d 650.

Text of Regulations Lethal Injection ExcerptsJanuary of 26, Record 2018 - 89 29 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 35 82 of of 62 297 NAME and NUMBER C:I7C 128-F3 (Rev. 4!74)

DATE GENERALCHRONO

T~.__.._.._------~~.~..~~,_,_~~,...,..._~._..~.._.~~------

NAME and NlJME3ER ~ ct~c i~~-t3 ~tte~. a/7a~

DATE {'~F'NE;RAL CI~iRC)NO

NAME and NUMBE~;R C[)C 128-I3 {Rev. ~I74j

DA'T'E UENF,RAL CHRONO

Excerpts of Record - 90 SPATE QF CALIf~ORN1A Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18DENAR"1'MEN'P 15-2, Page Page OF CORR~C'PIONS, 36 83 of of 62 297 AND REHABILf7'ATION NOTIFICATION Off' EXECUTION DATE aND CHOICE OF EXECUTION METHOD CDCK 1801 (KEV. 01/18) DIS'1~R1SUT►CJN: WARDEN (~RIGiNAL) CENTRAL FILE - CC)PY INMATE - COAY

On , I, was served Execution MONTH, DATE, NJp YEAR PftIN]' OR'I'YPE FULL NAME AND CDCR t1

Warrant number issued by NAME OF COUNTY

County Superior Caurt on . I was notified that I have an execution date of M(7N'PH, DATE, ANll YEAH

and that I may choose either lethal injection or lethal gas as the MUNTfi, UATti, ANll YEAR

method of execution. I understand that I have ten days from the date of the service of the execution Warrant, or

to make this choice in writing on CDCR Form 1801-A. MONTH, UA"Cfi, ANU YEAR

I also understand that if I do not make a choice, lethal injection will be the. method of execution.

'CURE OF W1TNFiSS 1 DATE StGNEU

Excerpts of Record - 91 ST6~TF. OF CAI.IF'C)RNIA Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18DEPARTMENT 15-2, Page Page OP CORRECTIONS 37 84 of of 62 297 AND R~ HABII,ITA7'ION CHOICE OF EXECUTION METHOD CI?CR 1801-A (REV. 01/18) Uis•rK~~u~rioN: WARDEN (OR1GI~lAL) t'C;N'I`RAL f'iLE -COPY INMATE -COPY

,; r 4,. ~ ,» r

On ,I, ,was served Execution MONTH, DATE, AND YEAR PRIN"!' OR "fYP6 FULL NAME hND CpGR H

Warrant number issued by NAME OF' COUNTY

County Superior Court nn MONTH, llA'1'E, AND YEAR

I was notified that I have an execution date of and that I may - MONTH, DATE, ANU YEAR choose. either lethal injection or lethal gas as the method of execution, I understand that I had ten days from the date of the service of the Execution Warrant, or until to make this MON9'1~3, UA7"E, ANG YF;AR - choice in writing an a CDCR ~'r~rm 1801-A, and that if I did not make a choice, lethal injection would be the method of execution.

This is to nati~y the Warden that my choice is LE'TH.AI. tN1ECT(~N UR L$T}4AI. GAS

INMATE'S SIGNATURE CI~('R NUMBER DATE SIGNED

SIGNATURE OF WITNESS DATG SIGNED `

COMMENTS OF WITNESS

The chemical utilized for the lethal injection shall be in the . .NAME.(N~ CIiEti91CAL amount of .The inmate was informed ~f the choice and amount of chemical. AMOUNT OF C'(I~A9ICAL

)F.N'S StGNATURH _) DATF. S[GNGU .

__

Excerpts of Record - 92 STATE OF CALIFORNIA Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18DEPARTMENT 15-2, Page Page OF CORRF,CTIONS 38 85 of of 62 297 AND REI iABILITATIQN SERVICE OF EXECUTION WARRANT — WARUEI~'S INITIAL INTERVIEW CDCR 1$01-B REV. 01118)

1, LLy _, have received a copy of the Execution Warrant number _~_ _ _ _issued by PRINT OK'PYAE FULL NAME AND CDCR N

County Superior Cnurt on _. __ . I had the appartunity to discuss the execution NAME OF COUN"fY ~MONTH, DAY, YEAR -

Warrant with the Warden an . I understand that[ am entitled to elect either lethal injection or lethal gas as the MONTYi, DAY, YEAR

method of execution. 1 further understand that I must make my choice in writing on a CDCR Farm l 801-A within ten days of service

of the Execution Warrant. If I do nat choose either lethal injection or lethal gas within ten days after the service of this Execution

Warrant, I understand the method of execution will be Iethal injection. I further understand that if I receive a stay of execution, I will

again have the opportunity to choose the method of execution if 7 am served with another Execution Warrant. I understand I have

an execution date of MONTH I~AY, YEAR

X .~ dNMA'rE'S SIGNATURf3

( )Inmate has received a copy of the ~;xecution Warrant but refuses to sign for it.

X WARDEN'S S1GNA'fURE ~~

X ~_~WI1'NESS'SIGNATUItf J~LL.Y,.~.~~.~~l.

Staff shall initial the. following, if applicable:

{--- )Inmate-understands-helshe may-choose either lethal injection or lethal gas as the method of execution. ( )Inmate understands he/she musC make his/her choice I writing on the CDCR Form 18Q 1-A within ten days after service of the Execution Warrant. This ten day period expires on _ ~_y__~ _ MOMI`id. I~AY. YEAR ~~ ( )Inmate understands he/she will be contacted on the above date if the Warden has not received the form 1801-A, Choice of Execution Method. ( )Inmate understands that if he/she makes no choice, execution will be imposed by lethal injection. ~ )Inmate understands he/she will be interviewed by psychiatric staff and a report of their findings will be provided to the Governor, the Secretary, the Director-Division of Adult Institutions, the San Quentin Warden or the Warden of CCWF, and the inmate's counsel upon request of counsel. Inmate has been provided with a copy of Title I S regulations, and has been given an explanation oFthe course of events following service ofthe Execution Warrant. ( )~ff~etive communication was established: see comment section.

tN'PERVIEWER'S OBSF.RVA7'~QN AND COMMENT'S

WARDEN PRINTED NAME WARDS".N SIGNA7'l1RE DATE StGNEn

WIl'NESS' PRINTED NAMEI Q.itigalion Goordinaror) WITNESS' SIGNA"CURE? DATE SIGNED

Excerpts of Record - 93 OF CORRECTIpNS AND REHAB~L(TA710N STATE OF CALIFORNIA Case: Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18DEPARTMENT 15-2, Page Page 39 86 of of 62 297 REQUEST-FOR APPROVAL OF WITNESSES CDCR 1801-C (01/18)

REQUEST FQR AI~PROVAL OF WITNESSES

Per :Penal Code Section 36Q5, I am requesting that the following persons) be permitted to witness the execution. I understand that all requested witnesses must meet all visiting; criteria pursuant to California Code of Regulations, Title 15, DXvision 3, Subchapter 2, Article 7. I understand that no witnesses under the age of 18 will be pernnitted.

PERSONS,RELATIVES Oit FRIENDS NAME &AGE ADDRESS TELEPHONE # RELATIONSHIP

__ __ MINISTERS C?F THE GOSPEL _____ TELEPHQN~ # NAME ,ADDRESS __ _~— --

Inmate Name. Inmate Signature CDCR #

D Witnesses contacted to obtain information needed to perform CI,E~I'S check

O CLE'I'S check completed by Administrative Assistant (Attach reports)

APPROVED/DISAPPROVED

Warden Date California St~t~ Prison at San Quentin

Excerpts of Record - 94 DEPARTMENT OF CORRECTIONS AND REHABILII`A710N STATE OF CALIFORNIA Case: Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 40 87 of of 62 297 LAST MEAD REQUEST CDCR 1801-D (01/18)

LAST MEAL REQUEST "'

I am requesting that the following food be provided for my last meal. I understand that all requests must be approved by the Foad Manager and the Warden. Unreasonable requests shall not be accommodated. Last meal cost shall not exceed $50.00.

Meal Items Re nested

Inmate Name. Inmate Signature CDCR #

APPROVED/DISAPPROVED

Pond Manager Date

APPROVED/DISAPPROV~,D

Warden Date California State Prison at San Quentin

Excerpts of Record - 95 AND REHABILITATION STATE OP GALIFORNIA Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18DEPARTMENT 15-2, OFPage Page CORRECTIONS 41 88 of of 62 297 RELEASE OF REMAINS AND BURIAL ARRANGEMENTS CDCR 1801-F (01/l8}

I am requesting that my remains be released to the person or organization identified herein. I understand that the state of California does not accept financial responsibility for the disposition of my remains. I have designated the person who will accept that responsibility. If I do not designate these arrangennents, or my designee does not accept this responsibility, the State will process my remains in accordance with Penal Code Section 5061 and California Code of Regulations, Title 15, Section 3357.

Funeral Home Address

Telephone Contact Person

Person financially responsible for the disposition o~ remains:

Name Address

Telephone Relationship

Inmate Name Inmate Signature CDCR #

Date ...Warden California.State .Prison.at San Quentin

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STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION Monthly Security and Operational Inspection Sheet CDCR:21,37 (01/1.8} Page 1 of 1 Building Maintenance. Goad Needs Comments/Work Order Working Repair/ prder/Clean Cleaning A) Doors/Locks/Keys B} Lights (Lamps) C) Electrical (switches and plugs) D) Refrigerator (Temp.) E) Safe- (Secure/No fJbstruct) Ej Plumbing- (Sinks/Toilets) G) Fire Ext.- (Ext./sprinkler) Nj Floors I} Walls =--- ~} Storage Raoms _._. K} Restroom

Equipment Operational Needs Comments Repair A} Restraints B} Locks Cj Cut Down Tool D) Baton E) t3C(MK -4) Fj Camera _.__ _. __.______G) PPE Kits

Supplies ~ Quantities Items Ordered A) I.V. Supplies B) .Infusion Supplies

Excerpts of Record - 97 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 43 90 of of 62 297

STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 2q-DAY PRE-EXECUTION REPORT CDCR 2173 {0.1/18)

Memorandum

Date

70 WARDEN

From San Quentin State Prison, San Quentin, CA 94964

subject 20-DAY PRE-EXECUTION REPORT (NAME AND NUMBER OF INMATE)

This report is prepared pursuant to Title 15, Article 7.5 and Section 3700.5 of the California Penal Cade. Inmate (name), CDCR# is scheduled for execution of .his/her death sentence on (date).

Inmate (name) was advised. that I was a psychiatrist .and the purpose of the interview was to evaluate his/her competency to undergo execution.. I advised that I was not his/her treating physician and that the :results of.the interview were nat confidential but would be shared .with. others. The inmate said helshe understoodJdid not understand (circle one) the information above.

Inmate (name)[describe; grooming, demeanor, or2entat~on, speech, mood and any other features relevant to the documentation of the inmate's competency on a separate repari and attach to this form.]

Inmate (name), CDCR# understood his/her circumstances and:

Understood the. nature of the death penalty and the reasons.it was.imposed.

Did not understand the nature of the death penalty and the reasons it was imposed.

It is my opinion that .Inmate (name) is campetent/not competent (circle one) to undergo execution.

(Print Name of Alienist) Staff Psychiatrist

{Signature of Alienist) Staff Psychiatrist Date

Excerpts of Record - 98 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 44 91 of of 62 297 STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABIl17AT10N •NOTIFICATION BY WARDEN TO DISTRICT ATTORNEY CONCERNING SANITY OF CONDEMNED INMATE {PC § 3700} CDCR 2174 (01/18)

NOTIFICATION BY WARDEN TO DISTRICT ATTORNEY CQNCERNING SANITY OF CONDEMNED INMATE(PC § 3700,.3700.5, 3701)

'I"o: ,District attorney, County of Marin

~rcrm; ,Warden, San Quentin State Prison.

Re: Condemned Inmate , CUCR #

Pursuant to Penal Code § 3701, There is goad reason to believe that the .above named. inmate/defendant, who is under sentence of death, has become insane..

This is based on the following

A. Information concerning the.inmate:

1. County from which the inmate is under sentence of death:

2. Charles convicted. af:

3. Date set far execution:

B. Enclosed with this memorandum are the following:

I. Copies of the reports of the three alienists who examined the Inmate/defendant per PC § 3700.5;

2. A copy of the inmate's psychiatric file;

3. Other

Warden California State Prison at San Quentin

Date:

Excerpts of Record - 99 STATE OF CALIFORNIA Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry:DEPARTMENT 03/08/18 15-2, OF CQRREG710NS Page Page 45 92 of ANDof 62 297REHABILITATION LETHAL INJEC710N CHAIN OF CUSTODY SAN QUENTIN STATE PRISON CDCR 2176 {01/18)

LETHAL INJECTION CHAYN OF CUSTODY SAN QUENTIN STATE PRISON

This farm is the chain of custody that accompanies the Lethal injection Chemical scheduled far the execution of at on Inmate name CDCIt # ~ Time Date

STEP 1.Obtain the Lethal in'ection Chemical from the Lethal In'ection Chemical Su Tier

Chemical name Lot`# Expiration Date

Type and quantity of packages Volume per package Total amount

Name of Lethal injection Ghemicat Supplier

Received by Date Time Lekha] tniection "Team Member ID Received by Date Time Team Supervisar Verified by Date Time 7~eam Admiiaistratc~r

C'i'T~ D 7 Tr.~nafns. of ti n T atla ~l ininntinn f'1~arnGr+o1 frnm fha i :nti~~al inia~tinn Yi'an~litr~ eafa to the Infusion dab=Team

Chemical name Lot # Expiration Date

Type and quantity of packages Volume per package Total amount

Received. by Date Tirne `~ Infusion Sub=l'eam Member ltd Received by _ Date ~ Time lnfusian Sub-"Team Member (D Verified by Date Time Team Supervisor

Page 1 of 2

Excerpts of Record - 100 STATE OF CALIFORNIA Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry:DEPARTMENT 03/08/18 15-2, OF CORRECTIONSPage Page 46 93 of ANDof 62 297 REHABILITATION LETHAL INJECTION CHAIN OF CUSTODY sAN QUENTIN STATE PRISON CL7CR 2176(011f 8) STEP 3. Transfer of unused Lethal Injection Chemical from the Infusion Sub-Team to the Lethal In'ection Facili safe if necessa

Chemical name Lot # Expiration Date

Type and quantity of packages Volume per package l otat amount

Reason Lethal Injection Chemical Not Used

Received by Date Time Team Supervisor ...Verified by Date Time Infusion Sub-Team Member @ Verified by Date Time lnf'usi<>n Sub=Ceam Member iD

STEP 4. Final signature after completion of the lethal injection pratocal, (Original signed form to remain with Lethal Injection Chennical)

7f'eam Administrator: Print Name Uate '1"ime

Signature.

Team Supervisor: I Print Nan3e [7att Time

Signature

Page 2 of 2

Excerpts of Record - 101 SAN QUENTIN STATE Case:Case PRISC)N 18-16547,3:06-cv-00219-RS LETHAL INJECTION 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 47 94 of of 62 297 INFUSIAN SUB-TEAM EXEGU710N LOG - PENTOBAitBITAL Page 1 of 2 `cacr~ zt77-n to~tls> San Quentin State Prison Lethal Injection Infusion Sub-Team Execution Log -Pentobarbital

Inmate Name CDCR # Date of Execution

Record Keeping Sub-Team Member Identification #:

Lethal Injection .Chemical

Total Dose Per Syringe Total Dose Per Tray

Step Task Time Comments 1. Infusion Sub-Yearn Members arrive at the Lethal In'ection Facili 2. Transfer of chemicals to Infusion Sub-Team. 3. Prepare Lethal Injection Chemical according to Lethal Injection Chemical Su Mier instructions. 'T12~1I' A - Prirr~a~-y - Fced 4. Draw 2.5 grams of the designated Lethal Injection Chemical into a s rin e. 5. Label this syringe in red; A-1. 6. Repeat step 4 and label this syringe in red; A-2. 7. Repeat step 4 and label this syringe in red;. A-3. 8, Draw saline flush into syringe and label inwhite; A-4. ~~~2.~Y ~ - ~3ac~u~s___ - ~l~e 9 Draw 2.5 grams of the designated Lethal Injection Chemical into a s rin e. 10. Label this syringe in blue; B-1, 11. Repeat step 9 and label this syringe in blue; B-2 12. Repeat step 9 and label this syringe in blue; B-3 13. Ura~,~r saline flash into s}cringe and label in white; B-4. ~~ 7'1~A1' ~' -Alternate ~a~:~:up - ~'el~o~v 14. Draw 2.5 grams of the designated Lethal Injection Chemical into a s iii e. ` 15. Label this syringe in yellow; C-1. 16. Repeat step 14 and label this syringe in yellow; C-2. 17. Repeat step 14 and label this syringe in yellow; C-3. 18. Draw saline flush into syringe and label in white; C-4. ~I~~1ISION. knee death is declared, infusion ~f acv ~er~ain~ng eher~aic:al shall cease. 19. In#usion Sub-Team member or ,Intravenous Sub-Yearn member verifies proper preparation of Trays A, B and C. 20. Saline drip for primary catheter stopped. 21. Inject syringe #A-1.

Excerpts of Record - 102 SAN QUENTIN STATE Case:Case PRISON 18-16547,3:06-cv-00219-RS LETHAL INJECTION 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 48 95 of of 62 297 INFUSION SUB-TEAM EXECUTION LOG -PENTOBARBITAL Page 2 of 2 ` CDCR 2177-A (01/18)

Step Task Time Comments 22. Consciousness check. If the inmate is not unconscious, check the catheter for atency. Continue to ste 23. 23. Inject syringe #A-2. 24. Consciousness cheek (if necessary). If the inmate is unconscious, continue to step 25. If the. inmate remains conscious, discontinue Tray A and initiate 'fray B in the backu intravenous catheter.(ste 2'7). 25. Inject syringe #A-3. 26. Inject syringe.#A-4 Saline Flush. Backup. If all four syringes in Tray A have been administered .and death has not been declared after 10 minutes, or if at any time during infusion the. primary catheter has failed, continue to "fray B. 27. Saline drip for backup catheter stopped. 28. Inject syringe # B-1. 29. Consciousness check. If the inmate is not unconscious, check the catheter tar atency. Continue to ste 30. 30. Inject syringe # 8-2. 31. Consciousness check (if necessary). If the inmate is unconscious, continue. to step 32. If the inmate remains conscious, discontinue Tray B and initiate Tray C in the alternate backu intravenous catheter ste 34). 32. Inject syringe # B-3. 33. Inject syringe # B-4 Saline Flush. Alternate ~~c1cu~. If all four syringes in 'fray B have been administered and death has not been declared after 14 minutes, or if at any time during infusion the backup catheter has failed, continue to -Tray G 34. Saline axip for alternate backup catheter stopped. 35. Inject syringe.# C-1. 36. Goi~sciUusness check. If the inmate is not unconscious, check ~Iie catheter for atenc .Continue to ste 37. 37. Inject syringe # C-2. 38. Consciousness check (if necessary). If the inmate is unconscious, continue to step 39. If the inmate.remains conscious, discontinue Tray C. The execution shall be sto ed and medical assistance summoned. 39. Inject syringe # C-3. 40, Inject syringe # C-4 Saline Flush. Physician declares death.

Lethal Injection Team Administrator Date

Excerpts of Record - 103 SAN QUENTIN STATE Case:Case PRISON 18-16547,3:06-cv-00219-RS LETHAL.INJECTION 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 49 96 of of 62 297 INFUSION SUB-TEAM EXEGUTION LOG -1`HIOPENTA~ Page 1 of 3 CDCR 2177-B (01118) 'San .Quentin .State Prison. Lethal Injection Infusion .Sub-Team Execution Log -Thiopental

Inmate Name CDCR # Date of Execution

Record Keeping Sub-Team Member Identification #:

Lethal Injection Chemical

Total Dose Per .Syringe Total Dose Per Tray

Step Task Time Comments 1. Infusion Sub-Team Members arrive at the Lethal In'ection Facili 2. Transfer of chemicals to Infusion Sub-Team. 3. Prepare Lethal Injection Chemical according to Lethal Injection Chemical Supplier instructions. __.__ ~ ~ A, -- ~~'fl11~~B~' - ~~6~ 4. Draw l.5 grams of the designated Lethal Inj~ctic~~i Chemical into a s rn e. 5. Label this syringe in red; A-1. Ei. Repeat step 4 and label this syringe in red; ~-2. 7. Repeat step 4 and label this syringe in red; A-3. 8. Repeat step 4 and 1abe1 this syringe in red; A-4. 9. Repcai step 4 and babel this syringe in red; A-S. 10. Dra~~v saline flush into syrinbe and label in whife; A-6. 'T[~~Y 13 - ~3~~kr~~ - ~lu~ -- 1 l. llraw 1,5 grams cat the designated Lethal Injection Chemical into a s ri~Ige. 12. 'Label this syringe in blue; B-L 13. 12epeat step 1 l and label t?~is syringe in blue; B-2. 14. Repeat step 11 and 'label this syringe in blue; B-3. 15. Repeat step 11 and label this syringe in blue; B-4. 16. Repeat step 11 arld label this syringe in blue; 8-5. 17, Draw saline flush into syringe and label in white; B-6. ___ _._ "~'~AY ~ - ~lternag~ (~~~k.up - k`~il€~r~~ 18. llraw 1.5 grams of the designated Lethal injection Chemical into a s rin e. 19. Label this syringe in yellow; Gl. 20. Repeat step 18 and label this syringe in yellow; C_2, 21. repeat step 18 and label this syringe in yellow; C=3. 22. Repeat step 18 and label this syringe in yellow; C-4. 23. Repeat step 18 and label this syringe in yellow, C-5. 24. Draw saline flush into syringe and label in white; G6. Excerpts of Record - 104 SAN QUENTIN STATE Case:Case PRISON 18-16547,3:06-cv-00219-RS LETHAL INJECTION 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 50 97 of of 62 297 INFUSION SUB-TEAM EXECUTION LOG.-THIOPENTAL. Page 2 of 3 CI7CR 2177-5 {01!18}

Step Task Time Comments I~~ ~t~ SI~Il. C)~ce death is dec[a~-e~l, anfusie~Yx of any re~ain~ng c~aer~i~al s~aall cease. 25. Infusion Sub-Team member..or Intravenous Sub-Team member verifies proper preparation of Trays A, B and C. 26. Saline drip for primary catheter stopped. 27. Inject syringe #A-1. 28. Consciousness check. If the inmate is not unconscious, check the catheter for atenc .Continue to ste 30. 30. Inject syringe #A-2. 31. Consciousness check (if necessary). If .the inmate is unconscious, continue to step 32. If the inmate remains conscious, discontinue Tray A and initiate Tray B in the backu intravenous catheter (ste 36). 32. Inject syringe #A-3. 33 . Inject syringe #A-4. 34. Inject syringe #A-5. 35. Inject syringe #A-6 Saline Flush, ~3ackup. If all six syringes in Tray A have been administered and death has not been declared after 10 minutes, ox if at any time during infizsion the primary. catheter has failed, continue to Tra F3. 36. Saline drip for backup catheter stopped. 37. Inject syringe # B-L 38, Consciousness check. If the inmate is not unconscious, check the catheter for potency. Cant nuE to step... 39 below. 39. Inject syringe # B-2. 4Q. Consciousness check (i~ necessary). If the inmate is unconscious, continue to step 41. If the inmate remains conscious, discontinue. Tray B and initiate Tray C in the alternate backu intrav~naus catheter (ste 45), 41. Inject syringe # B-3. 42. Inject syringe # B-4. 43. Inject syringe # B-S. 44. Inject syringe # B-6 Saline Flush. Alternate Backup. If all six syringes in Tray B have been administered and death has not been declared after 10 minutes, or if at any time during infusion the backup catheter has failed, continue to Tray C. 45. Saline drip for alternate catheter stopped. 46. Inject syringe # C-l. 47. Consciousness check. If the inmate is not unconscious, check the catheter for potency. Continue to step 4$ below. 4$. Inject syringe # G2.

Excerpts of Record - 105 SAN QUENTIN STATE Case:Case PRISON 18-16547,3:06-cv-00219-RS ~E7HAL. INJECTION11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 51 98 of of 62 297 lNFUSIAN SUB-TEAM EXECUTION LOG -THIOPENTAL Page 3 of 3 'CDCR 2177-k3 t01/1&)

Step Task Time Comments 49. Consciousness check (if necessary). If the inmate is unconscious, continue.to step 50. If the inmate remains conscious, discontinue Tray L. The execution shall be sto ed and medical assistance summoned. S0. Inject syringe # C-3. 51. ~ Inject syringe # G4. 52. Inject syringe # G5. S3. Inject syringe # C-6 Saline Flush. Physician declares death.

Lethal Injection "T'eam Administrator Date

Excerpts of Record - 106 Case:Case 18-16547,3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page Page 52 99 of of 62 297

CORRECTIONS AND REHABILITATION uTATE OF CALIFQRNIA DEPARTMENT OF RETURN ON EXECUTION WARRANT CDCR 2178 (01/18}

SUPERIOR COURT OF THE STATE C?F CALIFORNIA COUNTY OF

THE PEOPLE OF THE STATE OF CALIFORNIA Case No. vs. )

( )(inmate's name) ~ RETURN ON EXECUTION ~ WARRANT

To the Hanarable ,Judge of the Superior Court of the State of California, County of

I, ,Warden of the California State Prison at San Quentin, in compliance with Section 3607 of the Penal Cade.of the State of California, do hereby certify:

The Execution Warrant entitled Judgment of Death and Commitment issued in .this case on (date) by the Honorable ~ Judge of the Superior Court for the. County of ,was received at this institution on (date}, as required by Penal Code Section 1.227;

pn {date), shortly after 12:01 a.m., the above warrantwas executed within-the walls of San Quentin Prison, in compliance with the Execution Warrant, by administering a lethal injection to ,until he/she was dead. A true and correct copy of .the Certificate of 1Jeath is attached to this. Return.

In accordance with the. provisions of Penal Code Section 36Q5, I was present at this execution and invited the .presence of those witnesses required by this. Section.

DATED:

Warden California State Prison at San Quentin

Excerpts of Record - 107 STATE OF CALIFORNIA Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: DEPARTMENT03/08/18 15-2, OF Page CORRECTIONS 53100 of ofAND 62 297 REHABILITATION SAN QUENTIN STATE PRISON LETHAL INJEC'f10N INTR74VENOUS SUB-TEAM EXECUTION Lt?G CDCR 2179(01/18) Nage 1 ~f2

9 San Quentin State Prison Lethal. Injection Intravenous Sub-Teams.Execution Lag

Inmate Name CDCR# Date of Execution

Record Keeping Sub-Team Member Identification #

Step Task ~ ~ Time Comments 1. IV tubin and needles iven final check. 2. ECG ads are laced on inmate's chest. 3. ECG leads attached to monitor. 4. Ins ect inmate restraints to ensure .circulation. 5. Insert intravenous catheter -Primary. 6. Primar catheter atency confirmed. 7. Intravenous dri initiated -- Primar . 8. Insert intravenous catheter - Backu 9. Backu catheter atency confirmed. 14. Intravenous dri initiated - Backu . 11. Insert intravenous catheter -Alternate backup• 12. Alternate backu catheter atency confirmed. 13. Intravenous dri initiated -Alternate backu . 14. One :Intravenous Sub-Team Member exits Lethal Injection Room and goes to Infusion Room to record infusion of chemicals on ECG rah a per._~. _ 15. One Intravenous Sub-Team Member takes position next to inmate. to monitor intravenous lines and assess the consciousness of the inmate. liVFIJSIO~V. ~~ce death is decl~ered, infusion shalt cease. - - 16. Saline drip in primary infztsion site is stopped. 17. Syringe +A-1 administered; mark ECG rah a er #A-1. 1$. Sub-Team Member in Lethal Injection Roam chicks inmate fnr consciousness, Check catheter for potency if inmate is not unconscious. 19. S rin e#A-2 administered; mark ECG rah a er #A-2. 20. Sub-Teen Membea• in Lethal Injection Room checks inmate for consciousness. (if necessary). 21. S rin e #A-3 administered; mark ECG rah a ~r #A-3. 22. Syrin e #A-4 administered; mark ECG rah aper #A-4. If Thio ental Is Used,Proceed to Ste 23 Belnw. 23. Syrin e #A-5 administered; mark--_ EC'G graph paper #A-S. 24. Syringe #A-6 administered; mask ECG graph paper #A-6. If chemieals on Tray ~ are used the backup catiheter e~vill be used. 25. Saline dri in backu site is sto ed. 26. S rin e #$-1 administered; mark ECG rah a er #B-1. Excerpts of Record - 108 STATE OF CALIFORNIA Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: DEPARTMENT03/08/18 15-2, OF Page CORRECTIONS 54101 of of RND 62 297 REHABILITA710N SAN QUENTIN STATE PRISfJN LETHAL INJEC710N INl'R/~1VENOUS SUB-TEAM EXECUTION LOG CDCR 2179.(01/C 8) Page 2 of 2

27. Sub-Team Member in Lethal Injection Room checks inmate for consciousness. Check catheter for patency if inmate is not unconscious. 28. Syrin e #B-2 administered; mark ECG gra h a er #B-2. 29. Sub-Team Member in Lethal Injection Roam checks inmate for consciousness if necessar ). 30. Syringe #B-3 administered; mark ECG rah a er #B-3. 31. Syrin e #B-4 administered; mark ECG gra h a er #B-4. If Thio ental Is Used,Proceed to Ste 32 Below. 32. Syrin e #B-5 administered; mark ECG rah aper #B-S. 33. Syringe #~3-6 administered; mark.ECG graph paper #B-6.

If cherraicals on 'fray C are used the alternate backup ~athete~• mill be used. 34. Saline drip in alternate backup site is sto ed: 35. S rn e #C-1 administered; mark ECG gra h a er #C-1. ~~~ 36. Sub-Yearn Member in Lethal Injection Room checks. inmate for consciousness. Check catheter.far patency if inmate is not unconscious. 37. S rin e #C-2 administered; mark ECG rah a er #C-2. 38. Sub-Team Member in Lethal Injection Room checks inmate ousness sary>). ------.for consci (if neces 39. S ringe #C-3 administered; mark ECG graph paper #C-3. 40. Syringe #G4 administered;___'m ark ECG graph paper.#G-4. _ If Th~iap ental Is Used, Pr~~~ed____ to Ste 41 Below, 41. S singe #C-5 administe~~ed; mark ECG graph paper #~C-5. 42. S sin e #C-6 adrn nistercd; mark I CG~iph pa er #C-6. 43. Mark ECG gra h a er when death is declared. 44. Pre are final re ort, -

Lethal Injection Team Administrator Date.

Excerpts of Record - 109 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page 55102 of of 62 297

REHABILITATION ~uTATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND SAN QUENTIN STATE PRISON LETHAL INJECTION TEAM ADMINISTRATOW7EAM SUPERVISOR EXECUTION LOG. CDCR 2181 (QIl18) Page 1 of 2

San Quentin State Prison Lethal Injection. Team Administrator/Team Supervisor. Execution Log

Inmate Name CDCR # Date of Execution

Record Keeping Sub-Team Member Identification #

Ste Task Time Comments 1. 3 hours prior: Assemble. Record-Keeping Sub-Team and. make assignments. Record I~e~in~~ub-'~'eam aetivat~d• E ~~cution I_,a~~s b~.~i~e. 2. The ~1'eam Supervisor removes the Lethal. Injection .Chemical from the Lethal In'ection Facility safe. 3. The Team Supervisor transfers custody of the Lethal Injection Chemical to two members of the Lethal injection Infusion Sub- Team and completes the CDCR Fnrm 21`76 Lethal Injection Chain of Custody San Quentin State Prison, 4. The. Team Administrator along with the. Warden of San .Quentin meet with the condemned inmate in the Legal Injection Facility holding cell area. • Ask if the inmate wishes to write a last statement to be read after the execution. • Advise the inmate a sedative may be requested, and if approved. by a physician, the .sedative shall be administered under their direction. 5. The Lethal Injection Team Administrator and Team Supervisor po in the Infusion Control room. take- --- sitions Injection Chemical is initiated. 6. Infusion--- of Lethal -- 7. Flat line noted on ECG. h clectared. 8. Dea~-- -- Witnesses notified that inmate has ex iced. 9. ------rtains drawn on viewing windows. 10. Cu- --._ - — 11. Inmate"s body prepared for Coroner/Mortuary. If' ~he~i~aig t~~ 'Tr~~ I3 are used ~h~ ~aekup ~athetet~ mill be ~sec~. 12. Repe~~t protocol 13. Flat line noted on ECG. 14. Death declared. notified that innnate has ex fired. "' 15. Witnesses-- - -_ 16. Curtains.drawn an viewing windows. inmate,"s body prtpared for Coroner/Mortuary. -_- 17.__ ___ -.__ _ _ --- - _ -, - --- — _ _._-- —_ _------_._ -- If che.nnicals urn ~~~ C` are, used the ~lter~ate ~a~:k~c~atheter a~~il~ ire used._ 18. Re eat protocol. 19. Flat line noted on ECG.

Excerpts of Record - 110 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page 56103 of of 62 297 a STATE OF CALIFORNIA DEPARTMENT QF CORREGTIpN5 AND REHABILITATIQN SAN G2UENTIN STATE PRISON LETHAL INJECTION TEAM AQMIPIISTRA70R/TEAM SUPERVISOR EXECUTION LOG CDCR 21.81 (01/18j Page 2 of 2

Ste Task Time Comments 20. Death declared, 21. Witnesses notified that inmate has expired. 22. Curtains drawn on viewin windows. 23. Inmate's body re ared for Coroner/Mortuar .

Lethal Injection Team Administrator: Date:

Excerpts of Record - 111 AND REHABIIiTATION STATE OF CAU~ORNIA Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry:DEPARTMENT 03/08/18 15-2, OF PageCORRECTIONS 57104 of of 62 297 SAN QUENTIN STATE PRISON TEAM SUPERVISOR EXECUTION REPORT ~DCR 21$2 (01/18} San Quentin State Prison Team Supervisor Execution 12eport PAGE C}F

EXECUTION TEAM SUPERVISOR: DATE: 1. SUMMARY AND BRIEF DESCRIPTION OF EXECUTION:

2. UNUSUAL WENT:

3. NARRATIVE OF EXECUTION:

INMATE NAME: LAST FIRST M1DDL~ CDCR #

Excerpts of Record - 112 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page 58105 of of 62 297

OF AND REHABILITATION ~TA7E OF~CALIFQRNIA DEPARTMENT CORRECTIONS SAN QUENTIN STATE PRISON TEAM MEMBER EXECUTION REPORT CDCR 2183 (01/98)

t' • "~ •• ~

TEAM MEMBER ID# PAGE OF TEAM ASSIGNMENT: DATE: NARRATIVE:

INMATE NAME: LAST FIRST MIDDLE CDCR #

Excerpts of Record - 113 j Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page 59106 of of 62 297 l " ~r ";~t~'t'Y~"Tt ~TIO:~ (~F F1~:c;[;TI ~:1TF .,tiIJ (wHfltt.F: QF' F`CFt~CTi~1'~ 1j F:"f~i~~t~ ~a ~t~ . ~, ,~.F T~ ~~.,9 _. z.~j „~~ ~

{~II _ _._.~...o_ _~~ Z~ — -- -- .___.~, —_~. h3i:~h'T}f. t~,~~k:. tiiD Y'.~AR ~"..:, r "i:-f. ! _~ . _.Jt.~ik.: was se~.r~ r~ ~.~arrar~t of A xecu~ian number _ ~,.Y ~...~ ~ ----is~~z~c~ WSJ .County Su~arior Coy -ton^.. ka~.::v , _ ,.. .::j ,. ..u,

it ~T~s e~l~.ined to me that 1 h~ti•~ an erec~uti~n date of____. .._,.~.~___ ..._..~._,.~,.._ w ..and that I may choose either lethal gas or leth-~.1 i~ ..ctzan as the method of execution. I understand that I ha~,~e ten da~•s from the to of the ser~~ic~ of the warrant, or until _ to rr~~l~E this ch~~~c~ in ti~~ritin~ ~o the 4t';~rc~tYn

I also understand that if I coca not riiak~ .: hoi~:~, letha? injection ~~-~ll be the method of execution.

..i. ~.. -,. ..

,...... :,, ...... C.,... S .:.: ~ ,....

Excerpts of Record - 114 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page 60107 of of 62 297 ~~ •, r II{)I~~~F C7 F' ~'`ECL'Ti~?ti 1tl }t7 ~ 1 ;T~\t+>t .4' s .`;tip. ..~. a ~~ ~' c.., ~w , ,r.}, -~~ ~,r~ ~' { ~~ .r s

~, ~.._._._., .~~. - ~~~C7 .. ,~...~___....,,._... .~__ ~..._. -- — -- was served Warrant €~f Execution number.__.__ _ . __._..__._ _ _ ~._-.-issue ~y°ray ;, ;- , ~,~f~~~rt~~° ~~up~~c~~ ~.,~~~ar~ +~z~

I ha~.•e been. noti.~ie~i that rir}~ ~.y:~~cutiai~ date w~i11 be..~....~...... anci that T m,~4~ c:hr~n~~ ~~ithf;r l+Ythi~l ~~s nr lethal inj~r:t.iC~n ; thfl meth~7ci s~fexecutian. I und~~~stan~ th:~t I t~:~r~ tc~n ci:i~•~ f~~~~m ttic' c~a~,~ the ~~~arra:~t ~;~a;; served, or until .,~,_...._._ ~,,_~.M_..__.~ __.,_~. .. ,_ ._...~.., tc ;_,~~e this choice in writing to the ... .1:

~i~+ ~.r{~E? A.

I~~.l~r>~iz~~l~~r~t~~t~~~t~~;~t.'.'i~~~;ti~tr~l;ak~~,~~~:~1~~~ 3F,~}~:•,l~.;i~~~~trx~~n~,~•ill:~Y•tltf~~,~t~~t~~;~~~af~~ec~a~ian.

This is to notify the ~t~'ar.i~n: that, rY~=, k~oice is~. ~_~. (either lethal has car lethal in ~ctz+ ~,

~____._ ___ . , ____.~~r ~_ _ _.__ ,: ,.., .,

i f;. Excerpts of Record - 115 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 635 Filed DktEntry: 03/08/18 15-2, Page 61108 of of 62 297 ~t~ (Lt iC'f: OF 1~:`~F~C'l.'(']Oti 1,l.titid;~ ~

{)~ I~~r~1E3 i~t-~~;~3

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IrLmate has received a cc~~y ofche ~~Iarrant of Executic;n'>,~~~ refuses to sign far it

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r s Inr ~1. ~ r,c.c~stay~ rr r~ i.1~ k,~ .,~t,~w~ r7~.;~w lip`,~ ~:~~1 i~': .~.,ei~ t_ '.. t+`+aiC ~:G;~ `.i. 4 ?~„~..... i ci.7 .. ~:~~G'~ 5f'~~~GC' ~}1 L~1S

e~ecutic~n warrant. This to c~u~ ~~ric~c' e rt~ or,

{ } Inmate understands he will be recont~ ..e~ on tie above date. if the ~'~'arden has not received his written notir.e of choice. t } Inmate understands if h~ ma1:e~ r . hoic~. e~cecutic~n ~~•ill be imposed by Lethal iniectian ~ } Inrnzte ;~n~ierstan~s t~t~ n..ture ~ tt~~ c~ocurs~~nt and tElc: ~~~ss~o ~ r~u~n~t~~at~un~ ( ) Inn~:~te his been in cc~nt.~~t ~ ~ ~ h (eR,~ai counsel ~~~~ardi~;> t~~is mattwr ( ~ trlm~t~ urlderstand5 he w~~~'~ be inte;-ti~ie~~~ec~ b~~ ps~~~chiatrie ~tat~~anc~ a re~~,r~ c~~ t~~~ir ~ndins~s wii~ be fiEed

t It~P:71tt' Cf:1ICS1J CO ~7c' t?? `-. c t~lt~l { ) Inmate undersiand~ ' ;. ~~~ill be inter~~ieu~eci bti~ a Lha~iain anca ~-~ r,~r~;~es:ific rep,~rt « ;1 be filed t ~ Inmate has had ~- ~cpl~n;~t ~~n ~t't~~e c«~~se ~fc~~ents ses it r7i~~:i~~n by the 11~'~~trr:~nt c~~f Execution.

~_:

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CERTIFICATE OF SERVICE

Case Name: Michael Angelo Morales v. M. Cate, et al. No. C 06-0219 RS

I hereby certify that on March 8, 2018, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:

● NOTICE RE: FINALIZATION OF LETHAL INJECTION PROTOCOL

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on March 8, 2018, at Sacramento, California.

D. Jones /s/ D. Jones Declarant Signature

SF2007200210 33309007.docx

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MICHAEL ANGELO MORALES, et al., Case No. 06-cv-0219 RS 7 06-cv-0926 RS Plaintiffs, 8 DEATH PENALTY CASE v. 9 ORDER GRANTING MOTIONS TO SCOTT KERNAN, Secretary of the INTERVENE AND TO STAY 10 California Department of Corrections and EXECUTION AND GRANTING Rehabilitation, et. al., MOTION FOR JUDICIAL NOTICE 11 Defendants.

Re: Doc. No. 621, 629

a 12

13 14 INTRODUCTION 15 Ronaldo Medrano Ayala is a condemned inmate at San Quentin State Prison whose direct 16 and collateral attacks on his conviction and sentence have concluded. He moves to intervene in 17 the instant actions, which involve challenges to the constitutionality of California’s protocol for United States District Court

Northern District of Californi Northern District of 18 executions by lethal injection, and to have his execution stayed pending the conclusion of this 19 litigation. (Doc. No. 621.) The Court discussed the relevant issues in detail in a prior order 20 permitting intervention by, and granting stays of execution to, three other prisoners who are, for 21 relevant purposes, identically situated to the current would-be intervenor. (Doc. No. 563.) The 22 present order therefore contains only a limited discussion of the issues to the extent necessary to 23 resolve the instant motion. 24 BACKGROUND 25 When condemned prisoner Michael Angelo Morales initiated this litigation, the prior 26 assigned district judge conditionally denied his request to stay his execution. Morales v. Hickman, 27 415 F. Supp. 2d 1037 (N.D. Cal. 2006). Defendants did not execute Morales as scheduled, and a 28 stay of execution issued pursuant to the Court’s conditional order. Discovery and an evidentiary

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1 hearing followed, after which the Court concluded that the lethal-injection protocol, as 2 implemented, violated the Eighth Amendment. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 3 2006). The Court then acceded to a joint request by Morales and Defendants to refrain from 4 proceeding further with the present litigation until related state-court and administrative processes 5 were completed. Those administrative processes remain active. Following certain state proceedings, Defendants scheduled Albert Greenwood Brown’s 6 execution. Brown moved to intervene and for a stay of execution. Recognizing that “Brown’s 7 federal claims are virtually identical to those asserted by . . . Morales,” (Doc. No. 401 at 1), the 8 Court permitted Brown to intervene, but conditionally denied the stay application. Brown 9 appealed to the Court of Appeals for the Ninth Circuit. Morales v. Cate, 623 F.3d 828, 829 (9th 10 Cir. 2010). On remand, pursuant to guidance from the Ninth Circuit, this Court stayed Brown’s 11 execution.

a 12 Condemned prisoners Mitchell Carlton Sims and Stevie Lamar Fields subsequently moved 13 to intervene as Plaintiffs in these actions, and requested that their executions be stayed. 14 Significantly, “Defendants acknowledge[d] that the intervenors have a ‘claim or defense that 15 shares with the main action a common question of law or fact,’” (Doc. No. 472 at 2 (quoting Fed. 16 R. Civ. P. 24(b)(1)(B))), and they did not oppose permitting intervention and staying the 17 executions scheduled for Sims and Fields. The Court found that “Sims and Fields are similarly United States District Court Northern District of Californi Northern District of 18 situated to Morales and Brown in that they are condemned prisoners whose executions are not 19 otherwise stayed and whose claims in their complaint in intervention are virtually identical to 20 those asserted by Morales and Brown.” (Doc. No. 473 at 1–2.) Accordingly, the Court concluded 21 that “Sims and Fields are entitled to intervene and, like Morales and Brown, to have their 22 executions stayed until the present litigation is concluded.” (Id. at 2.) 23 In regards to the next prisoner whose execution was to be scheduled, David A. Raley, the 24 parties jointly stated that,

25 Raley is similarly situated to Fields, Sims, Morales, and Brown in that he is a condemned prisoner whose execution is not otherwise 26 stayed. He will join in the Fourth Amended Complaint, thereby presenting identical claims to those asserted by Morales and Brown. 27 Accordingly, Raley is entitled to intervene and, like Morales, Brown, Fields, and Sims, to have his execution stayed until the 28 present litigation is concluded. 2 Excerpts of Record - 119 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 631 DktEntry: Filed 12/04/17 15-2, Page Page 112 3 of of 6 297

1 (Doc. No. 511 at 2.) The parties therefore stipulated and asked the Court to order that,

2 Raley may intervene as a Plaintiff in this litigation as to the Fourth Amended Complaint, and that all proceedings related to the 3 execution of his sentence of death, including but not limited to preparations for an execution and the setting of an execution date for 4 Mr. Raley, are hereby stayed on the same basis and to the same extent as in the case of Plaintiffs Morales, Brown, Fields, and Sims. 5 (Id. at 2–3.) 6 The Court initially did not act on the stipulation, as it appeared unnecessary to do so. 7 However, when there was no longer a sufficient basis to defer action, the Court granted the 8 parties’ joint request, noting that “the parties are correct that Raley is similarly situated to the 9 present Plaintiffs and therefore entitled to intervene and to have his execution stayed.” (Doc. No. 10 563 at 4.) 11 Tiequon A. Cox and Robert Green Fairbank, Jr., were the next prisoners to move to

a 12 intervene in the instant actions and to request stays of execution. Even though Defendants did not 13 oppose intervention by, and stays of execution for, Sims and Fields, and had stipulated to 14 intervention by, and a stay of execution for, Raley, Defendants opposed the motions filed by Cox 15 and Fairbank. However, as the Court recognized, Cox and Fairbank were, “for purposes of the 16 present litigation, identically situated to Morales, Brown, Sims, and Fields, as well as Raley.” 17 Accordingly, the Court held that Cox and Fairbank were “entitled . . . to intervene and to have

United States District Court their executions stayed until this litigation is concluded.” (Id.) Northern District of Californi Northern District of 18 19 Subsequently, Kevin Cooper, Scott Pinholster, William Payton, Fernando Belmontes, Jr., 20 Royal Kenneth Hayes, Richard Delmer Boyer, Ron Deere, Harvey Lee Heishman, Anthony Jack Sully, Albert Cunningham, Douglas Mickey, Hector Ayala, Richard Samayoa, Raynard Paul 21 Cummings, and Conrad Jess Zapien were allowed to intervene and were issued stays of their 22 executions over Defendants’ objections. (Doc. Nos. 581, 586, 606, 620.) 23 DISCUSSION 24 Defendants oppose the current motion to intervene and stay of execution. As with prior 25 motions to intervene, they argue that the current proceedings are either moot or not ripe for review 26 in light of the fact the lethal injection protocol that is the subject of this litigation is enjoined and 27 efforts are underway to promulgate a one-drug lethal injection protocol. Opp. at 3-7. Defendants 28 3 Excerpts of Record - 120 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 631 DktEntry: Filed 12/04/17 15-2, Page Page 113 4 of of 6 297

1 filed a Statement of Recent Decision, wherein the California Office of Administrative Law 2 disapproved of the proposed lethal injection protocol because defendants failed to resolve all 3 previously noted “necessity and clarity” issues. (Doc. 616-1 at 2.) The following week, the 4 California Supreme Court issued a final decision in Briggs v. Brown, 3 Cal.5th 808 (2017), 5 upholding the validity of Proposition 66, which exempts death penalty protocols from the California Administrative Procedures Act. Defendants have yet to announce how they intend to 6 proceed with the draft lethal injection protocol. 7 Defendants raised similar arguments regarding mootness and ripeness in opposing 8 intervention by, and stays of execution for, Cox and Fairbank. The Court rejected Defendants’ 9 assertion, noting that “one-drug executions have been at issue in this litigation since it 10 commenced.” (Doc. No. 563 at 4.) Moreover, it found “‘a number of critical deficiencies,’. . . in 11 Defendants’ prior protocol that were not related to the number of drugs used.” (Id. at 4-5, quoting

a 12 Morales v. Tilton, 4654 F. Supp. 2d at 979.) Thus, some specific relief is still obtainable and the 13 case is not moot. See West v. Sec’y of Dept. of Transp., 206 F.3d 920, 924 (9th Cir. 2000). As 14 with prior motions to intervene following those of Cox and Fairbank, Defendants make no 15 showing that the Court should reconsider its prior conclusions. 16 Defendants now argue that the Court’s finding that one-drug executions have been at issue 17 in the litigation since it commenced is “accurate only to the extent that the operative FAC that United States District Court Northern District of Californi Northern District of 18 Ayala seeks to join alleges that a one-drug execution is the Plaintiffs[’] preferred method of 19 execution.” Opp. at 2. Additionally, Defendants challenge the fact that “Ayala, nor this Court, 20 have identified any deficiencies in the terms of a protocol or the manner in which a protocol would 21 be implemented that are found to exist today, in 2017.” Id. The operative protocol was found to 22 be deficient by a California state court and the method by which it was implemented was found to 23 be deficient by this Court. Defendants have not yet replaced that protocol and, thus, have not 24 shown that they have obviated the constitutional issues that have existed since the litigation began. 25 Moreover, “a defendant’s decision to stop a challenged practice generally ‘does not deprive a 26 federal court of its power to determine the legality of the practice.’” Akina v. Hawaii, 835 F.3d 27 1003, 1010 (9th Cir. 2016), quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 28 4 Excerpts of Record - 121 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 631 DktEntry: Filed 12/04/17 15-2, Page Page 114 5 of of 6 297

1 528 U.S. 167, 189 (2000).1 2 Defendants also challenge Ayala’s intervention based on a purported admitted failure to 3 exhaust administrative remedies. Like Ronaldo Ayala, prior intervenors cited Beardslee v. 4 Woodford, 395 F.3d 1064 (9th Cir. 2005), for the proposition that they were not required to 5 exhaust administrative remedies. Most alleged that they had filed an administrative grievance or appeal, but did not allege that they completed the process. The would-be intervenors’ arguments 6 both past and present regarding not being required to exhaust administrative remedies under 7 Beardslee are well-taken. 8 For purposes of the present litigation, Ronaldo Ayala is identically situated to Morales, 9 Brown, Sims, Raley, Cox, Cooper, Fairbank, Pinholster, Payton, Hayes, Boyer, Deere, Heishman, 10 Sully, Cunningham, Mickey, Ayala, Samayoa, and Cummings.2 The Court must treat identically 11 situated persons the same. Accordingly, the Court must permit Zapien to intervene and must stay

a 12 his executions until the present litigation is concluded. 13 Good cause appearing therefor, the Court GRANTS Ronaldo Medrano Ayala’s motion to 14 intervene and to have his execution stayed (Doc. No. 621). As is the case for Plaintiffs Michael 15 Angelo Morales, Albert Greenwood Brown, Mitchell Carlton Sims, David A. Raley, Tiequon A. 16 Cox, Robert Green Fairbank Jr., Kevin Cooper, Scott Pinholster, William Payton, Royal Kenneth 17 Hayes, Richard Delmer Boyer, Ron Deere, Harvey Lee Heishman, Anthony Jack Sully, Albert United States District Court Northern District of Californi Northern District of 18 Cunningham, Douglas Mickey, Hector Ayala, Richard Samayoa, and Raynard Paul Cummings, 19 and Conrad Jess Zapien, all proceedings related to the execution of Ronaldo Medrano Ayala’s 20 death sentence, including but not limited to preparations for any execution and the setting of an 21 execution date, are hereby stayed until the conclusion of this litigation. 22

23 1 Defendants also argue that “[n]one of the Court’s orders address the standards in Baze or Glossip 24 or explain why the holdings of those cases are inapplicable to this case.” Opp. at 3. To the extent Defendants wish to litigate the merits of the Fourth Amended Complaint, this goes against the 25 stipulation they signed to stay the matter until a viable lethal injection protocol is in place. See Doc. No. 552. Moreover, a decision on the merits of the pending complaint would not be 26 appropriate in the posture of the present motion. To the extent Defendants argue the Court has not addressed the relevant standards a capital prisoner must show to stay his execution, they are 27 incorrect.

2 28 Intervenors Stevie Lamar Fields and Fernando Belmontes, Jr., are deceased. R. Ayala Mot. to Intervene at 3, fn 1. 5 Excerpts of Record - 122 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 631 DktEntry: Filed 12/04/17 15-2, Page Page 115 6 of of 6 297

1 Defendants’ motion for judicial notice of the Marin County Superior Court Order, dated 2 February 21, 2012, attached to Defendants’ motion as Exhibit A, is GRANTED. 3 4 IT IS SO ORDERED.

5 Dated: December 4, 2017 ______6 RICHARD SEEBORG 7 United States District Judge 8 9 10 11

a 12 13 14 15 16 17 United States District Court

Northern District of Californi Northern District of 18 19 20 21 22 23 24 25 26 27 28 6 Excerpts of Record - 123 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 628 FiledDktEntry: 11/16/17 15-2, PagePage 1161 of of22 297

XAVIER BECERRA Attorney General of California JAY M. GOLDMAN Supervising Deputy Attorney General MICHAEL QUINN Deputy Attorney General State Bar No. 209542 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5726 Fax: (415) 703-5799 E-mail: [email protected]

R. LAWRENCE BRAGG Acting Supervising Deputy Attorney General State Bar No. 119194 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 445-2595 Fax: (916) 324-5205 E-mail: [email protected] Attorneys for Defendants Brown, Kernan, and Davis

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

C 06-0219 RS MICHAEL ANGELO MORALES, et al., C 06-0926 RS Plaintiffs,

v. DEFENDANTS’ OPPOSITION TO AYALA’S MOTION TO INTERVENE AND FOR STAY OF EXECUTION SCOTT KERNAN, Secretary of the California Department of Corrections and Judge: The Honorable Richard G. Rehabilitation, et al., Seeborg Trial Date: Not Set Defendants. Action Filed: January 5, 2006

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Introduction ...... 1 Summary of Relevant Facts ...... 2 Argument ...... 3 I. The Motion to Intervene Must Be Denied ...... 3 A. The Fourth Amended Complaint Does Not Present a Live Case or Controversy and The Entire Case Is Moot ...... 3 B. The Issues in the FAC Are Not Ripe dor Review ...... 5 C. Intervenor’s Reliance on the 2006 Memorandum of Intended Decision is Misguided 6 II. The FAC Filed in 2010 Does Not State a Claim for Relief ...... 7 III. The Motion Should Be Denied Because Ayala Admits He Did Not Exhaust His Administrative Remedy ...... 9 IV. Ayala Does Not Meet Rule 24’s Requirements for Intervention ...... 10 V. Ayala Is Not Entitled to a Stay of Execution ...... 10 VI. A Stay of Preparations Relating to Executions Is Overbroad ...... 13 Conclusion ...... 14

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CASES

Alvarez v. Smith 558 U.S. 87 (2000) ...... 4

Arizonans for Official English v. Arizona 520 U.S. 43 (1997) ...... 4

Arthur v. Commissioner, Alabama Department of Corrections 840 F.3d 1268 (11th Cir. 2016) ...... 7

Baze v. Rees 553 U.S. 35 (2008) ...... passim

Beardslee v. Woodford 395 F.3d 1064 (9th Cir. 2005) ...... 10

Beaty v. Brewer 649 F.3d 1071 (9th Cir. 2011) ...... 1

Beaty v. Brewer 791 F. Supp. 2d 678 (D. Ariz. 2011) ...... 12

Brewer v. Landrigan 562 U.S. 996 (2010) ...... 1, 7, 13

Brooks v. Warden 810 F.3d 812 (11th Cir. 2016) ...... 8

Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.) 77 F.3d 278 (9th Cir. 1996) ...... 7

California ex rel Lockyer v. United States 450 F.3d 436 (9th Cir. 2006) ...... 10

Church of Scientology of Calif. v. United States 506 U.S. 9 (1992) ...... 5

Clemons v. Crawford 585 F.3d 1119(8th Cir. 2009) ...... 13

Cooey v. Strickland 589 F.3d 210 (6th Cir. 2009) ...... 13

Cooper v. Rimmer 379 F.3d 1029 (9th Cir. 2004) ...... 6

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Creech v. Reinke 2012 WL 1995085 (D. Idaho, June 4, 2012)...... 9

Cuviello v. City of Oakland No. C-06-cv-5517 MHP (EMC), 2009 U.S. Dist. LEXIS 26067 (N.D. Cal. Mar. 19, 2009) ...... 13

Dickens v. Brewer 631 F.3d 1139 (9th Cir. 2011) ...... 5, 9, 11, 13

Dunn v. McNabb ___ S.Ct. ___ 2017, 2017 WL 4698311 (Oct. 19, 2017) ...... 1, 12

Emmett v. Johnson 532 F.3d 291 (4th Cir. 2008) ...... 13

Gissendanger v. Comm’r, Georgia Dept. of Corr. 803 F.3d 565 (11th Cir. 2015) ...... 8, 9

Glossip v. Gross 135 S. Ct. 2726 (2015) ...... passim

Gregg v. Georgia 428 U.S. 153, 173 (1976) ...... 6

Harbison v. Little 571 F.3d 531 (6th Cir. 2009) ...... 13

Hill v. McDonough 547 U.S. 573 (2006) ...... 10, 11, 13

Jackson v. Danberg 594 F.3d 210 (3rd Cir. 2010) ...... 13

Jeffries v. Wood 114 F.3d 1484 (9th Cir. 1997 ...... 6, 7

Landrigan v. Brewer 625 F.3d 1132 (9th Cir. 2010) ...... 11

Lopez v. Brewer 680 F.3d 1068 (9th Cir. 2012) ...... 11, 12

Mashiri v. Dep’t. of Educ. 724 F.3d 1028 (9th Cir. 2013) ...... 5

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McKinney v. Carey 311 F.3d 1198 (9th Cir. 2002) ...... 9

Morales v. Cate 2010 U.S. Dist. LEXIS 101376 (N.D. Cal. Sept. 24, 2010)...... 6

Nooner v. Norris 594 F.3d 592 (8th Cir. 2010) ...... 12

Raby v. Livingston 600 F.3d 552 (5th Cir. 2010) ...... 13

San Diego County Gun Rights Comm. v. Reno 98 F.3d 1121 (9th Cir. 1996) ...... 5

Securities and Exchange Comm. v. Medical Committee for Human Rights 404 U.S. 403 (1972) ...... 4

Thomas v. Union Carbide Agr. Products Co. 473 U.S. 568 (1985) ...... 5

Towery v. Brewer 672 F.3d 650 (9th Cir. 2012) ...... 11

Turner v. Safely 482 U.S. 78 (1987) ...... 14

West v. Brewer 652 F.3d 1060 (9th Cir. 2011) ...... 11

Whitaker v. Livingston 732 F.3d 465 (5th Cir. 2013) ...... 11

Williams v. Kelley 854 F.3d 998 (8th Cir. 2017) ...... 11

Wood v. Collier 836 F.3d 534 (5th Cir. 2016) ...... 8

Woodford v. Ngo 548 U.S. 81 (2006) ...... 9

STATUTES

United States Code, title18 § 3626(a)(1)(A) ...... 13

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United States Code, title 42 § 1983 ...... 9, 10 § 1997e ...... 9

California Code of Regulations, title 15 § 3084.1(a) ...... 9 §§ 3349 et seq. (2010) ...... 2

California Penal Code § 3604.1 ...... 4

CONSTITUTIONAL PROVISIONS

Eighth Amendment ...... passim

COURT RULES

Federal Rules of Civil Procedure rule 24(a) ...... 1, 10, 14 rule 24(b) ...... 10 rule 24(c) ...... 3 rule 65(d) ...... 13

OTHER AUTHORITIES

California Administrative Procedures Act ...... 4, 5

Prison Litigation Reform Act of 1995 ...... 9, 13

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INTRODUCTION Ayala’s request for intervention should be denied on any of the following grounds: (1) he seeks to join a dormant lawsuit over which this Court lacks jurisdiction because a live case or controversy no longer exists; (2) the Fourth Amended Complaint he seeks to join does not meet the pleading burdens required of condemned inmate-plaintiffs by the United States Supreme

Court in Glossip v. Gross, 135 S. Ct. 2726 (2015); (3) he has not exhausted his administrative remedy; and (4) the motion does not comply with the requirements of Federal Rule of Civil Procedure 24. Ayala has not produced any evidence to show that an aspect of a present-day execution protocol in effect, or the manner in which a protocol now would be implemented, meets the United States Supreme Court’s mandatory standard for a stay of execution. An order granting a stay of execution will be overturned if it does not include a finding that a plaintiff is likely to succeed on the merits of his claim challenging a method of execution. Dunn v. McNabb, ___ S.Ct. ___ 2017, 2017 WL 4698311 (Oct. 19, 2017). The Supreme Court places the burden on a condemned inmate to prove with evidence that an aspect of a protocol or its implementation will create a substantial risk of causing severe pain when compared to a known and readily available alternative. Baze v. Rees, 553 U.S. 35, 50 (2008); Glossip, 135 S.Ct. at 2737. A stay based on speculation rather than evidence, which is what Ayala is requesting, will be overturned. Brewer v. Landrigan, 562 U.S. 996 (2010); Beaty v. Brewer, 649 F.3d 1071, 1074 (9th Cir. 2011). And Ayala’s vague references to this Court’s 2006 tentative decision cannot substitute for evidence or satisfy the requirements to state a claim required by Baze and Glossip. Repeated references by this Court and Ayala to the fact that, in the past, this Court has granted motions to intervene, and has stayed executions even though no evidence was submitted in support of such orders, is not a justification to do so again. Rather than compound this severe legal error by issuing an additional stay of execution contrary to, and without any reference to, the

Baze and Glossip standards that are binding on this Court, this Court should deny Ayala’s request for a stay of execution, as well as the bar on preparations for any execution.

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SUMMARY OF RELEVANT FACTS Ayala seeks to join in the Fourth Amended Complaint (FAC). (ECF No. 621 at 12:3-7.) According to that 2010 complaint, plaintiffs challenge “the protocol established in California Code of Regulations title 15, sections 3349 et seq. (2010), which is nearly identical to San Quentin Operational Procedure No. 770, May 15, 2007, (“Regs./OP 770”), as well as certain practices not delineated in the protocol.” (ECF No. 428 at 6.) The protocol specified in the FAC was a three-drug execution procedure that was invalidated by a state court in February 2012. (Marin County Superior Court Order, Request For Judicial Notice (RJN), Ex. A; Order, ECF No. 563 at 5:16.) For the last five years California has not had an execution procedure in effect. (Id. at 5:16-17.) Ayala does not allege that an execution protocol is in place, that a California district attorney is currently moving for an execution warrant, or that a California state court has set an execution date for any movant; rather, Ayala alleges that there is substantial uncertainty whether this will occur.1 (ECF No. 621 at 8:15-17.) Ayala has not submitted facts and evidence to support his request to intervene and for a stay of execution, and has not submitted a new proposed complaint in intervention. (Id. at 12:3-7.) Further, Ayala admits that he has not exhausted his administrative remedy through the final level of review. (Id. at 10:20-22.) As a result, this Court should deny Alaya’s requests to intervene and for a stay of execution, consistent with binding precedent. This Court has granted intervention, and stays of execution, for 17 condemned inmates since the lethal injection regulations were invalidated on February 21, 2012. (Orders, ECF Nos. 563, 581, 586, 606, and 612.) Defendants have opposed all of these requests for stays.2 (Oppositions, ECF Nos. 537, 561, 576, 584, 597, 603, and 614.) However, no evidence has been submitted in support of any of these post-invalidation stays of execution and the Court has not identified the facts or legal standard relied upon to support the stays of execution. (Orders, ECF

1 Under California law, execution dates are set by a state superior court upon application by a district attorney. (ECF No. 446 at 4.) 2 The stipulation regarding plaintiff Raley was filed in March 2011, before the 2010 lethal injection regulations were invalidated. (ECF No. 511.)

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Nos. 563, 581, 586, 606, and 612.) None of the Court’s orders address the standards in Baze and Glossip or explain why the holdings of the cases are inapplicable to this case. (Id.) The only facts cited in support by both Ayala and this Court in previous orders granting stays of execution is the fact that this Court previously granted numerous stays of execution. (Id. at 8:16-17, 9:10- 11, 10:1-16; see also Order, ECF Nos. 620 at 2:13-22, 3:11-23.) The Court has, as it did in a recent order granting a stay, stated that one-drug executions have been at issue in this litigation since it commenced. (ECF No. 620 at 4.) But this is accurate only to the extent that the operative

FAC that Ayala seeks to join alleges that a one-drug execution is the Plaintiffs preferred method of execution. (ECF No. 428 at 48:15-26.) The Court has not explained in its prior orders why the possibility that the Defendants may provide this method of execution is a basis to stay an execution. And Ayala also has failed to do so. The Court also has, as it did in its most recent order, asserted that in 2006 it found other deficiencies with a defunct three-drug protocol in effect 11 years ago, and that these deficiencies go beyond the issue of the number and type of drugs used. (Order, ECF No. 620 at 4.) Ayala has also cited to the 2006 Memorandum of Intended Decision. (ECF No. 621 at 5:22-6:5.) And in its last order, the Court asserted that such deficiencies “remain a very real concern for any protocol” and that as a result, some specific relief is still obtainable. (ECF No. 620 at 4.) But neither Ayala, nor this Court, have identified any deficiencies in the terms of a protocol or the manner in which a protocol would be implemented that are found to exist today, in 2017. (ECF No. 621; see also Orders, ECF Nos. 606, 612.) And Ayala has not identified an alternative that is supposedly known, readily available, and will cause less risk of pain, than a specific term in a protocol in effect, or a specific manner in which a present-day protocol now in effect will be performed. (Id.) ARGUMENT

I. THE MOTION TO INTERVENE MUST BE DENIED. A. The Fourth Amended Complaint Does Not Present A Live Case Or Controversy And The Entire Case Is Moot.

Under Federal Rule of Civil Procedure 24(c), a motion to intervene must be accompanied by a pleading which sets forth the claims and defenses for which intervention is sought. This

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Court must deny intervention based on the FAC because a federal court lacks authority to give opinions on moot questions. Arizonans for Official English v. Arizona, 520 U.S. 43, 87 (1997); Alvarez v. Smith, 558 U.S. 87, 92-94 (2000). Federal courts may act only in the context of a justiciable case or controversy. See Securities and Exchange Comm. v. Medical Committee for Human Rights, 404 U.S. 403, 407 (1972). A case rendered moot during the pendency of the litigation divests a federal court of jurisdiction. Arizonans v. Official English v. Arizona, 520 U.S. at 67 (“an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed”). The FAC, which is the proposed complaint-in-intervention, is moot because the lethal injection protocol challenged in the FAC is the subject of a permanent injunction issued on February 21, 2012. (Order, RJN, Ex. A.) The injunction prohibits any lethal-injection executions until new regulations are enacted in compliance with California’s Administrative Procedure Act

(APA). (Id.) This Court has recognized that California lacks a lethal injection protocol that is valid under state law. (Order, ECF No. 563 at 5:16-17.) California Penal Code section 3604.1, which was enacted through the passage of Proposition 66, exempts execution standards, procedures, and regulations from the APA, and was recently upheld by the California Supreme Court. But, CDCR has not finalized a lethal injection protocol as of this date. The FAC challenges regulations invalidated by a state court judgment that was rendered five years ago, and the claims in that complaint are moot. (Order, RJN, Ex. A.) Accordingly, there is no live case or controversy at present because it is impossible for the Court to provide any effective relief. It cannot enjoin, or declare invalid, an execution procedure that does not exist. Ayala alleges that this Court has found deficiencies with prior injection protocols, however, these alleged deficiencies focus on procedures specific to a three-drug protocol and an alleged inadequacy of execution facilities which no longer exist. (See Order, ECF No. 424 at 4:9-23) (concerns that injection of pancuronium bromide and potassium chloride without adequate anesthesia through the use of sodium thiopental). In fact, this Court noted in 2010 that Plaintiff Brown “would have difficulty proving that Defendants have not made substantial improvements with respect to the physical conditions in which executions are to take place.” (Id. at 5:6-9.)

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And, findings that prior protocols were deficient do not determine whether a revised protocol complies with the Eighth Amendment. See Dickens v. Brewer, 631 F.3d 1139, 1146 (9th Cir. 2011) (inmate must raise issues of fact that he will be improperly anesthetized despite safeguards in the protocol, including those added through amendment). Therefore, the case is moot and Ayala’s motion to intervene must be denied. Any suggestion that Defendants somehow waived the right to challenge the lack of subject matter jurisdiction should be rejected. Subject matter jurisdiction can never be forfeited or waived, and federal courts have a continuing, independent obligation to determine whether subject matter jurisdiction exists. Mashiri v. Dep’t. of Educ., 724 F.3d 1028, 1031 (9th Cir. 2013). Although this Court has rejected prior arguments that this action is moot (Order, ECF No. 586 at 4:8-10), the Court should reexamine this question, particularly in light of the change in the law marked by the decision in Glossip v. Gross, 135 S.Ct. 2726.3 Even if this Court somehow decides that the case is not moot, the motion should be denied because the case is not ripe for review as is explained below.

B. The Issues In The FAC Are Not Ripe For Review. The ripeness doctrine prevents premature adjudication of issues which cause courts to become entangled in abstract disagreements. See Thomas v. Union Carbide Agr. Products Co., 473 U.S. 568, 580 (1985). When there is no genuine threat of imminent prosecution, a case is not ripe for review. See San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996). As noted above, the FAC challenges regulations concerning lethal injection which were found to be invalid under the California Administrative Procedures Act. Additionally, there is no evidence of an active execution warrant concerning Ayala, Plaintiffs, or any other California inmate. Nor is there any claim or evidence that Defendants will execute anyone under the

3 Ayala may also argue in reply that, as long as the Court can grant any effective relief, it does not matter that the relief originally sought is unavailable due to changed circumstances. Church of Scientology of Calif. v. United States, 506 U.S. 9, 12-13 (1992). But effective relief in an Eighth Amendment method-of-execution challenge is defined by the United States Supreme Court in Baze and Glossip. Indeed, even if CDCR adopts a new protocol while this motion is pending, such a changed circumstance cannot justify intervention or a stay of execution because Ayala has not met the pleading standards required to state a method-of-execution claim, nor has he submitted any evidence to show a present-day execution protocol would cause a substantial risk of severe pain when compared to a known and readily available alternative.

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execution regulations that were invalidated five years ago. And Ayala alleges that there is substantial uncertainty as to how and when a new procedure will be adopted. (ECF No. 621 at 10:23-25.) Consequently, the allegations in the FAC that Ayala seeks to join are pled in the abstract and are not ripe for review.

C. Intervenor’s Reliance on the 2006 Memorandum of Intended Decision is Misguided.

In asserting that his request for an injunction is likely to succeed on the merits, Ayala refers to this Court’s December 2006 Memorandum of Intended Decision, in which the Court found that “the demonstrable unreliability of the State’s execution protocol, and Defendants’ failure to correct it, creates a substantial risk of an Eighth Amendment violation.” (ECF No. 621 at 19:19- 24.) However, that 2006 decision dealt with a lethal injection protocol that is no longer in effect, a lethal injection facility that is no longer in use, and an execution team that was disbanded. In addition, at the time the decision was issued, binding precedent held that the Eighth Amendment prohibited only “the unnecessary and wanton infliction of pain” Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion), and procedures that create an “unnecessary risk” that such pain will be inflicted. Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004). That standard was replaced by the pleading and evidentiary standards set forth in Baze and Glossip. See, e.g., Morales v. Cate, 2010 U.S. Dist. LEXIS 101376, *10 (N.D. Cal. Sept. 24, 2010) (“The requirement [in Baze] that an inmate seeking stay of execution show ‘a demonstrated risk of severe pain’ superseded the lesser showing (‘an unnecessary risk of unconstitutional pain’) that had been articulated by the Ninth Circuit in Cooper, 379 F.3d at 1033, and that was binding on this Court at the time that Morales filed the instant action in 2006 and until Baze was decided.”). The Ninth Circuit has recognized that under the law of the case doctrine, a court will generally refuse to reconsider an issue that has already been decided by the same court or a higher court in the same case. See Jeffries v. Wood, 114 F.3d 1484, 1488-89 (9th Cir. 1997) (en banc). But there are exceptions to the doctrine where “(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent

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trial.” Id. at 1489 (footnote omitted) (quoting Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir. 1996)) (internal quotation marks omitted). Given the intervening decisions of Baze and Glossip, Ayala’s reliance on this Court’s December 2006 memorandum is unpersuasive. As explained more fully in Sections II and V, in analyzing whether Ayala is entitled to intervene in this case or an injunction, this Court must apply the standards set forth in Baze and Glossip.

II. THE FAC FILED IN 2010 DOES NOT STATE A CLAIM FOR RELIEF. The Supreme Court has emphasized that “because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’” Glossip, 135 S.Ct. at 2732-33 (quoting Baze, 553 U.S. at 47.) To succeed on an Eighth Amendment method-of-execution claim, a condemned inmate must first establish that a method presents a risk that is “sure or very likely to cause serious illness and needless suffering, and give rise to significantly imminent dangers.” Baze, 553 U.S. at 50 (quotations omitted) (emphasis in original). “[T]here must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.” Id. (quotations omitted). And speculation cannot substitute for evidence that the use of a particular aspect of an execution method is “sure or very likely to cause serious illness and needless suffering.” Brewer v. Landrigan, 562 U.S. 996 (2010), quoting Baze, 553 U.S. at 50 (emphasis in original). Second, the inmate “must identify an alternative that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’” Glossip, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 52). The inmate must do more than “show a slightly or marginally safer alternative.” Id. (quoting Baze, 553 U.S. at 51). Glossip’s “known and available alternative” test in a method-of-execution claim under the Eighth Amendment's prohibition of cruel and unusual punishment requires a prisoner prove that: (1) the State actually has access to an alternative; (2) the State is able to carry out the alternative method of execution relatively easily and reasonably quickly; and (3) the requested alternative would in fact significantly reduce a substantial risk of severe pain relative to the State's intended method of execution. Arthur v.

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Commissioner, Alabama Department of Corrections, 840 F.3d 1268, 1300 (11th Cir. 2016), cert. denied, Case No. 16-602, Feb. 21, 2017, __ S.Ct. ___, 2017 WL 670511. Here the Fourth Amended Complaint Ayala seeks to join lacks such allegations as to a present-day execution protocol, or the manner in which a present-day protocol would be implemented, and Ayala has not provided evidence consistent with these requirements to support a stay. Where a complaint fails to comply with the requirements in Glossip and Baze, it is subject to dismissal.4 The FAC filed in 2010 focuses on the constitutionality of a three-drug protocol which is the subject of a permanent injunction. (Order, ECF No. 563 at 5:16-17.) Ayala has not identified an aspect of an execution protocol in effect that is sure or very likely to cause a condemned inmate to suffer substantial pain. Baze, 553 U.S. at 40. Nor has he identified and pled an alternative that is feasible, readily implemented, and significantly reduces a substantial risk of severe pain as required under Glossip. 135 S.Ct. at 2737; Baze, 553 U.S. at 52. The FAC does not identify specific aspects of a one-drug protocol in effect, or the manner in which such a protocol will be implemented today, or plead specific alternatives to such terms or manner of implementation, or that such alternatives are known and readily available. Even if a three-drug protocol was still in effect, the FAC only uses a scattershot approach to criticize 34 aspects of that prior protocol. (FAC, ECF No. 428 at 37:15-46:27.) It does not identify alternatives, nor allege facts to show any alternatives that are feasible, readily implemented, and will significantly reduce a substantial risk of severe pain. Furthermore, the

FAC does not comply with Glossip because, among other things, it fails to set forth which barbiturate(s) and drug combinations should be used; the recommended dosage(s); how the drug(s) should be administered; whether the State has access to such an unidentified drug, that it will substantially reduce the risk of pain compared to an alternative provision of an execution protocol in effect, or any other details. (FAC, ECF No. 428 at 47:8-19.)

4 See Wood v. Collier, 836 F.3d 534, 541 (5th Cir. 2016); Gissendanger v. Comm’r, Georgia Dept. of Corr., 803 F.3d 565, 568 (11th Cir. 2015); and Brooks v. Warden, 810 F.3d 812, 818-19 (11th Cir. 2016).

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Ayala’s speculation that “any protocol” may not require an execution team to have sufficient training and expertise, or that there is a “risk” an execution team may not follow the terms of a protocol (ECF No. 621 at 18:3-9), coupled with references to a 2006 tentative decision by this Court, fall far short of what a plaintiff is required to plead to state a method-of-execution claim. See Gissendanger v. Comm’r, Georgia Dept. of Corr., 803 F.3d at 568-69 (citing Glossip). Also, this Court has stated that deficiencies noted by this Court many years ago and involving long-defunct or invalidated protocols “extend far beyond the issue of number and type of drugs used and remain a very real concern for any protocol” (ECF No. 620 at 4), leading to the erroneous conclusion that “some specific relief is still obtainable and the case is not moot.” (Id.) But, deficiencies found by the Court years ago regarding a long-defunct protocol do not state a claim. See Dickens v. Brewer, 631 F.3d 1139, 1146 (9th Cir. 2011) (inmate must raise issues of fact that he will be improperly anesthetized despite safeguards in the protocol, including those added through amendment).

III. THE MOTION SHOULD BE DENIED BECAUSE AYALA ADMITS HE DID NOT EXHAUST HIS ADMINISTRATIVE REMEDY.

Ayala incorrectly contends that he is not required to exhaust available administrative remedies. The Prison Litigation Reform Act of 1995 (PLRA), amended 42 U.S.C. § 1997e, requires exhaustion of administrative remedies under all circumstances in § 1983 actions brought by prisoners. Woodford v. Ngo, 548 U.S. 81, 93 (2006). The PLRA’s exhaustion requirement applies to civil rights lawsuits challenging the validity of an execution procedure. Creech v. Reinke, 2012 WL 1995085, * 8-9 (D. Idaho, June 4, 2012). A prisoner-litigant must exhaust CDCR’s administrative grievance process before bringing suit. See Cal. Code Regs. tit. 15, § 3084.1(a); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002). Ayala acknowledges that he had submitted an administrative grievance but does not allege that that he has exhausted the administrative grievance process. (ECF No. 621 at 10:20-22.)

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Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005), cited by Ayala, does not support his contention that he is exempt from the PLRA’s exhaustion requirement. The inmate in that case waited until his execution was scheduled before filing an action under 42 U.S.C. § 1983 challenging an execution protocol. Noting that “whether or not exceptions would exist for circumstances such as these is an unsettled question,” the court excused the inmate’s failure to exhaust. Beardslee v. Woodford, 395 F.3d at 1069 n.5. Beardslee does not hold that the exhaustion requirement is inapplicable to condemned inmates in all circumstances. Because there is no evidence that an execution warrant was issued for Ayala, and an execution protocol is not in place, the decision in Beardslee is factually distinguishable from the present action.

IV. AYALA DOES NOT MEET RULE 24’S REQUIREMENTS FOR INTERVENTION. Ayala is entitled to intervention only if his interests are not adequately represented by the parties to the action. Fed R. Civ. P. 24(a); California ex rel Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006); Fed. R. Civ. P. 24(b). Ayala does not satisfy this standard. The current Plaintiffs are similarly situated condemned inmates.

V. AYALA IS NOT ENTITLED TO A STAY OF EXECUTION. Although the U.S. Supreme Court has held that a death row inmate may challenge the constitutionality of execution methods through a 42 U.S.C. § 1983 action, a stay “is not available as a matter of right,” even where execution is imminent. Hill v. McDonough, 547 U.S. 573, 584 (2006). Rather, “a stay of execution is an equitable remedy,” and “equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Id. Additionally, not only the state, but also the “victims of crime have an important interest in the timely enforcement of a sentence.” Id. The law does not allow for a stay of execution where, as is the case here, a court lacks jurisdiction over the lawsuit in question, the moving party has not stated a claim, or has not submitted any evidence in support of such an injunctive order. Binding Supreme Court case law requires a movant to meet specific pleading requirements, and to submit evidence that proves specific criteria for a stay of execution. Baze v. Rees, 553 U.S. at 61. Merely asking for a stay on the basis that other condemned inmates have received one does not satisfy those requirements,

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nor does it cure the jurisdictional defect detailed above. And the lack of evidence required by the Supreme Court regarding a present-day protocol in effect and any known and readily available alternatives to the same or its manner of implementation, means that Ayala failed meet his burden to obtain a stay of execution. Inmates who challenge the manner in which a state plans to execute them must satisfy all of the requirements for a stay. Hill v. McDonough, 547 U.S. at 584. To obtain an injunctive order such as a stay, a condemned inmate must demonstrate that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm without preliminary relief; (3) the balance of equities tips in his favor; and (4) the injunction is in the public interest. Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012). A stay of execution is an equitable remedy, and equity must be sensitive to the State’s strong interest in enforcing its judgments without undue interference from the federal courts. Hill v. McDonough, 547 U.S. at 584. The burden of proof is on the inmate. See Dickens v. Brewer, 631 F.3d 1139, 1146 (9th Cir. 2011) (inmate must raise issues of fact that he will be improperly anesthetized despite safeguards in the protocol, including those added through amendment); see also Williams v. Kelley, 854 F.3d 998 (8th Cir. 2017); Whitaker v. Livingston, 732 F.3d 465 (5th Cir. 2013). In addition, an inmate challenging an execution protocol cannot establish that he is likely to prevail on the merits, and therefore cannot obtain a stay of execution, unless: (1) the inmate establishes that a state's lethal injection protocol creates a demonstrated risk of severe pain; and (2) establishes that the risk is substantial when compared to the known and available alternatives.

Baze v. Rees, 553 U.S. at 61. As this Court has observed, the decision in Baze creates a significantly higher standard for obtaining a stay of execution in a case challenging lethal injection protocols. (Order, ECF No. 424 at 3:23-25.) Where, as is the case here, a condemned inmate-plaintiff does not submit evidence that establishes he has met the Baze standards for a stay, stays of execution are denied.5 See Landrigan v. Brewer, 625 F.3d 1132 (9th Cir. 2010),

5 Courts in the Ninth Circuit have repeatedly denied requests for a stay of execution for failure to meet the Baze criteria. See West v. Brewer, 652 F.3d 1060, 1061 (9th Cir. 2011); Dickens v. Brewer, 631 F.3d 1139, 1147-50 (9th Cir. 2011); Towery v. Brewer, 672 F.3d 650,

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reversed by Brewer v. Landrigan, 562 U.S. 996 (vacating stay when there was no evidence in the record suggesting that execution drugs at issue that were obtained from foreign sources were unsafe). The Supreme Court has recently reiterated that a district court must make these findings when it grants a stay of execution. See Dunn v. McNabb, ___ S.Ct. ___ 2017, 2017 WL 4698311 (Oct. 19, 2017). Ayala cannot show that he is likely to succeed on the merits because, as previously argued: (1) there is no justiciable case or controversy and it is uncertain when and how an execution protocol may be adopted; (2) this matter is not ripe for review; (3) the FAC fails to identify a known and available alternative that entails a lesser risk of pain as required by Glossip; (4) Ayala has not submitted any evidence in support of his motion for a stay of execution; (5) Ayala states he has not completed efforts to exhaust administrative remedies; (6) Ayala has not identified and proven that an aspect of a present-day execution procedure in effect, or the manner of implementation of a present-day protocol, will cause substantial pain; and (7) Ayala has not, as required by Glossip, identified an alternative to as aspect of a present-day execution protocol in effect or its implementation, and has not proven that an alternative is known, readily available, and would cause substantially less pain in comparison. As a result, he has also failed to show he will suffer irreparable harm without preliminary relief. Capital punishment, including capital punishment by lethal injection, generally is constitutional. See Baze v. Rees, 553 U.S. at 47. Because “[s]ome risk of pain is inherent in any method of execution,” the Eighth Amendment “does not demand the avoidance of all risk of pain in carrying out executions,” particularly where the pain results “by accident or as an inescapable consequence of death.” Id. at 47, 50. Past problems in conducting executions are not conclusive as to whether the protocol will be carried out improperly in the future. See Nooner v. Norris, 594 F.3d 592, 602 (8th Cir. 2010) (prior botched executions did not raise a genuine issue of fact when the revised protocol

658-59 (9th Cir. 2012); Villegas-Lopez v. Brewer, 680 F.3d 1068, 1071 (9th Cir. 2012); Beaty v. Brewer, 791 F. Supp. 2d 678, 682-83 (D. Ariz. 2011), aff’d Beaty v. Brewer, 649 F.3d 1071 (9th Cir. 2011).

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contained safeguards to prevent a recurrence). Similar results occurred in Raby v. Livingston, 600 F.3d 552, 558-61 (5th Cir. 2010) (evidence of prior problems with inserting IVs and monitoring),

Jackson v. Danberg, 594 F.3d 210, 212-13, 220 (3rd Cir. 2010) (evidence that the wrong amounts of chemicals were administered and that personnel did not check equipment and attend training),

Cooey v. Strickland, 589 F.3d 210, 217-18 (6th Cir. 2009) (evidence of prior problems inserting the IV), Clemons v. Crawford, 585 F.3d 1119, 1125, 1128(8th Cir. 2009) (past employment of incompetent medical team personnel), Harbison v. Little, 571 F.3d 531, 537, 539 (6th Cir. 2009) (evidence of hiring personnel with drug and mental health problems, and insufficient training), and Emmett v. Johnson, 532 F.3d 291, 298 (4th Cir. 2008) (evidence of inadequate doses of sodium thiopental and problems with IV lines). All of these decisions were cited with approval by the Ninth Circuit decision in Dickens, 631 F.3d at 1147. Ayala’s request for a stay should also be denied because of “the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill, 547 U.S. at 584. Here, because “the State and the victims of crime have an important interest in the timely enforcement of a sentence,” id., any stay would be contrary to the public’s interest in this case. And the United States Supreme Court has sent a clear, concise message that, absent actual evidence showing something more than speculative harm, the law does not permit a federal district court to enjoin an execution. Brewer v. Landrigan, 562 U.S. 996, 997 (2010).

VI. A STAY OF PREPARATIONS RELATING TO EXECUTIONS IS OVERBROAD. The requested stay extends to “all preparations relating” to the executions of Ayala. (ECF

No. 612 at 16:22-26.) However, under Federal Rule of Civil Procedure 65(d), any injunction or restraining order must state its terms specifically and describe in reasonable detail the act or acts restrained. See Cuviello v. City of Oakland, No. C-06-cv-5517 MHP (EMC), 2009 U.S. Dist. LEXIS 26067 *9 (N.D. Cal. Mar. 19, 2009) (citing S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240-41 (2d Cir. 2001)). The PLRA imposes even more stringent limits, and requires that any prospective relief ordered be “narrowly drawn, extend no further than necessary to correct the violation of the Federal right, and [be] the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). And, principles of federalism and

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separation of powers greatly restrain a federal court’s intrusion into a state’s administration of its own policies, particularly prison operations. See Turner v. Safely, 482 U.S. 78, 84-85 (1987). Like Ayala’s request for a stay of execution, Ayala has not satisfied the requirements to obtain an injunction barring preparations. Ayala is unlikely to succeed on the merits because there is no authority supporting the proposition that preparing for an execution violates the Eighth Amendment, and the Court lacks jurisdiction over this case. Since no execution warrants have been issued, no executions are scheduled, and no execution procedure is in place, Ayala does not face irreparable harm absent a bar on preparations for an execution. Also, preparing to conduct executions furthers the public interest in enforcing judgments, and therefore the equities weigh in favor of Defendants. And since a bar on preparations for executions would prevent an execution from occurring, and thus is in effect itself a stay of execution, this injunctive term should also be denied because the FAC, and Ayala’s lack of evidence, do not meet the requirements of Baze and Glossip, and also suffer from the jurisdictional and other defects detailed above. CONCLUSION Ayala’s motion should be denied because the issues raised in the FAC are moot and not ripe for review, depriving this Court of jurisdiction to hear this matter. Even if the Court finds it appropriate to exercise jurisdiction the FAC fails to state a claim as to a present-day protocol or the manner in which a present-day protocol would be implemented, Ayala admits that he has not exhausted his administrative remedy, and he has not met the requirements of Rule 24. / / / / / / / / /

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The Court should deny the request to issue a stay of execution because, in addition to the above, Ayala has not submitted any evidence in support of a stay, and therefore has not shown he is likely to succeed on the merits of a claim that meets the requirements established by the Supreme Court.

Dated: November 16, 2017 Respectfully submitted,

XAVIER BECERRA Attorney General of California JAY M. GOLDMAN Supervising Deputy Attorney General MICHAEL QUINN Deputy Attorney General

/s/ R. Lawrence Bragg R. LAWRENCE BRAGG Acting Supervising Deputy Attorney General Attorneys for Defendants Brown, Kernan, and Davis SF2007200210

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CERTIFICATE OF SERVICE

Case Name: Michael Angelo Morales v. S. No. C 06-0219 RS Kernan, et al. C 06-0926 RS

I hereby certify that on November 16, 2017, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: DEFENDANTS’ OPPOSITION TO AYALA’S MOTION TO INTERVENE AND FOR STAY OF EXECUTION I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on November 16, 2017, at Sacramento, California.

L. Langlois /s/ L. Langlois Declarant Signature

SF2007200210

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XAVIER BECERRA Attorney General of California JAY M. GOLDMAN Supervising Deputy Attorney General MICHAEL QUINN Deputy Attorney General State Bar No. 209542 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5726 Fax: (415) 703-5799 E-mail: [email protected]

R. LAWRENCE BRAGG Acting Supervising Deputy Attorney General State Bar No. 119194 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-7334 Fax: (916) 324-5205 E-mail: [email protected] Attorneys for Defendants Brown, Kernan, and Davis

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

MICHAEL ANGELO MORALES, et al., C 06-0219 RS Plaintiffs, C 06-0926 RS

v. STATEMENT OF RECENT DECISION

KERNAN, et al., Defendants.

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Defendants notify the Court that on October 9, 2017, the State of California’s Office of Administrative Law issued a “Notice of Disapproval of Regulatory Action” in connection with the proposed regulations to implement the lethal injection process. A copy of the notice of disapproval is attached to this document as Exhibit “A.”

Dated: October 18, 2017 Respectfully Submitted,

XAVIER BECERRA Attorney General of California JAY M. GOLDMAN Supervising Deputy Attorney General R. LAWRENCE BRAGG Acting Supervising Deputy Attorney General

/s/ Michael Quinn MICHAEL J. QUINN Deputy Attorney General Attorneys for Defendants Brown, Kernan, and Davis

SF2007200210 Statement of Recent Decision.docx

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CERTIFICATE OF SERVICE

Case Name: Michael Angelo Morales v. M. Cate, et al. No. C 06-0219 RS

I hereby certify that on October 18, 2017, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: STATEMENT OF RECENT DECISION with Exhibit A I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on October 18, 2017, at San Francisco, California.

G. Garcia /s/ G. Garcia Declarant Signature

SF2007200210 21036186.docx

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

MICHAEL ANGELO MORALES, et al., Case No. 06-cv-0219 RS 06-cv-0926 RS Plaintiffs, DEATH PENALTY CASE v.

1 ORDER GRANTING MOTIONS TO SCOTT KERNAN , Secretary of the INTERVENE AND MOTIONS TO STAY California Department of Corrections and EXECUTIONS Rehabilitation, et. al., Re: Dkt Nos. 594, 602 Defendants.

Fernando Belmontes, Jr., Royal Kenneth Hayes, Richard Delmer Boyer, Ron Deere, Harvey Lee Heishman, Anthony Jack Sully, Albert Cunningham, Douglas Mickey, Hector Ayala, Richard Samayoa, and Raynard Paul Cummings are condemned inmates at San Quentin State

Prison whose direct and collateral attacks on their convictions and sentences have concluded. They move to intervene in the instant actions, which involve challenges to the constitutionality of California’s protocol for executions by lethal injection, and to have their executions stayed pending the conclusion of this litigation. (Doc. Nos. 594, 602.) The Court discussed the relevant issues in detail in a prior order it issued, in which it permitted intervention by and granted stays of execution to three other prisoners who are, for relevant purposes, identically situated to the current

1 Scott Kernan, Secretary of the California Department of Corrections and Rehabilitation, and Ron Davis, Warden of the California State Prison at San Quentin, are substituted as defendants for their predecessors in those positions pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Excerpts of Record - 151 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 606 DktEntry: Filed 04/18/17 15-2, Page Page 144 2 of of 4 297

would-be intervenors. (Doc. No. 563.) The present order therefore contains only a limited discussion of the issues to the extent necessary to resolve the instant motion. When condemned prisoner Michael Angelo Morales initiated this litigation, the Court conditionally denied his request to stay his execution. Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006). Defendants did not execute Morales as scheduled, and a stay of execution issued pursuant to the Court’s conditional order. Discovery and an evidentiary hearing followed, after which the Court concluded that the lethal-injection protocol, as implemented, violated the Eighth Amendment. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006). The Court then acceded to a joint request by Morales and Defendants to refrain from proceeding further with the present litigation until related state-court and administrative processes were completed. Those administrative processes remain active. Following certain state proceedings, Defendants scheduled Albert Greenwood Brown’s execution. Brown moved to intervene and for a stay of execution. Recognizing that “Brown’s federal claims are virtually identical to those asserted by . . . Morales,” (Doc. No. 401 at 1), the Court permitted Brown to intervene, but conditionally denied the stay application. Brown appealed to the Court of Appeals for the Ninth Circuit. Morales v. Cate, 623 F.3d 828, 829 (9th Cir. 2010). On remand, pursuant to guidance from the Ninth Circuit, this Court stayed Brown’s execution. Condemned prisoners Mitchell Carlton Sims and Stevie Lamar Fields subsequently moved to intervene as Plaintiffs in these actions, and requested that their executions be stayed. Significantly, “Defendants acknowledge[d] that the intervenors have a ‘claim or defense that shares with the main action a common question of law or fact,’” (Doc. No. 472 at 2 (quoting Fed.

R. Civ. P. 24(b)(1)(B))), and they did not oppose permitting intervention and staying Sims’s and Fields’s executions. The Court found that “Sims and Fields are similarly situated to Morales and Brown in that they are condemned prisoners whose executions are not otherwise stayed and whose claims in their complaint in intervention are virtually identical to those asserted by Morales and Brown.” (Doc. No. 473 at 1–2.) Accordingly, the Court concluded that “Sims and Fields are entitled to intervene and, like Morales and Brown, to have their executions stayed until the present

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litigation is concluded.” (Id. at 2.) In regards to the next prisoner whose execution was to be scheduled, David A. Raley, the parties jointly stated that,

Raley is similarly situated to Fields, Sims, Morales, and Brown in that he is a condemned prisoner whose execution is not otherwise stayed. He will join in the Fourth Amended Complaint, thereby presenting identical claims to those asserted by Morales and Brown. Accordingly, Raley is entitled to intervene and, like Morales, Brown, Fields, and Sims, to have his execution stayed until the present litigation is concluded.

(Doc. No. 511 at 2.) The parties therefore stipulated and asked the Court to order that,

Raley may intervene as a Plaintiff in this litigation as to the Fourth Amended Complaint, and that all proceedings related to the execution of his sentence of death, including but not limited to preparations for an execution and the setting of an execution date for Mr. Raley, are hereby stayed on the same basis and to the same extent as in the case of Plaintiffs Morales, Brown, Fields, and Sims. (Id. at 2–3.) The Court initially did not act on the stipulation, as it appeared unnecessary to do so. However, when there was no longer a sufficient basis for the Court to continue to defer action, the

Court granted the parties’ joint request, noting that “the parties are correct that Raley is similarly situated to the present Plaintiffs and therefore entitled to intervene and to have his execution stayed.” (Doc. No. 563 at 4.) Tiequon A. Cox and Robert Green Fairbank, Jr., were the next prisoners to move to intervene in the instant actions and to request stays of execution. Even though Defendants did not oppose intervention by and stays of execution for Sims and Fields, and they stipulated to intervention by and a stay of execution for Raley, Defendants opposed Cox’s and Fairbank’s motions. However, as the Court recognized, Cox and Fairbank were, “for purposes of the present litigation, identically situated to Morales, Brown, Sims, and Fields, as well as Raley.” Accordingly, the Court held that Cox and Fairbank were “entitled . . . to intervene and to have their executions stayed until this litigation is concluded.” (Id.) Subsequently, Kevin Cooper, Scott Pinholster and William Payton were allowed to intervene and were issued stays of their executions over Defendants’ objections. (Doc. Nos. 581,

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Good cause appearing therefor, the Court grants Fernando Belmontes, Jr., Royal Kenneth Hayes, Richard Delmer Boyer, Ron Deere, Harvey Lee Heishman, Anthony Jack Sully, Albert Cunningham, Douglas Mickey, Hector Ayala, Richard Samayoa, and Raynard Paul Cummings requests to intervene and to have their executions stayed (Doc. Nos. 594, 602). As is the case for Plaintiffs Michael Angelo Morales, Albert Greenwood Brown, Mitchell Carlton Sims, Stevie Lamar Fields, David A. Raley, Tiequon A. Cox, Robert Green Fairbank Jr., and Kevin Cooper, all proceedings related to the execution of Belmontes, Jr., Hayes, Boyer, Deere, Heishman, Sully, Cunningham, Mickey, Ayala, Samayoa, and Cummings’s sentences of death, including but not limited to preparations for any execution and the setting of an execution date, are hereby stayed until the conclusion of this litigation.

IT IS SO ORDERED.

Dated: April 18, 2017 ______RICHARD SEEBORG United States District Judge

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 Michael Angelo MORALES et al., Case Number 5-6-cv-219-RS-HRL Case Number 5-6-cv-926-RS-HRL 13 Plaintiffs, DEATH-PENALTY CASE 14 v. ORDER GRANTING KEVIN 15 Jeffrey A. BEARD, Secretary of the California COOPER’S MOTION TO Department of Corrections and Rehabilitation, INTERVENE AND TO STAY 16 et al.,1 EXECUTION 17 Defendants. [Doc. No. 564] 18 19 Kevin Cooper is a condemned inmate at San Quentin State Prison whose direct and 20 collateral attacks on his conviction and sentence have concluded. He moves to intervene in the 21 instant actions, which involve challenges to the constitutionality of California’s protocol for 22 executions by lethal injection, and to have his execution stayed pending the conclusion of this 23 litigation. (Doc. No. 564.) The Court discussed the relevant issues in detail in the last order it 24 issued, in which it permitted intervention by and granted stays of execution to three other 25 prisoners who are, for relevant purposes, identically situated to Cooper. (Doc. No. 563.) The 26 27 1 Jeffrey A. Beard is automatically substituted for his predecessor pursuant to Federal 28 Rule of Civil Procedure 25(d).

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1 present order therefore contains only a limited discussion of the issues to the extent necessary to 2 resolve Cooper’s motion. 3 When condemned prisoner Michael Angelo Morales initiated this litigation, the Court 4 conditionally denied his request to stay his execution. Morales v. Hickman, 415 F. Supp. 2d 5 1037 (N.D. Cal. 2006). Defendants did not execute Morales as scheduled, and a stay of 6 execution issued pursuant to the Court’s conditional order. Discovery and an evidentiary 7 hearing followed, after which the Court concluded that the lethal-injection protocol, as 8 implemented, violated the Eighth Amendment. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. 9 Cal. 2006). The Court then acceded to a joint request by Morales and Defendants to refrain from 10 proceeding further with the present litigation until related state-court and administrative 11 processes were completed. 12 Following certain state proceedings, Defendants scheduled Albert Greenwood Brown’s 13 execution. Brown moved to intervene and for a stay of execution. Recognizing that “Brown’s 14 federal claims are virtually identical to those asserted by . . . Morales,” (Doc. No. 401 at 1), the 15 Court permitted Brown to intervene, but conditionally denied the stay application. Brown 16 appealed to the Court of Appeals for the Ninth Circuit. Morales v. Cate, 623 F.3d 828, 829 (9th 17 Cir. 2010). On remand, pursuant to guidance from the Ninth Circuit, this Court stayed Brown’s 18 execution. 19 Condemned prisoners Mitchell Carlton Sims and Stevie Lamar Fields subsequently 20 moved to intervene as Plaintiffs in these actions, and requested that their executions be stayed. 21 Significantly, “Defendants acknowledge[d] that the intervenors have a ‘claim or defense that 22 shares with the main action a common question of law or fact,’” (Doc. No. 472 at 2 (quoting 23 Fed. R. Civ. P. 24(b)(1)(B))), and they did not oppose permitting intervention and staying Sims’s 24 and Fields’s executions. The Court found that “Sims and Fields are similarly situated to Morales 25 and Brown in that they are condemned prisoners whose executions are not otherwise stayed and 26 whose claims in their complaint in intervention are virtually identical to those asserted by 27 Morales and Brown.” (Doc. No. 473 at 1–2.) Accordingly, the Court concluded that “Sims and 28 Fields are entitled to intervene and, like Morales and Brown, to have their executions stayed

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1 until the present litigation is concluded.” (Id. at 2.) 2 In regards to the next prisoner whose execution was to be scheduled, David A. Raley, the 3 parties jointly stated that, 4 Raley is similarly situated to Fields, Sims, Morales, and Brown in that he is a condemned prisoner whose execution is not otherwise 5 stayed. He will join in the Fourth Amended Complaint, thereby presenting identical claims to those asserted by Morales and 6 Brown. Accordingly, Raley is entitled to intervene and, like Morales, Brown, Fields, and Sims, to have his execution stayed 7 until the present litigation is concluded. 8 (Doc. No. 511 at 2.) The parties therefore stipulated and asked the Court to order that, 9 Raley may intervene as a Plaintiff in this litigation as to the Fourth Amended Complaint, and that all proceedings related to the 10 execution of his sentence of death, including but not limited to preparations for an execution and the setting of an execution date 11 for Mr. Raley, are hereby stayed on the same basis and to the same extent as in the case of Plaintiffs Morales, Brown, Fields, and 12 Sims. 13 (Id. at 2–3.) 14 The Court initially did not act on the stipulation, as it appeared unnecessary to do so. 15 However, when there was no longer a sufficient basis for the Court to continue to defer action, 16 the Court granted the parties’ joint request, noting that “the parties are correct that Raley is 17 similarly situated to the present Plaintiffs and therefore entitled to intervene and to have his 18 execution stayed.” (Doc. No. 563 at 4.) 19 Tiequon A. Cox and Robert Green Fairbank Jr. were the next prisoners to move to 20 intervene in the instant actions and to request stays of execution. Even though Defendants did 21 not oppose intervention by and stays of execution for Sims and Fields, and they stipulated to 22 intervention by and a stay of execution for Raley, Defendants opposed Cox’s and Fairbank’s 23 motions. However, as the Court recognized, Cox and Fairbank were, “for purposes of the 24 present litigation, identically situated to Morales, Brown, Sims, and Fields, as well as Raley.” 25 Accordingly, the Court held that Cox and Fairbank were “entitled . . . to intervene and to have 26 their executions stayed until this litigation is concluded.” (Id.) 27 Defendants oppose Cooper’s motion to intervene and for a stay of execution, arguing that 28 the motion is premature and Cooper’s interests are adequately represented by the current

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1 Plaintiffs. (Doc. No. 576.) Defendants raised these same arguments in opposing intervention by 2 and stays of execution for Cox and Fairbank. The Court rejected Defendants’ assertions, noting 3 that “Defendants could have made these arguments in connection with Sims, Fields, and Raley, 4 and there is no explanation for Defendants’ shift to this seemingly inconsistent position. 5 Moreover, the course of the present litigation—particularly in regards to Brown nearly being 6 executed—demonstrates that these arguments are wrong on the merits.” (Doc. No. 563 at 5.) In 7 their current brief, Defendants again make no attempt to explain their shift in position, nor do 8 they make any showing that the Court should reconsider its prior conclusions. 9 For purposes of the present litigation, Cooper is identically situated to Morales, Brown, 10 Sims, Fields, Raley, Cox, and Fairbank. The Court must treat identically situated persons the 11 same. Accordingly, the Court must permit Cooper to intervene and must stay his execution until 12 the present litigation is concluded. 13 * * * 14 Good cause appearing therefor, the Court grants Kevin Cooper’s request to intervene and 15 to have his execution stayed, (Doc. No. 564). As is the case for Plaintiffs Michael Angelo 16 Morales, Albert Greenwood Brown, Mitchell Carlton Sims, Stevie Lamar Fields, David A. 17 Raley, Tiequon A. Cox, and Robert Green Fairbank Jr., all proceedings related to the execution 18 of Cooper’s sentence of death, including but not limited to preparations for an execution and the 19 setting of an execution date, are hereby stayed until the conclusion of this litigation. 20 The hearing on Cooper’s application that is set for July 25, 2013, is vacated. 21 The Clerk shall update the docket to reflect the automatic substitution of Jeffrey A. Beard 22 as the lead Defendant. 23 IT IS SO ORDERED. 24 25 DATED: 6/19/13 ______RICHARD SEEBORG 26 United States District Judge 27 28

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1 David A. Senior (SBN 108579) MCBREEN & SENIOR 2 1900 Avenue of the Stars Eleventh Floor 3 Los Angeles, CA 90067 Phone: (310) 552-5300 4 Fax: (310) 552-1205 [email protected] 5 John R. Grele (SBN 167080) LAW OFFICES OF JOHN R. GRELE 6 149 Natoma Street, Third Floor San Francisco, CA 94105 7 Phone: (415) 348-9300 Fax: (415) 348-0364 8 [email protected] Richard P. Steinken (admitted pro hac vice) 9 JENNER & BLOCK LLP 353 N. Clark Street 10 Chicago, IL 60654-3456 Phone: 312-222-9350 11 Fax: 312-527-0484 [email protected] 12 Attorneys for Plaintiffs 13 ALBERT G. BROWN and MICHAEL A. MORALES 14 See signature page for additional counsel

15 IN THE UNITED STATES DISTRICT COURT 16 FOR THE NORTHERN DISTRICT OF CALIFORNIA

17 MICHAEL ANGELO MORALES, ) CASE NO. C 06 0219 RS ALBERT G. BROWN, ) C 06 0926 RS 18 Plaintiffs, ) v. ) 19 ) JOINT STATEMENT CONTAINING A MATTHEW CATE, Secretary of the ) PROPOSED SCHEDULE OR 20 California ) SCHEDULES 21 Department of Corrections and Rehabilitation, ) et al., ) 22 Defendants. ) ______) 23 PACIFIC NEWS SERVICE, ) ) Plaintiff 24 ) CASE NO. C 06 01793 RS v. )

25 ) MATTHEW CATE, Secretary of the ) 26 California Department of Corrections and ) Rehabilitation, et al., ) 27 Defendants.

28

JOINT STATEMENT CONTAINING A PROPOSED SCHEDULE OR SCHEDULES

Excerpts of Record1 - 165

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1 Pursuant to this Court’s Order dated April 5, 2012, the parties submit this Joint

2 Statement Containing a Proposed Schedule or Schedules, as follows:

3 The November 3, 2011 scheduling order provides that the parties will complete

4 discovery by August 15, 2012, and file a joint statement identifying any material issues of fact

5 that will require an evidentiary hearing by September 15, 2012.

6 THE PARTIES HEREBY STIPULATE that the Court should vacate the current

7 scheduling order and direct the parties to submit a new proposed schedule within 30 days when:

8 (1) viable lethal injection regulations are in place; or (2) the Marin County Superior Court's

9 decision invalidating the regulations is overturned on appellate review, whichever occurs first.

10

11 DATED: July 16, 2012 By: /s/* 12 David A. Senior

McBREEN &SENIOR Floor Floor th 13 Richard P. Steinken 14 JENNER & BLOCK

15 John R. Grele MCBREEN & SENIOR

Telephone: (310) 552-5300 Telephone: (310) LAW OFFICE OF JOHN R. GRELE Los Angeles, California 90067 90067 California Los Angeles, 16

1900 Avenue of the Stars, 11 Stars, the of 1900 Avenue 17 Attorneys for Plaintiffs ALBERT G. BROWN and 18 MICHAEL A. MORALES / / 19 / / 20

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1 DATED: July 16, 2012 By: /s/* Michael Laurence 2 Sara Cohbra HABEAS CORPUS RESOURCE CENTER 3 Attorneys for Plaintiffs 4 MITCHELL SIMS and STEVIE FIELDS

5 DATED: July 16, 2012 By: /s/ * Ajay S. Krishnan 6 KEKER & VAN NEST LLP Attorneys for Plaintiffs 7 PACIFIC NEWS SERVICE

8 DATED: July 16, 2012 By: /s/ Michael J. Quinn 9 MICHAEL J. QUINN Deputy Attorney General 10 Attorneys for Defendants MATTHEW CATE et al 11

12 *GENERAL ORDER 45 ATTESTATION

Floor Floor th Per General Order 45, Section X.B. I hereby attest that the concurrence in the 13 filing of this document has been obtained from all signatories. 14

15 ______/s/______MCBREEN & SENIOR

Telephone: (310) 552-5300 Telephone: (310) MICHAEL J. QUINN Los Angeles, California 90067 90067 California Los Angeles, 16 1900 Avenue of the Stars, 11 Stars, the of 1900 Avenue 17

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CERTIFICATE OF SERVICE

Case Name: Michael Angelo Morales v. M. No. C 06-0219 JF, C06-1793 RS Cate, et al.; Pacific News Service v. M. Cate, et al.

I hereby certify that on July 16, 2012, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: JOINT STATEMENT CONTANING A PROPOSED SCHEDULE OR SCHEDULES I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on July 16, 2012, at San Francisco, California.

D. Criswell s/ D. Criswell Declarant Signature

20625970.doc

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1 KAMALA D. HARRIS Attorney General of California 2 THOMAS S. PATTERSON Supervising Deputy Attorney General 3 MICHAEL J. QUINN Deputy Attorney General 4 State Bar No. 209542 455 Golden Gate Avenue, Suite 11000 5 San Francisco, CA 94102-7004 Telephone: (415) 703-5726 6 Fax: (415) 703-5843 E-mail: [email protected] 7 Attorneys for Defendants Brown, Cate, and Cullen 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 MICHAEL ANGELO MORALES, C 06-0219 JF 14 Plaintiff, ANSWER TO FOURTH AMENDED 15 COMPLAINT v. 16 17 MATTHEW CATE, et al., 18 Defendants.

19 20 21 22 23 24 25 26 27 28

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1 Defendants respond to the fourth amended complaint filed October 8, 2010 in this action 2 with the following admissions, denials, and allegations: 3 NATURE OF ACTION 4 1. Defendants admit that the action is brought under 42 U.S.C. § 1983 and deny each and 5 every remaining allegation in paragraphs 1 through 7 of the fourth amended complaint. 6 JURISDICTION AND VENUE 7 2. Defendants deny that Plaintiffs have a valid cause of action under the Fifth, Eighth, or 8 Fourteenth Amendments, but admit the remaining allegations of paragraphs 8 and 9 of the fourth 9 amended complaint. 10 THE PARTIES 11 3. Defendants admit the allegations of paragraphs 10, 11, and 12 of the fourth amended 12 complaint. 13 4. Defendants deny the allegations of paragraph 13 of the fourth amended complaint. 14 5. Defendants lack sufficient information to formulate a belief as to the truth or falsity of the 15 allegations of paragraph 14 and deny the allegations on that basis. 16 GENERAL ALLEGATIONS 17 6. In response to paragraph 15 of the fourth amended complaint, Defendants incorporate their 18 responses to paragraphs 1 through 14 of the fourth amended complaint. 19 7. Defendants admit the allegations of paragraphs 16 and 17 of the fourth amended complaint. 20 8. Defendants deny the allegations of paragraphs 18 and 19 of the fourth amended complaint. 21 9. Defendants admit the allegations of paragraph 20 of the fourth amended complaint. 22 10. Defendants deny that the details of lethal injections are to be determined solely by the 23 CDCR in that state regulations dictate the details of the execution process. Defendants admit that 24 the relevant state regulations are promulgated by CDCR under the Administrative Procedures 25 Act, and Defendants admit the remainder of the allegations of paragraph 21 of the fourth 26 amended complaint. 27 28 1 Answer to Fourth Am. Compl. (C 06-0219 JF) Excerpts of Record - 170 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 486 FiledDktEntry: 02/03/11 15-2, PagePage 1633 of of11 297

1 11. Defendants admit that plaintiff will be executed by a lethal combination of the drugs as 2 described in paragraph 22 of the fourth amended complaint but deny that the use of pancuronium 3 bromide or potassium chloride in an execution as administered in California is painful. 4 12. Defendants admit that they will follow the protocol established in California Code of 5 Regulations title 15, sections 3349 et seq. in order to execute Plaintiffs, but deny (1) that the 6 regulations are identical to former San Quentin Operational Procedure No. 770, (2) that certain 7 practices not delineated in the protocol will be followed in performing executions by lethal 8 injection, and (3) that the actual practice of a lethal injection execution in California violates any 9 constitutional or statutory provision as alleged in paragraph 23 of the fourth amended complaint. 10 13. Defendants deny the allegations of paragraphs 24, 25 and 26 of the fourth amended 11 complaint. 12 14. Defendants admit the allegations of paragraph 27 of the fourth amended complaint. 13 15. Defendants admit that sodium thiopental was invented in the 1930s, is a short-acting 14 barbiturate that has been used commonly in the induction phase of general anesthesia, and is 15 intended to anesthetize a condemned inmate, but otherwise deny the allegations of paragraph 28 16 of the fourth amended complaint. 17 16. Defendants admit that thiopental is sold in a powdered form and must be mixed into a 18 solution according to the manufacturer’s instructions but deny that all other states use pharmacists 19 or physicians to mix this drug, and otherwise deny the allegations of paragraph 29 of the fourth 20 amended complaint. 21 17. Defendants deny the allegations of paragraphs 30 and 31 of the fourth amended complaint. 22 18. Defendants lack sufficient information to formulate any beliefs relating to the guidelines of 23 the American Veterinary Medical Association (AVMA) and the guidelines regarding the 24 euthanasia of animals, and deny that those guidelines have any application to the lethal-injection 25 execution of a human being, and on these bases deny the allegations of paragraphs 32 and 33 of 26 the third amended complaint. 27 19. Defendants admit the allegations of paragraph 34 of the fourth amended complaint that 28 pancuronium bromide is the second drug administered as part of a lethal-injection execution in 2 Answer to Fourth Am. Compl. (C 06-0219 JF) Excerpts of Record - 171 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 486 FiledDktEntry: 02/03/11 15-2, PagePage 1644 of of11 297

1 California and admit that pancuronium bromide paralyzes the voluntary muscles. Defendants 2 otherwise deny the allegations of paragraph 34, and specifically deny that CDCR has ever 3 tortured anyone as part of a “behavioral modification program” or otherwise. 4 20. Defendants deny the allegations of paragraph 35 of the fourth amended complaint. 5 21. Defendants deny the allegations of paragraph 36 of the fourth amended complaint. 6 22. Defendants deny the allegations of paragraph 37 of the fourth amended complaint. 7 23. Defendants lack sufficient information to formulate a belief as to the truth or falsity of each 8 and every allegation in paragraph 38 of the fourth amended complaint and deny the allegations on 9 that basis. 10 24. Defendants admit the allegations of paragraph 39 of the fourth amended complaint that 11 potassium bromide is the third drug administered as part of a lethal-injection execution in 12 California and admit that potassium bromide will cause cardiac arrest. Defendants otherwise 13 deny the allegations of paragraph 39 of the fourth amended complaint. 14 25. Defendants lack sufficient information to formulate any beliefs relating to the guidelines of 15 the American Veterinary Medical Association (AVMA) and the guidelines regarding the 16 euthanasia of animals, and deny that those guidelines have any application to the lethal-injection 17 execution of a human being, and on these bases deny the allegations of paragraph 40 of the fourth 18 amended complaint. 19 THE DEVELOPMENT OF REGS./OP 770 20 26. The allegations of paragraphs 41 through 84 of the fourth amended complaint are the 21 subject of Defendants’ motion to strike and on that basis are denied. 22 27. Answering paragraph 85 of the fourth amended complaint, Defendants admit that the 23 regulations provide that the infusion team is to, among other things, “[m]ix the Lethal Injection 24 Chemicals in accordance with the manufacturer’s instructions . . .” Defendants also admit that 25 Witness #4 testified that he prepared the drugs “by following the instructions” and obtained a 26 solution that was “yellowish, brownish tan color.” Defendants otherwise deny the allegations in 27 paragraph 85 of the fourth amended complaint. 28 3 Answer to Fourth Am. Compl. (C 06-0219 JF) Excerpts of Record - 172 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 486 FiledDktEntry: 02/03/11 15-2, PagePage 1655 of of11 297

1 28. Answering paragraph 86 of the fourth amended complaint, Defendants admit that training 2 sessions will be conducted by the team leader, and that the regulations do not require that the 3 team leader have participated in an execution or have experience inserting catheters, and 4 preparing or infusing chemicals. Defendants otherwise deny the allegations in paragraph 86 of 5 the fourth amended complaint. 6 29. Answering paragraph 87 of the fourth amended complaint, Defendants admit that the team 7 leader does not have specific training or lesson plans for his position, and that the team leader 8 position does not require prior team membership, execution training, or experience. Defendants 9 otherwise deny the allegations in paragraph 87 of the fourth amended complaint. 10 30. Defendants deny the allegations of paragraph 88 of the fourth amended complaint. 11 31. Answering paragraph 89 of the fourth amended complaint, Defendants admit that the 12 regulations do not provide for medical doctors to perform the task of assessing unconsciousness. 13 Defendants otherwise deny the allegations in paragraph 89 of the fourth amended complaint. 14 32. Answering paragraph 90 of the fourth amended complaint, Defendants admit that the 15 regulations do not contain a provision for a doctor to perform a central line catheterization but 16 deny that Defendants have knowledge that some inmates will require a central line to avoid 17 unsuccessful drug administration, and that central line placement requires extensive medical 18 training. Defendants otherwise deny the allegations in paragraph 90 of the fourth amended 19 complaint. 20 33. Answering paragraph 91 of the fourth amended complaint, Defendants admit that during 21 Plaintiff Brown’s pending execution, Defendants represented that they were able to and could 22 effectively execute him with a single-drug option, and were prepared to do so. Defendants 23 otherwise deny the allegations in paragraph 91 of the fourth amended complaint. 24 34. Defendants lack sufficient information to formulate a belief as to the truth or falsity of the 25 allegations concerning Dr. Mark Dershwitz’s advice to other states in paragraph 92 of the fourth 26 amended complaint and deny the allegations on that basis. Defendants deny the remaining 27 allegations of paragraph 92 of the fourth amended complaint. 28 4 Answer to Fourth Am. Compl. (C 06-0219 JF) Excerpts of Record - 173 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 486 FiledDktEntry: 02/03/11 15-2, PagePage 1666 of of11 297

1 35. The allegations of paragraphs 93 through 96 of the fourth amended complaint are the 2 subject of Defendants’ motion to strike and on that basis are denied. 3 36. Defendants deny that the May 15, 2007 version of Operational Procedure No. 770, or 4 California Code of Regulations title 15 sections 3349 et seq. are substantially similar to the 2003 5 version in all material respects, but otherwise admit the allegations of paragraph 97 of the fourth 6 amended complaint. 7 37. Defendants admit that California Code of Regulations title 15 sections 3349 et seq. do not 8 provide a procedure for obtaining IV access should an inmate have unusable veins, but otherwise 9 deny the allegations of paragraph 98 of the fourth amended complaint. 10 38. Defendants deny the allegations of paragraph 99 of the fourth amended complaint. 11 39. Defendants admit that the dose of anesthetic has been lowered in the May 15, 2007 version 12 of Procedure No. 770, but otherwise deny the allegations of paragraph 100 of the fourth amended 13 complaint. 14 40. Defendants deny the allegations of paragraphs 101 and 102 of the fourth amended 15 complaint. 16 41. Defendants admit that the District Court wrote that there were deficiencies in a March 2006 17 version of OP 770, but otherwise deny the allegations of paragraph 103 of the fourth amended 18 complaint. 19 42. Defendants admit that the former warden at San Quentin admitted in 2007 that he had not 20 read the Court’s memorandum in Morales v. Tilton, but otherwise deny the allegations of 21 paragraph 104 of the fourth amended complaint. 22 DEFICIENCIES IN THE PROCEDURES CREATE A CONTINUED SUBSTANTIAL 23 RISK OF CONSCIOUS AND AGONIZING SUFFERING 24 43. Defendants deny the allegations of paragraphs 105 through 105 mm. of the fourth amended 25 complaint and specifically deny that the lethal-injection procedures contain any “deficiencies” 26 that create a substantial and present risk of severe pain and suffering. 27 / / / 28 / / / 5 Answer to Fourth Am. Compl. (C 06-0219 JF) Excerpts of Record - 174 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 486 FiledDktEntry: 02/03/11 15-2, PagePage 1677 of of11 297

1 FAILURE TO CONSIDER AND ADOPT VIABLE ALTERNATIVES 2 44. Answering paragraph 106 of the fourth amended complaint, Defendants admit that Ohio 3 and Washington employ a method that uses solely thiopental, and that Defendants have 4 represented that they can use a single drug method. Defendants lack sufficient information to 5 formulate a belief as to the truth or falsity of the allegations concerning the practices of 6 veterinarians and their trained assistants in paragraph 106 of the fourth amended complaint and 7 deny the allegations on that basis. Defendants deny the remaining allegations of paragraph 106 of 8 the fourth amended complaint. 9 45. Answering paragraph 107 of the fourth amended complaint, Defendants deny that they have 10 ignored their experts’ advice in retaining the three-drug procedure. Defendants admit the 11 remaining allegations of paragraph 107 of the fourth amended complaint. 12 46. Defendants deny the allegations of paragraphs 108 and 109 of the fourth amended 13 complaint. COUNT I 14 VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT AND TO BE FREE FROM ARBITRARY AND CAPRICIOUS 15 PROCESSES PURSUANT TO THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 16 (42 U.S.C. § 1983) 17 47. In response to paragraph 110 of the fourth amended complaint, Defendants incorporate 18 their responses to paragraphs 1 through 109. 19 48. Defendants deny the allegations of paragraphs 111, 112, 113, and 114 of the fourth 20 amended complaint. 21 49. Defendants lack sufficient information to formulate a belief as to the truth or falsity of the 22 allegations concerning the experiences of other states with similar protocol to other states in 23 paragraph 115 of the fourth amended complaint and deny the allegations on that basis. 24 Defendants deny the remaining allegations of paragraph 115 of the fourth amended complaint and 25 specifically deny that the execution logs suggest or in any way establish that any California 26 inmate did not receive enough sedative prior to the administration of pancuronium bromide. 27 50. Defendants admit that inducing and maintaining a sufficient level of unconsciousness by 28 correctly administering sodium thiopental is indispensible to preventing the wanton infliction of 6 Answer to Fourth Am. Compl. (C 06-0219 JF) Excerpts of Record - 175 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 486 FiledDktEntry: 02/03/11 15-2, PagePage 1688 of of11 297

1 severe pain when the potassium chloride is administered but otherwise deny the allegations of 2 paragraph 116 of the fourth amended complaint. 3 51. Defendants deny the allegations of paragraph 117 of the fourth amended complaint. 4 52. Defendants deny the allegations of paragraph 118 of the fourth amended complaint. 5 53. Defendants lack sufficient information to formulate a belief as to the truth or falsity of the 6 allegations in paragraph 119 of the fourth amended complaint and deny the allegations on that 7 basis. 8 54. Answering paragraph 120 of the fourth amended complaint, Defendants admit that they can 9 conduct executions in a constitutional manner, and allege that they use chemicals that do not 10 cause excruciating pain, but otherwise deny the allegations of paragraph 120 of the fourth 11 amended complaint. 12 55. Defendants deny the allegations of paragraphs 121, 122, 123, 124, and 125 of the fourth 13 amended complaint. 14 56. Answering paragraph 126 of the fourth amended complaint, Defendants deny that readily 15 available alternatives aren’t an issue and that there is no benefit to using a paralytic drug, which 16 stops the inmate’s breathing. Defendants lack sufficient information to formulate a belief as to 17 the truth or falsity of the remainder of the allegations in paragraph 126 and deny the allegations 18 on that basis. 19 57. Defendants deny the allegations of paragraph 127 of the fourth amended complaint. 20 58. Defendants deny the allegations of paragraph 128 of the fourth amended complaint. 21 59. Defendants specifically deny that personnel who lack sufficient training, credentials, 22 certification, experience or proficiency will administer the regulations, and deny that inmates will 23 be inadequately sedated before the administration of pancuronium bromide and potassium 24 chloride. Defendants lack sufficient information to formulate a belief as to the truth or falsity of 25 the other allegations in paragraph 129 of the fourth amended complaint and deny the allegations 26 on that basis. 27 60. Defendants specifically deny that Plaintiffs will suffer unnecessary pain during the 28 administration of the lethal-injection procedure. Defendants lack sufficient information to 7 Answer to Fourth Am. Compl. (C 06-0219 JF) Excerpts of Record - 176 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 486 FiledDktEntry: 02/03/11 15-2, PagePage 1699 of of11 297

1 formulate a belief as to the truth or falsity of the other allegations in paragraph 130 of the fourth 2 amended complaint and deny the allegations on that basis. 3 61. Defendants specifically deny that personnel who lack sufficient training, credentials, 4 certification, experience or proficiency will administer the regulations. Defendants lack sufficient 5 information to formulate a belief as to the truth or falsity of the other allegations in paragraph 131 6 of the fourth amended complaint and deny the allegations on that basis. 7 62. Defendants lack sufficient information to formulate a belief as to the truth or falsity of the 8 allegations in paragraph 132 of the fourth amended complaint, which is incomprehensible, and 9 deny the allegations on that basis. 10 63. Defendants deny the allegations of paragraph 133 of the fourth amended complaint. 11 PRAYER FOR RELIEF 12 64. Defendants deny that Plaintiffs’ rights have been violated and deny that Plaintiffs are 13 entitled to any relief in this suit. Except as expressly admitted above, Defendants deny each and 14 every allegation in the fourth amended complaint. 15 AFFIRMATIVE DEFENSES 16 65. Defendants allege that if they performed any of the acts or omissions alleged in the 17 complaint, at the time of such act or omission they were performing a discretionary function and 18 did not violate clearly established statutory or constitutional rights of which a reasonable person 19 would have known. Defendants therefore assert that they are immune from liability. 20 66. Defendants allege that the relief sought by plaintiffs is barred in whole, or in part, by the 21 Prison Litigation Reform Act. 22 67. This Court lacks subject matter jurisdiction to consider the claims presented by plaintiff in 23 an action brought under the Federal Civil Rights Act because the case is barred by Heck v. 24 Humphrey’s prior-invalidation rule. 512 U.S. 477 (1994). 25 PRAYER FOR RELIEF 26 WHEREFORE, Defendants pray that: 27 1. Judgment be rendered in favor of Defendants and against Plaintiffs; 28 2. Plaintiffs take nothing by the complaint; 8 Answer to Fourth Am. Compl. (C 06-0219 JF) Excerpts of Record - 177 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 486 Filed DktEntry: 02/03/11 15-2, Page 10170 of of 11 297

1 3. Defendants be awarded their costs of suit incurred herein; and 2 4. Defendants be awarded such other and further relief as the Court may deem necessary 3 and proper. 4 Dated: February 3, 2011 Respectfully Submitted, 5 KAMALA D. HARRIS 6 Attorney General of California THOMAS S. PATTERSON 7 Supervising Deputy Attorney General 8 9 /s/ Michael J. Quinn 10 MICHAEL J. QUINN Deputy Attorney General 11 Attorneys for Defendants Brown, Cate, and Cullen 12 SF2007200210 13 40482109.doc

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Answer to Fourth Am. Compl. (C 06-0219 JF) Excerpts of Record - 178 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 486 Filed DktEntry: 02/03/11 15-2, Page 11171 of of 11 297

CERTIFICATE OF SERVICE

Case Name: Michael Angelo Morales v. No. C 06-0219 JF James Tilton, et al.

I hereby certify that on February 3, 2011, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: ANSWER TO FOURTH AMENDED COMPLAINT I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on February 3, 2011, at San Francisco, California.

L. Santos /s/ L. Santos Declarant Signature

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David A. Senior (# 108579) 1 MCBREEN & SENIOR 2 2029 Century Park East, Third Floor Los Angeles, CA 90067 3 Phone: (310) 552-5300 Fax: (310) 552-1205 4 [email protected]

5 John R. Grele (# 167080) LAW OFFICES OF JOHN R. GRELE 6 149 Natoma Street, Third Floor San Francisco, CA 94105 7 Phone: (415) 348-9300 Fax: (415) 348-0364 8 [email protected]

9 Richard P. Steinken (admitted pro hac vice) JENNER & BLOCK LLP 10 353 N. Clark Street Chicago, IL 60654-3456 11 Phone: 312-222-9350 Fax: 312-527-0484 12 [email protected]

13 Attorneys for Plaintiffs 14 MICHAEL A. MORALES and ALBERT G. BROWN 15 IN THE UNITED STATES DISTRICT COURT 16 FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 17 18 MICHAEL ANGELO MORALES, ) CASE NO. C 06 0219 (JF) (RS) ALBERT G. BROWN, ) C 06-0926 (JF) (RS) 19 ) Plaintiffs, ) 20 ) FOURTH AMENDED COMPLAINT FOR 21 v. ) EQUITABLE AND INJUNCTIVE RELIEF ) [42 U.S.C. § 1983] 22 Matthew CATE, Secretary of the California ) Department of Corrections and Rehabilitation, ) 23 et al., ) 24 ______) 25 NATURE OF ACTION 26 27 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened 28 violations of the rights of Plaintiffs to be free from cruel and unusual punishment under the

1 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS Excerpts of Record - 180 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 428 FiledDktEntry: 10/08/10 15-2, PagePage 1732 of of57 297

1 Eighth and Fourteenth Amendments of the United States Constitution and for violations 2 and threatened violations of Plaintiffs‘ rights to be free from arbitrary and capricious

3 protocols and procedures under the Fifth and Fourteenth Amendments to the United States 4 Constitution.. 5 2. Plaintiffs contend that lethal injection, as performed in California, will subject 6 7 them to present demonstrated substantial risks of inflicting tortuous pain and suffering 8 under the Eighth Amendment.

9 3. Plaintiffs additionally contend that Defendants, as a result of their deliberate 10 failure to use medically-approved procedures and properly-trained personnel, have inflicted 11 pain and torture on over 60% of the inmates who they have executed in the past, making it 12 13 certain that a presently existing demonstrated risk exists that they will suffer the same fate 14 unless Defendants adopt and employ a humane and safe execution protocol.

15 4. Plaintiffs further contend that the continued use of the three-drug procedure after 16 already having been found to employ similar, if not identical, procedures in violation of the 17 MCBREEN & SENIOR Eighth Amendment is an intentional and willful disregard of a known and substantial risk Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 of inflicting severe pain and suffering. 20 5. Plaintiffs additionally contend that Defendants‘ continued use of their three-drug

21 procedure when tested, available alternatives exist establishes that the demonstrated risk of 22 severe pain by Defendants‘ process is substantial when compared to the known and 23 available alternatives. Defendants have refused to adopt such alternatives in the face of 24 25 these documented advantages, without any legitimate penological justification for their 26 continued retention of the three-drug protocol. 27 28

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1 6. Plaintiffs further contend that the use of pancuronium bromide, a paralytic agent 2 that acts as a chemical veil over the lethal injection process, disguises the excruciating pain

3 and suffering to which they will be subjected. Plaintiffs also contend that the use of 4 potassium chloride, as administered by the Defendants in the lethal injection process, will 5 subject them to excruciating pain and suffering. 6 7 7. Plaintiffs seek temporary, preliminary, and permanent injunctive relief to prevent 8 the Defendants from executing Plaintiffs by means of lethal injection, as that method of

9 execution is currently preformed in California under the current protocol or any similar 10 protocol. Plaintiffs request that Defendants be restrained from carrying out any executions, 11 and from any preparatory measures to effectuate executions, until such time as this Court 12 13 has ruled that they have eliminated the substantial risk of serious pain and suffering under 14 the Constitution.

15 JURISDICTION AND VENUE 16 8. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 17 MCBREEN & SENIOR § 1343 (civil rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 action arises under the Fifth, Eighth and Fourteenth Amendments to the United States 20 Constitution and under 42 U.S.C. § 1983.

21 9. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that Plaintiffs are currently 22 incarcerated at San Quentin State Prison (―San Quentin‖) in San Quentin, California, 23 located in this District. All executions conducted by the State of California (―State‖) occur 24 25 at San Quentin. The events giving rise to this complaint will occur in this District. 26 27 28

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1 THE PARTIES 2 10. Plaintiffs Albert Brown and Michael Morales are United States citizens and

3 residents of the State. They currently are death-sentenced prisoners under the supervision 4 of the California Department of Corrections and Rehabilitation (CDCR). They are held at 5 San Quentin State Prison, San Quentin, California, 94974. 6 7 11. Defendant Matthew Cade is the Secretary of the CDCR. 8 12. Defendant Vincent Cullen is the Warden of San Quentin State Prison, where the

9 Plaintiffs are incarcerated and where the Plaintiffs‘ executions will occur. 10 13. Defendant Arnold Schwarzenegger is the Governor of the State of California. 11 14. Plaintiffs do not know the true names of Does 1-50 but allege that they have or 12 13 will participate in Plaintiffs‘ executions by virtue of their roles in designing, implementing, 14 and/or carrying out the lethal injection process. When Plaintiffs discover the Doe

15 Defendants‘ true identities, they will amend this complaint accordingly. 16 GENERAL ALLEGATIONS 17 MCBREEN & SENIOR 15. All prior allegations set forth above are re-alleged as if set forth entirely herein. Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 16. On January 6, 2006, the clerk of the Superior Court of Ventura County issued a 20 Notice of Public Session in the case of People v. Morales, No. CR 17960, scheduling a

21 public session on January 18, 2006 for the purpose of the setting of the date of execution of 22 judgment of death of February 21, 2006. On September 2, 2010, the clerk of the Superior 23 Court of Ventura County issued a Notice of Public Session in the case of People v. 24 25 Morales, No. CR 17960, scheduling a public session on September 14, 2010 for the 26 purpose of the setting of the date of execution of judgment of death. 27 28

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1 17. On August 30, 2010, the Superior Court of Riverside County held a Public 2 Session in the case of People v. Brown, No. CR 18104, for the purpose of the setting of the

3 date of execution of judgment of death on September 29, 2010. 4 18. Without conceding that the provisions for exhaustion of administrative remedies 5 are applicable to their claims, Plaintiffs have effectively exhausted all administrative 6 7 remedies for the issues contained in this Complaint to the extent that they were available 8 and have satisfied the Prison Litigation Reform Act‘s exhaustion requirements pursuant to

9 42 U.S.C. § 1997e(a). 10 19. Plaintiffs are not required to exhaust administrative remedies before bringing this 11 claim because resolution of the grievance seeking modification of Regs./OP 770 is not 12 13 possible through the appeal process and exhaustion is futile. See also Beardslee v. 14 Woodford, 395 F.3d 1064, 1069 (9th Cir. 2005).

15 20. Both Plaintiffs‘ executions have been stayed pending resolution of this matter. 16 21. Plaintiffs are death row inmates and the Defendants intend to carry out their 17 MCBREEN & SENIOR execution by means of lethal injection. Under California law, death sentences shall be Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 carried out by ―administration of a lethal gas or by an intravenous injection of a substance 20 or substances in a lethal quantity sufficient to cause death, by standards established under

21 the direction of the Department of Corrections.‖ Cal. Penal Code § 3604(a). The statute 22 prescribes no specific drugs, dosages, drug combinations, or the manner of intravenous line 23 access to be used in the execution process; nor does the statute prescribe any certification, 24 25 training, or licensure required of those who participate in the execution process. All of the 26 details of the execution process are to be determined by the CDCR. 27 28

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1 22. The CDCR has decided to execute Plaintiffs by poisoning them with a lethal 2 combination of three chemical substances: sodium thiopental, an ultra short-acting

3 barbiturate; pancuronium bromide, an excruciatingly painful and tortuous chemical which 4 paralyzes all muscles; and potassium chloride, an excruciatingly painful chemical which 5 activates the nerve fibers lining the prisoner‘s veins and interferes with the heart‘s 6 7 contractions, causing cardiac arrest. 8 23. In performing Plaintiffs‘ executions by lethal injection, the CDCR contends it will

9 follow the protocol established in California Code of Regulations title 15, sections 3349 et 10 seq. (2010), which is nearly identical to San Quentin Operational Procedure No. 770, May 11 15, 2007, (―Regs./OP 770‖), as well as certain practices not delineated in the protocol. The 12 13 protocol and actual practice by which lethal injection executions will be performed under 14 Regs./OP 770 violate constitutional and statutory provisions enacted to prevent cruelty,

15 pain, and torture. It creates a substantial risk that condemned inmates will experience 16 severe pain and suffering during executions. 17 MCBREEN & SENIOR 24. The remote administration of the chemical substances, the absence of Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 standardized procedures for administration of the chemicals, the lack of adequate training, 20 screening and qualifications of the personnel involved in the process, and the combination

21 and amounts of the three particular chemicals used in Regs./OP 770 create a present, grave, 22 substantial and demonstrated risk that Plaintiffs will not be adequately unconscious during 23 the execution process and, as a result, will experience an excruciatingly painful and 24 25 protracted death. Use of similar procedures has resulted in such suffering in over 60 % of 26 the lethal injection executions carried out in California to date. 27 28

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1 25. Regs./OP 770 lacks medically necessary safeguards, thus making it a present 2 certainty that Plaintiffs will suffer a demonstrated risk of unconstitutional pain during the

3 lethal injection process. The protocol identifies no procedures for ensuring that the 4 anesthetic agent is properly flowing into the prisoner after either pancuronium bromide or 5 potassium chloride are administered to avoid the excruciatingly painful effects of either 6 7 drug in the event Plaintiffs regain consciousness, a safeguard required by the Eighth 8 Amendment that is already required in any medical or veterinary procedure after

9 administration of a sedative and before the administration of an excruciatingly painful 10 overdose of a neuromuscular blocking agent, such as pancuronium bromide, or the 11 administration of an excruciatingly painful potassium chloride overdose. 12 13 26. The protocol established in Regs./OP 770 does not require the minimum expertise 14 of the execution team personnel that would be necessary to ensure their proper performance

15 of the tasks in the lethal injection procedure. There are no guidelines or customary 16 procedures upon which these personnel can rely if they are required to exercise their 17 MCBREEN & SENIOR discretion during the process. There is no plan in place if the Plaintiffs require medical Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 assistance during the execution. And, in the event that the procedure described in Regs./OP 20 770 becomes difficult or impossible to accomplish, there is no alternative procedure,

21 personnel or equipment available for obtaining access to Plaintiffs‘ veins, a problem that 22 has occurred in several recent executions. 23 27. Two of the substances used in previous executions and continued in Regs./OP 24 25 770, pancuronium bromide and potassium chloride, will cause excruciating pain or 26 suffering if administered to a condemned inmate who is not sufficiently anesthetized. 27 28

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1 28. The proposed anesthetic agent, sodium thiopental (―thiopental‖) was invented in 2 the early 1930s, and is an ultra short-acting barbiturate currently used only infrequently in

3 clinical settings and in typical surgical doses produces only transient anesthesia. 4 Historically, it was administered only during the preliminary phase of anesthesia 5 administration, and never administered remotely in the manner proposed. In the lethal 6 7 injection process, thiopental is intended to anesthetize the condemned inmate, but if it is 8 not successfully delivered into the condemned inmate‘s blood stream, thiopental will not

9 provide a sufficient sedative effect for the duration of the execution process. Failure to 10 deliver the entire dose of thiopental is a foreseeable occurrence given the inadequacy of the 11 procedures, selection and training as contained in Regs/OP 700 and as demonstrated in 12 13 practice by Defendants. And, as a result of a failed delivery, the condemned inmate will 14 remain conscious or regain consciousness and experience both conscious paralysis and

15 asphyxiation induced by pancuronium bromide and the excruciatingly painful burning 16 induced by potassium chloride as it courses through the prisoner‘s veins, ultimately leading 17 MCBREEN & SENIOR to cardiac arrest. Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 29. Thiopental is sold in powder form and must be mixed into a solution to be 20 injectable. It must be mixed and administered by a qualified individual. To deliver a five-

21 gram dose of thiopental into an inmate‘s vein successfully, the Defendants must prepare a 22 solution that will deliver the dose in the proper concentration, a process that requires 23 mixing multiple vials of thiopental powder with the correct quantity of dilutent, combining 24 25 multiple vials into two larger syringes, and ensuring that the entire amount of properly 26 mixed powder is drawn into the syringes. If this process is not performed accurately, as it

27 has not been in past executions, it will result in an incorrect concentration of thiopental, 28

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1 which will prevent delivery of a reliable dose of anesthetic. Regs./OP 770 as written and 2 in practice does not reasonably assure that the personnel who will mix the thiopental,

3 prepare the syringes, and deliver the drugs have adequate and appropriate training and 4 experience to perform the tasks properly. On information and belief, other states use 5 licensed pharmacists or physicians to mix the drugs, including thiopental, for lethal 6 7 injections. Defendants have ignored the advice of their expert to engage such qualified 8 personnel in this mixing process and have continued the use of unqualified personnel

9 despite repeated inability by such personnel to mix thiopental properly. 10 30. Thiopental is an effervescent drug that, if improperly administered, will not 11 achieve or maintain adequate sedation over time. Regs./OP 770, as written and in practice, 12 13 contains no provision for the proper rate of infusion so as to achieve or maintain adequate 14 anesthetic depth during an execution. As written and in practice, it contains inadequate

15 qualifications, selection, and training for the individuals involved in the infusion. 16 31. There is a present substantial risk that sodium thiopental will be ineffectively 17 MCBREEN & SENIOR delivered, given the inadequacy of the administration procedures and the personnel Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 involved, and as a result will not provide a sufficient sedative effect for the duration of the 20 execution process. This has actually occurred in over 60% of California‘s lethal injections

21 executions, as well as in executions in other states. With this inadequate sedation, 22 Plaintiffs will experience the conscious asphyxiation caused by pancuronium bromide and 23 the excruciatingly painful internal burning sensation and cardiac arrest caused by a 24 25 potassium chloride overdose. 26 32. The American Veterinary Medical Association (AVMA) states that when

27 potassium chloride is used for euthanasia, it is extremely important that the personnel who 28

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1 perform euthanasia are trained and knowledgeable in anesthetic techniques and competent 2 in assessing the anesthetic depth appropriate for potassium chloride administration, a depth

3 at which animals are in a surgical plane of anesthesia characterized by loss of 4 consciousness, loss of reflex muscle response, and loss of response to noxious stimuli. 5 California law requires non-veterinary personnel who perform animal euthanasia to 6 7 undergo strict training by a veterinarian and/or a registered veterinary technician who 8 specializes in anesthesia. California law does not permit non-veterinary personnel to

9 perform euthanasia using potassium chloride or neuromuscular blockers; rather, such 10 personnel are limited to using a lethal overdose of barbiturates such as pentobarbital. 11 Regs./OP 770 does not include comparable protections or require comparable training, and 12 13 thus a procedure under that protocol would be illegal if performed on animals. 14 33. The AVMA also employs a longer-lasting and more stable barbiturate, sodium

15 pentobarbital, for animal euthanasia. The CDCR‘s use of sodium thiopental under 16 Regs./OP 770 knowingly exacerbates the substantial demonstrated present risk of error 17 MCBREEN & SENIOR created by its deficient protocol because sodium thiopental is extremely volatile, short- Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 acting, and sensitive to human error, and because CDCR makes no determination of a 20 suitable level for any particular inmate, despite this being a required procedure for

21 administration of a sedative to all humans and animals for any purpose. 22 34. Pancuronium bromide, the second chemical administered in the lethal injection 23 process, paralyzes muscles, including the diaphragm, but it does not affect consciousness or 24 25 the perception of pain. A similar paralytic agent has been used by CDCR in the past to 26 torture prisoners as part of its behavioral modification programs. Pancuronium bromide,

27 administered by itself as a ―lethal dose,‖ would not result in a quick death; instead, it would 28

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1 cause someone to suffocate to death while still conscious in an agonizing and tortuous 2 death.

3 35. The use of pancuronium bromide as administered under Regs./OP 770 in 4 combination with the initial dose of sodium thiopental, creates a present demonstrated risk 5 of substantial pain because Plaintiffs will become paralyzed while still aware of pain and 6 7 suffering death from suffocation induced by pancuronium bromide and the burning veins 8 and heart failure caused by the administration of the potassium chloride. Pancuronium

9 bromide creates a present significant, present and demonstrated risk that a prisoner will be 10 paralyzed during the injection of an extremely painful drug, aware of this pain, yet be 11 entirely unable to inform the attendants of his condition. Without the use of pancuronium 12 13 bromide, a prisoner would be able to indicate that he was still conscious or had regained 14 consciousness or awareness prior to the administration of potassium chloride. Properly

15 trained and qualified personnel would be able to assess unconsciousness, which CDCR 16 personnel at present cannot and do not do and thus are unable to determine whether an 17 MCBREEN & SENIOR inmate is aware of or feeling pain at the time the pancuronium bromide or the potassium Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 chloride is administered, or if the administration causes the prisoner to become able enough 20 to sense the excruciating pain from pancuronium bromide and, then, potassium chloride.

21 36. When pancuronium bromide is administered after an initial dose of thiopental, as 22 is called for in the protocol for executions by lethal injection and as has been applied in 23 past executions, it creates a substantial and unacceptable risk of serious harm. As such, the 24 25 combination of thiopental and pancuronium bromide creates the unconscionable possibility 26 that a condemned inmate will be placed in a state of ―chemical entombment‖ while he

27 consciously experiences the agony of suffocation, the intense burning from potassium 28

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1 chloride as the chemical courses through his veins, and the substantial pain of having a 2 cardiac arrest.

3 37. Because Regs./OP 770 calls for the potassium chloride to be administered in a 4 lethal dose, the use of pancuronium bromide will serve no purpose in the execution 5 process. It is completely unnecessary in the lethal injection process and will only serve to 6 7 mask any pain or suffering that the Plaintiffs may experience. Rather, the chemical is used 8 to prevent the executioners and witnesses from knowing whether the condemned inmate is

9 inadequately anesthetized. In cases where the thiopental is not successfully delivered to the 10 inmate‘s circulation and/or the condemned inmate is not adequately anesthetized, 11 pancuronium bromide will create the appearance of a serene death while masking the fact 12 13 that the inmate is experiencing conscious paralysis, suffocation, and the agony of cardiac 14 arrest from the administration of potassium chloride. The use of pancuronium bromide is

15 unnecessary to bring about the inmate‘s death. Absent the use of pancuronium bromide, an 16 inmate undergoing execution would be able to indicate that he was still conscious or had 17 MCBREEN & SENIOR regained consciousness prior to the excruciatingly painful lethal dose of potassium Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 chloride. 20 38. Pancuronium bromide could not lawfully be used alone as the fatal agent because

21 causing death by suffocation violates the Eighth Amendment‘s prohibition against cruel 22 and unusual punishment. 23 39. The third and final chemical Defendants intend to administer to Plaintiffs during 24 25 the lethal injection process is potassium chloride, an extremely painful chemical which 26 causes the inmate‘s death by disrupting the heart‘s contractions, ultimately leading to

27 cardiac arrest. It is indisputable and undisputed that an inadequately anesthetized inmate 28

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1 injected with potassium chloride will experience torturous pain. As potassium chloride 2 travels through the bloodstream from the site of injection towards the heart, the chemical

3 activates sensory nerve fibers inside the veins, causing a prolonged and intense burning 4 sensation. In the foreseeable event that the condemned inmate is not adequately 5 anesthetized throughout the execution procedure, the potassium chloride will cause the 6 7 inmate to consciously experience the agonizing pain of this excruciatingly painful chemical 8 coursing through his veins and of cardiac arrest, while being incapable of expressing his

9 suffering due to the paralytic effects of the pancuronium bromide. 10 40. Death by potassium chloride poisoning is viewed as being so inhumane that the 11 AVMA prohibits its use as the sole agent for animal euthanasia. If potassium chloride is to 12 13 be used at all, the AVMA requires the practitioner administering the potassium chloride to 14 have the proper training and knowledge to ensure that the euthanized animal has reached a

15 surgical plane of anesthesia. The appropriate anesthetic depth for the use of a potassium 16 chloride execution is ―characterized by loss of consciousness, loss of reflex muscle 17 MCBREEN & SENIOR response, and loss of response to noxious stimuli.‖ Conversely, the Reg./OP 770 as written Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 and applied lacks even the most basic protections or training regimen—safeguards that 20 California requires for non-veterinary personnel who perform animal euthanasia.

21 Accordingly, the lethal injection procedures intended to be employed on Plaintiffs would 22 be illegal if performed on household pets. 23 THE DEVELOPMENT OF REGS./OP 770 24 25 41. The version of Procedure No. 770, under which Defendants originally intended to 26 execute Plaintiff Morales, and which is contained substantially verbatim in the Regulations,

27 was adopted without any medical research or review to ensure that a prisoner would not 28

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1 suffer a painful death. No member of the medical community was involved in its adoption. 2 The procedure was adopted by the former Warden of San Quentin, Daniel Vasquez, after

3 observing two executions in Texas, without any further input from or consultation with 4 medical personnel. The procedure was not subsequently subjected to any review by 5 medical professionals or other qualified persons to assess if it was an appropriate procedure 6 7 or if it was being administered in a manner that either caused or prevented unnecessary 8 infliction of pain and suffering. In fact, evidence collected from executions conducted

9 under Procedure No. 770 demonstrated that the protocol as administered was not properly 10 sedating executed inmates, as a result of which they were aware of and suffering from pain. 11 Defendants knew this, yet undertook no appropriate review or revisions of their procedures. 12 13 This continued use of the same failed procedures without any adequate safeguards to 14 ensure those failings are not addressed and rectified both as written and in practice itself

15 creates a present substantial risk of severe and unnecessary pain and tortuous death. 16 42. On February 14, 2006, the District Court for the Northern District of California 17 MCBREEN & SENIOR found that Plaintiff had raised ―substantial questions‖ that the 2003 protocol ―creates an Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 undue risk that Plaintiff will suffer excessive pain when he is executed.‖ Morales v. 20 Hickman, 415 F.Supp.2d 1037, 1047 (N.D.Cal. 2006) (Order Denying Conditionally

21 Plaintiff‘s Motion for Preliminary Injunction). The District Court therefore suggested that 22 Defendants ―conduct a thorough review of the lethal-injection protocol, including, inter 23 alia, the manner in which the drugs are injected, the means used to determine when the 24 25 person being executed has lost consciousness, and the quality of contemporaneous records 26 of executions, such as execution logs and electrocardiograms. . . . A proactive approach by 27 28

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1 Defendants would go a long way towards maintaining judicial and public confidence in the 2 integrity and effectiveness of the protocol.‖ Id. at 1046-47.

3 43. In light of the substantial possibility that Plaintiff Morales would suffer 4 excruciating pain as he was executed, the District Court held that Defendants could proceed 5 to execute him only if they implemented one of two proposed modifications of the 6 7 execution procedure. Id. at 1046-48. Defendants could either certify that they would 8 execute Plaintiff Morales using only sodium thiopental or another barbiturate; or procure

9 the assistance of ―qualified individual or individuals‖ to provide ―independent verification‖ 10 that he was in fact unconscious prior to the administration of the pancuronium bromide and 11 potassium chloride. Id. 12 13 44. Defendants determined in February, 2006 that satisfactorily ―qualified 14 individuals‖ would in fact be medical doctors, and in particular board certified

15 anesthesiologists, to allow Defendants to ―ensure that [Plaintiff] [was] unconscious at all 16 times following the administration of sodium thiopental.‖ Nonetheless, Defendants did not 17 MCBREEN & SENIOR go forward with the scheduled 12:01 a.m. execution on February 21, 2006. Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 45. Later that day, Defendants returned to the District Court and advised that they 20 then believed that the most suitable manner to execute Plaintiff was by administering only

21 a single lethal dose of sodium thiopental or other barbiturate, and they sought permission to 22 perform the execution at 7:30 p.m. on February 21, 2006 in this manner. The District 23 Court issued an order allowing the execution to proceed so long as ―sodium thiopental 24 25 [was] injected in the execution chamber directly into the intravenous cannula by a person 26 or persons licensed by the State of California to inject medications intravenously.‖ Order

27 on Defendants‘ Motion to Proceed with Execution, at 3 (Feb. 21, 2006). Defendants 28

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1 initially agreed but then declined to comply with the District Court‘s order, and the 2 execution did not go forward.

3 46. Because Defendants did not comply with the District Court‘s Orders, by the terms 4 of the February 14, 2006 Order, a stay of execution automatically was entered on February 5 21, 2006. See 415 F. Supp. 2d at 1049. 6 7 47. Following the events of February 21, 2006, Defendants modified the execution 8 protocol, and these modifications were incorporated in a new version of Procedure No.

9 770, dated March 6, 2006. According to Defendants, the changes to the protocol were 10 made after consultation with unidentified ―court experts,‖ and in part reflected deviations 11 from the 2003 version of the protocol that had been sanctioned by Defendants but had not 12 13 previously been formally adopted as revisions to the protocol, or recorded in the 14 contemporaneous records of executions. Defendants, however, rejected their own expert‘s

15 recommendation to use a single barbiturate as the sole lethal agent, relying on two blatantly 16 invalid considerations: no other state uses a barbiturate as the sole lethal agent; and the use 17 MCBREEN & SENIOR of pancuronium prevents the ability to determine whether an inmate is inadequately Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 anesthetized. Instead, Defendants followed the direction of Defendant Schwarzenegger 20 that CDCR merely ―tweak‖ the previous versions of OP 770 and provide for less sedative.

21 48. The March 6, 2006 version of Procedure No. 770, as well as Defendants‘ stated 22 intention to follow the new version, was substantially similar to the 2003 version in all 23 material respects relating to the manner in which the chemicals are administered. The 24 25 March 6, 2006 version employed the same three chemicals, injected in the same sequence, 26 and using the same remote administration, but Defendants – after purported consultation

27 with ―experts‖ – determined to use a lower initial dose of sodium thiopental, a lower dose 28

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1 of pancuronium bromide, and a higher dose of potassium chloride. The only material 2 difference between the 2003 version of the protocol and the March 6, 2006 version is that,

3 in addition to an initial bolus dose of 1.5 grams of sodium thiopental, the March 6 version 4 provided that a continuous drip of five grams of sodium thiopental would be started in a 5 second IV line after the initial dose of sodium thiopental is administered. Shortly after the 6 7 drip is started, a saline flush was to be sent through the first IV line and the pancuronium 8 and potassium were to be injected.

9 49. The March 6, 2006 version of Procedure No. 770 utterly failed to address the 10 ―substantial questions‖ raised by Plaintiff, and recognized by the District Court, regarding 11 the significant risk that Plaintiff will suffer excruciating pain during the execution. Among 12 13 other things, the March 6, 2006 version of Procedure No. 770, like the 2003 version, failed 14 to provide any procedure for ensuring that the inmate is in an appropriate surgical plane of

15 anesthesia prior to the administration of the pancuronium bromide and throughout an 16 execution; failed to provide for any training to be given to the injection personnel; failed to 17 MCBREEN & SENIOR require any level of experience or other qualifications for such personnel; failed to ensure Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 that an adequate dose of anesthesia is able to reach the prisoner; and failed to provide 20 procedures for obtaining IV access should the inmate have unusable peripheral veins.

21 Moreover, because the design of the execution chamber remained the same, and the March 22 6, 2006 version of the protocol made no material changes in the equipment used to 23 administer the drugs, it did not alleviate the need to use multiple IV extensions and other 24 25 conditions that have caused the drug administration problems that plagued the previous 26 executions. 27 28

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1 50. The decision to lower the dose of anesthetic was based on the belief of 2 Defendants and their selected expert that the previously used five-gram dose of sodium

3 thiopental rendered inmates ―too unconscious‖ for the potassium chloride to cause death as 4 quickly as it would otherwise. Moreover, by their own admission, Defendants deliberately 5 increased the risk of excessive suffering in order to ensure that executions are carried out as 6 7 quickly as possible. 8 51. Defendants‘ failure to address the substantial questions regarding the significant

9 risk of excruciating pain created by the original version of Procedure No. 770, even after 10 the experience of recent executions wherein inadequate sedation was present, and even 11 after the District Court recognized the seriousness and substantial nature of the risk, 12 13 amounted to conscious disregard of Plaintiffs‘ constitutional right to be free from cruel and 14 unusual punishment. Indeed, on March 6, 2006, after obtaining the advice of, inter alia,

15 Robert Singler, M.D. and at the direction of Andrea Hoch, Legal Affairs Secretary of 16 Governor Arnold Schwarzenegger, Defendants purposefully rendered the execution 17 MCBREEN & SENIOR procedure more dangerous without any rational reason for doing so. Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 52. Defendants‘ creation of the March 6, 2006 version of Procedure No. 770 in the 20 space of a mere thirteen days, without consultation with any members of the medical

21 community or other experts – besides the unnamed ―court experts‖ and/or Robert Singler, 22 M.D. – further evidenced Defendants‘ deliberate disregard of Plaintiff‘s Eighth 23 Amendment rights. 24 25 53. Defendants flagrantly ignored the District Court‘s suggestion that they conduct a 26 ―thorough‖ review of the execution procedures and instead advanced a marginally different

27 version of Procedure No. 770 that simply perpetuated the deficiencies in the previous 28

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1 version and exacerbated the already-significant risk of inadequate anesthesia. Thereafter, 2 the District Court undertook a comprehensive review of the execution protocol, including

3 the composition and training of the execution team, the equipment and apparatus used in 4 executions, the pharmacology and pharmacokinetics of the drugs involved, and the 5 available documentary and anecdotal evidence concerning executions in California, and 6 7 concluded that Defendants‘ Procedure 770 as actually administered in practice violated the 8 Eighth Amendment. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006).

9 54. The District Court based its finding on the entire record; on the largely undisputed 10 evidence presented at the hearing; on Defendants‘ stipulation that injection of the second 11 and third drugs in the three-drug protocol (pancuronium bromide and potassium chloride) 12 13 without adequate anesthesia will cause an unconstitutional level of pain; on the fact that 14 data in Defendants‘ execution logs indicate that sodium thiopental did not have its expected

15 effect or function as expected in at least 64% of lethal-injection executions; and in 16 particular on the testimony of Defendants‘ own medical expert, Dr. Singler, that in at least 17 MCBREEN & SENIOR one execution the inmate likely was awake when the second and third drugs were injected, Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 and that the only reason that the anesthesiologist could not render a definitive opinion was 20 the apparent unreliability of Defendants‘ records. (The District Court thereafter amended

21 this finding, holding that Procedure 770 as implemented in practice through and including 22 the date of the evidentiary hearing in the 2006 Morales litigation created a ―demonstrated 23 risk of severe pain.‖ Order, Sept. 28, 2010.) 24 25 55. On December 15, 2006, the District Court respectfully requested the state 26 undertake a ―meaningful‖ review of its processes, which ―must be undertaken with an

27 openness to the idea of making significant improvements in the ‗infrastructure‘ of 28

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1 executions.‖ Morales v. Tilton, 465 F. Supp. 2d at 983 (emphasis added). In response to 2 the District Court‘s clear directive in this regard, Defendant Governor Schwarzenegger

3 announced via a press release on December 18, 2006, that he was ―committed to doing 4 whatever it takes . . . to ensure that the lethal injection process is constitutional . . . .‖ 5 Response by the Governor‘s Office to the Court‘s Memorandum of Intended Decision 6 7 Dated December 15, 2006, Docket 291, Ex. A. The Governor added that his 8 ―administration will take immediate action to resolve [the] court[‘s] concerns . . . .‖ Id.

9 56. To this end, in late December 2006, Kingston ―Bud‖ Prunty, Undersecretary of 10 CDCR, was appointed to be the lead person to see that the Department addressed the 11 Court‘s concerns. Prunty revised OP 770 which was published on May 15, 2007, and then 12 13 facially was turned into the current execution protocol regulations. Compare Cal. Code 14 Regs. tit. 15, § 3349, et seq. with OP 770, May 15, 2007, Docket No. 318.

15 57. In order to address the State‘s execution implementation shortcomings, Bud 16 Prunty created a ―work group‖ to undertake the review of OP 770. Prunty expressed a 17 MCBREEN & SENIOR belief that using a panel to interview and screen ―work group‖ or committee candidates Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 would be beneficial to insure consistency in screening, to make sure Defendants‘ 20 expectations for selection were met, and to provide the input of more than one person.

21 However, Prunty then disregarded his own principles, and instead, personally handpicked 22 the work group charged with reviewing the protocol – to wit, a homogenous group of five 23 CDCR employees. In doing so, Prunty never considered including any people who were 24 25 not CDCR employees or retirees. As a result, the execution protocol review exercise 26 mimicked the inadequate self-evaluations previously conducted by CDCR‘s execution team

27 regarding its own bona fides. See Morales v. Tilton, 465 F. Supp. 2d at 979. 28

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1 58. Prunty‘s protocol review cadre consisted of Darc Keller, Steve Cambra, Carl 2 Larson, John McAuliffe, and Tony Newland. Keller, the Assistant Secretary for Health

3 Care Services, was fired by CDCR for fraud shortly after Prunty tapped him as ―work 4 group‖ material. Keller‘s termination occurred after the receiver had raised issues that 5 there were some contracts for medical services that were not properly let and other 6 7 conflicts of interest. CDCR Secretary James Tilton personally requested Keller to submit 8 his resignation.

9 59. Tilton and Warden Robert Ayers have verified under oath that John McAuliffe 10 was selected to be on the protocol review team because of his ―medical background,‖ and 11 therefore he ―was responsible for reviewing the drug mixtures used by other states, and 12 13 developing the drug mixture set forth in the revised version of O.P. 770. By contrast, 14 Prunty – who unilaterally selected McAuliffe to be on the protocol revision team, testified

15 that McAuliffe has never done any medical research for OP 770 and that he doesn‘t think 16 the revision team was qualified to do that. 17 MCBREEN & SENIOR 60. Prunty maintained he was largely unsupervised in revising OP 770: he reported to Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 Tilton and Andrea Hoch, the Governor‘s Legal Affairs Advisor, but he didn‘t consult 20 Tilton for permission to do anything and doesn‘t recall what he may have asked Hoch for

21 permission to do. In an effort to avoid reliability and transparency, Prunty made no record 22 of his revision activities, thoughts, considerations, and/or recollections. While he estimates 23 that he attended over 50 meetings regarding the revision of OP 770, he never took a note on 24 25 a single instance. 26 61. Prunty‘s work group was uninformed and similarly unsupervised. Team members

27 were kept in the dark as to the chain of command, and/or who was on the team. It was 28

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1 never explained to McAuliffe who Prunty reported to on this project, and McAuliffe 2 erroneously believed that Denise Dull, Max Lemon, and John McNitt were also on the

3 protocol review team. Prunty does not recall giving specific assignments to anyone in the 4 work group. Indeed, McAuliffe reported to multiple individuals and ―just did it‖ on his 5 own since nobody told him to whom he should report. 6 7 62. McAuliffe reported his findings to either Cambra, Larson, or Prunty, and stated 8 that others providing input in the revision process, including John McNitt, reported to ―any

9 one of‖ the other seven members on the team. 10 63. The initial action plan to revise OP 770 was scheduled with dates as best as they 11 could have estimated at that time, and listed the date of completion for June 30 or July 1, 12 13 2007. Notwithstanding this best estimate of Prunty, ultimately a May 15 completion date 14 was set instead, eliminating 20 percent of the estimated time necessary to complete the

15 project. Prunty claims he does not know who selected the May 15 date or why it was 16 selected. Thereafter, Defendant Governor rebuffed Prunty‘s request for a little bit longer 17 MCBREEN & SENIOR time to do that. As a result, when the deadline was set, Prunty and his work group simply Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 set about making sure he met it, irrespective of the time required to undertake a review and 20 revision of the protocol consistent with the District Court‘s directions.

21 64. The arbitrary selection of a completion date resulted in a substandard review of 22 OP 770, performed without order or context, and rendered much of it meaningless. CDCR 23 Undersecretary and OP 770 revision leader Prunty thought it was important in his 24 25 preparation of OP 770 to witness an execution. However, Prunty did not attend his first 26 execution until August 2007 – months after the protocol was reviewed, analyzed, redrafted, 27 28

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1 and published. Similarly, McAuliffe also had never witnessed the performance of an 2 execution before OP 770 was finalized on May 15.

3 65. The combined execution experience of Prunty and McAuliffe when revising OP 4 770 was nil. To this day, neither Prunty nor McAuliffe has ever observed the 5 administration of the lethal chemicals by the execution team members. When they 6 7 observed the August 2007 execution in Oklahoma, Prunty and McAuliffe were in the 8 witness area, with no ability to see the execution team in a room behind the gurney on

9 which the condemned was confined. They were limited to observing only the inmate 10 tethered to a gurney, and their observations were made through a window from an adjacent 11 room. This is the same observation vantage point that witnesses were afforded in 12 13 California – which allowed California to conceal its Constitutional infirmities for many 14 years. See Morales v. Tilton, 465 F. Supp. 2d at 978-80. Even Prunty‘s Oklahoma

15 execution window peeping was substandard – he didn‘t get to see all the events of that 16 execution from his limited vantage point because his attention was directed intermittently 17 MCBREEN & SENIOR to the condemned‘s brother, who was on the floor nearby after becoming ill from watching Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 the spectacle. 20 66. Former San Quentin Warden Vasquez believes that ―[m]aking a execution seem

21 humane and dignified is up to the people that carry it out. You can‘t legislate it or write it 22 down.‖ Stipulated Fact (―SF‖) 263. McAuliffe agrees in that he would have to be there to 23 see the entire procedure to judge whether an execution was humane. In this regard, the 24 25 utility of California‘s Regs./OP 770 is no better than the written protocols employed by 26 California in the past, and Prunty‘s expedited protocol drafting exercise was largely

27 meaningless. 28

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1 67. Neither Prunty nor McAuliffe made any contemporaneous notes while present at 2 the execution facilities in Virginia, Oklahoma, Indiana, and the federal Board of Prisons in

3 Indiana. In fact, Prunty never recorded any of his recollections regarding these visits. 4 There was ―[n]othing in particular‖ that made an impression on Prunty during his visits to 5 either Virginia or Oklahoma. Prunty neither inquired nor learned whether Indiana, 6 7 Virginia, or Oklahoma ever sought medical expert opinions in designing their lethal 8 injection protocol; he has no knowledge whether Oklahoma, Indiana, or Virginia have ever

9 had an unsuccessful execution procedure; and he never learned of any emergency 10 procedures to be employed in any of these states in the event of a mishap during an 11 execution. Prunty is aware of an emergency procedure to be utilized in Oklahoma in the 12 13 event a stay is issued; however, he did not include this or any similar procedure in 14 Regs./OP 770.

15 68. Prunty does not know what type of execution training takes place in Oklahoma. 16 He has no information regarding the difficulties encountered in Oklahoma during its 17 MCBREEN & SENIOR executions, the reasons for the difficulties, or its attempted solutions to the problems – he Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 simply does not ―recall the specifics . . .‖ While Prunty is aware that Oklahoma‘s 20 executioners believe that the most difficult part of the execution process is always ensuring

21 that there is proper IV access, Prunty is not sure whether he attended that discussion. 22 69. After Prunty and McAuliffe visited execution facilities in Virginia, Oklahoma, 23 Indiana, and at the federal Board of Prisons in Indiana, California did not adopt any 24 25 particular practice from any of those four places into Regs./OP 770. 26 70. Prunty appointed George Sifuentes, the Director of the Office of Facilities

27 Management, to evaluate the existing chamber, and to evaluate possibilities of modifying 28

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1 another building to meet that need. Sifuentes did not visit execution sites in other states, 2 nor attend the work group‘s site check of the San Quentin facilities.

3 71. Sifuentes was involved in overseeing the costs of the new execution chamber. 4 Prunty supervised Sifuentes. Sifuentes fraudulently advised that a new chamber ―could be 5 done as a minor capital outlay project for under $400,000.‖ This was done to avoid 6 7 legislative oversight and to allow CDCR to ―do it quietly‖ – ―low profile.‖ After the 8 Prunty-Sifuentes bid team was replaced by legislative oversight, $800,000 was found to be

9 a more ―reliable and transparent‖ (Morales, 465 F. Supp. 2d at 981) cost for the new 10 chamber. Sifuentes ultimately was disciplined by CDCR for ―a pattern‖of fraudulent 11 government building cost estimates; i.e., it was ―the way he had done business for a while.‖ 12 13 Prunty, however, took no disciplinary action against Sifuentes or anyone else in the Office 14 of Facilities Management.

15 72. Prunty‘s work group was told early on in the process to maintain all 16 documentation for discovery. The entire work group reported to Prunty. Correctional 17 MCBREEN & SENIOR Captain John McNitt, a duly sworn peace officer who was sworn to uphold the law, was a Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 representative from the Office of Facilities Management who worked with Prunty‘s work 20 group. McNitt reported to Cambra, Larson, and McAuliffe that he intended to destroy

21 documents gathered in the course of reviewing OP 770. Neither Cambra, Larson, nor 22 McAuliffe reported this to Prunty, and Prunty never took corrective or disciplinary action 23 against McAuliffe, Cambra, Larson, or McNitt. 24 25 73. While McAuliffe was the point man for the Defendants to undertake its review of 26 the drug mixtures used by other states, and to develop the drug mixture set forth in the

27 revised version of Regs./OP 770, he is wholly unqualified to perform this function. The 28

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1 first time he ever studied or researched thiopental was not until December 2006. 2 McAuliffe blithely explains his lack of knowledge about the effects of protocol drugs,

3 saying, ―I just started this in December.‖ McAuliffe testified that ―1.5 grams [of 4 thiopental] is the optimal dosage for lethal injection based on your expert witnesses, so I 5 took their advice.‖ McAuliffe actually prescribed three grams total of sodium thiopental 6 7 for the protocol, ―1.5 grams in each syringe, two syringes.‖ McAuliffe said that he picked 8 three grams because he ―was looking for a mean‖ of the other states‘ data, a method he

9 chose because of ―basic scientific study.‖ 10 74. McAuliffe had completed his home schooling in execution pharmacology in 90 11 days or less when he issued ―a recommendation‖ to Cambra, Larson, and Prunty in around 12 13 March of 2007 that ―a single drug be used [for the execution protocol] and it be thiopental.‖ 14 Prunty does not remember McAuliffe recommending a one-drug protocol to him. Prunty

15 testified that, McAuliffe has ―never done any [medical] research‖ for OP 770 and that he 16 doesn‘t think the revision team was ―qualified to do that.‖ 17 MCBREEN & SENIOR 75. McAuliffe says he was informed by Prunty that they would be using a ―three-drug Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 protocol in the execution protocol‖ on May 14th, just one day before OP 770 was 20 published. By contrast, Prunty claims this decision was made by Defendant Governor

21 Schwarzenegger, despite the fact that Prunty had only ―talked to Governor Schwarzenegger 22 about OP 770‖ twice. Prunty claims he was informed of this decision ―sometime in late 23 April, early May.‖ Neither story is true, but instead is consistent with past CDCR double 24 25 talk. On January 31, 2007, Denise Dull made contemporaneously prepared notes wherein 26 she reported that the Governor, as early as a few weeks after the Court‘s December 15

27 order (and well before McAuliffe perhaps started, and certainly completed, his self-taught 28

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1 90-day crash course in pharmacology), had instructed Prunty that the ―1 drug protocol is 2 now off the table, stick with 3 drugs.‖

3 76. In this regard, California never undertook a ―meaningful‖ review of the drugs 4 used or delivered ―with an openness to the idea of making significant improvements in the 5 ‗infrastructure‘ of executions.‖ Morales v. Tilton, 465 F. Supp. 2d at 983. 6 7 77. In creating a selection process for the execution team, the goal was to correct the 8 deficiencies of the previous process which was not formalized and ―all verbal or word of

9 mouth.‖ Nothing, however, has changed. CDCR has ―notified some of the employees‖ 10 about the opportunity to apply for membership on the execution team, but even Prunty is 11 ―not sure exactly how the notice was made to them.‖ 12 13 78. Carl Larson was the team member responsible for drafting the protocol that 14 addresses ―selection, recruitment, and retention‖ of the execution team. Regs./OP 770

15 states that the lethal injection team members can come from San Quentin or from other 16 departmental locations. However, Larson testified that ―as long as the warden at San 17 MCBREEN & SENIOR Quentin could get a team that meets that criteria, they‘re going to use San Quentin people,‖ Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 even if there were people ―who were better and brighter and cleaner outside of San 20 Quentin.‖ In this regard, Defendant CDCR has every intention of drawing from the same

21 San Quentin ―old boy‖ network as before, regardless of the quality of the candidate pool. 22 79. While Regs./OP 770 states that team members can have no prior stress claims 23 (Cal. Code Regs. tit. 15, § 3349.1.2(e)(3)), it does not require any psychological tests or 24 25 evaluations of the team members. It does not require screening for any psychiatric 26 diagnosis or review of files that may disclose such a disability. 27 28

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1 80. Prunty acknowledges that employees who have been assigned to any condemned 2 housing unit should be prohibited from being a part of the lethal injection team, in order to

3 provide as much insulation between the employee and the condemned inmate as possible 4 since they may have some feelings about the condemned and it may -- it may impact their 5 ability to do the job that they‘re selected to do. Under the Regs./OP 770, employees who 6 7 have served in the condemned housing unit still are permitted to be on lethal injection 8 teams. See Cal. Code Regs. tit 15, § 3349.1.2(e)(8).

9 81. The execution team selection panel was tasked by Regs./OP 770 with ―[r]eview of 10 all the available candidate‘s performance evaluations,‖ ―[r]eview of the candidate‘s 11 Personnel, Supervisory, and Training files,‖ and ―[r]eview of the candidates [sic] current 12 13 CI&I Report from the California Department of Justice.‖ OP 770 at 8; Cal. Code Regs. tit 14 15, § 3349.1.2(b). Although Prunty believes that a panel is important to ―make sure we

15 meet our expectations for selection,‖ he and the rest of the selection panel disregarded these 16 principles and the screening process of the protocol. While Prunty claims to have reviewed 17 MCBREEN & SENIOR performance evaluations and CI&I reports, he testified that he failed to review supervisory Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 files, training files, and personnel files. 20 82. CDCR‘s failure to follow the revised procedures in the protocol‘s execution team

21 member selection process was best explained by the testimony of McAuliffe, who stated 22 that the team members would be chosen by ―Warden Ayers.‖ 23 83. CDCR‘s execution ―team members almost uniformly have no knowledge of the 24 25 nature or properties of the drugs that are used or the risks or potential problems associated 26 with the procedure.‖ Morales v. Tilton, 465 F. Supp. 2d at 979. Now CDCR has enlisted a

27 person to train execution team members on these subjects who has no knowledge, 28

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1 experience, education, or training on these topics. McAuliffe blithely testified that he is 2 ―not a pharmacist‖ when asked about the ―pharmacological effects of thiopental.‖ He

3 similarly does not ―know the interaction between the use of a benzodiazepine and 4 thiopental‖ – two drugs that he has authorized for administration to the inmate during an 5 execution. OP 770 at 43, 44, 92; Cal. Code Regs. tit. 15, §§ 3349.1.1, 3349.4.3, 6 7 3349.4.4(a)(2)(B) & 3349.4.5. 8 84. McAuliffe‘s testimony in this regard is in stark contrast to the sworn contentions

9 of Defendants who claimed that McAuliffe ―was responsible for . . . developing the drug 10 mixture set forth in the revised version of O.P. 770‖ due to ―his medical background.‖ 11 85. The instruction given in Regs./OP 770 to prepare the sodium thiopental is simply 12 13 to ―[f]ollow the manufacturer‘s directions as stated on the kit to prepare the chemical 14 properly.‖ OP 770, Ex. A, at 43; Cal. Code Regs. tit. 15, § 3349.1.3(c)(3) (―The Infusion

15 Sub-Team shall . . . Mix the Lethal Injection Chemicals in accordance with the 16 manufacturer‘s instructions . . .‖). This is, of course, is what they said they used to do, but 17 MCBREEN & SENIOR the evidence shows they were unable to do. See Morales v. Tilton, 465 F. Supp. 2d 972, Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 979 & n.7 (N.D. Cal. 2006) (―One member of the execution team, a registered nurse who 20 was responsible for mixing and preparing the sodium thiopental at many executions,

21 testified that ‗[w]e don't have training, really.‘‖) Directing unqualified and untrained 22 execution team members to simply follow manufacturer‘s instructions – without more – 23 resulted in the substantial risks from the execution team practices and failures of the past. 24 25 The package states, ―Use reconstituted solution only if it is clear, free from precipitate and 26 is not discolored.‖ SF 34a at 14. Witness #4, who was in Defendants last published

27 version of the infusion team designated with mixing thiopental, claimed that he prepared 28

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1 the drugs ―by following the instructions‖ (SF 34b at 14), yet obtained a mixed Thiopental 2 solution that was a ―yellowish, brownish tan color.‖ SF 34 at 14. At a minimum,

3 professional knowledge and training is required in order to understand and follow the 4 manufacturer‘s directions, and to train others as to how to do so. Even then, professionals 5 can have differences of opinion and make errors which must be sorted out and corrected. 6 7 For example, the State‘s expert pharmacist and anesthesiologist testified that correctly 8 prepared thiopental should be ―basically clear‖ (Doc. 259, Transcript of Proceedings, Sept.

9 28, 2006, Vol. 4, RT 889), and that it should be ―a very pale green‖ (Doc. 260, Transcript 10 of Proceedings, Sept. 29, 2006, Vol. 5, RT 1121), respectively. The training provides no 11 such illumination, and are clearly lacking in this regard. 12 13 86. The training of lethal injection team members will be conducted by people who 14 are untrained themselves and therefore unqualified to instruct others. All training sessions

15 are to be conducted by the team leader, in conjunction with the associate warden in the case 16 of the intravenous team, and with the warden or administrative staff for the general lethal 17 MCBREEN & SENIOR injection team training. However, there are no specific requirements that the team leader Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 has ever participated in an execution or has mastered any specific task such as how to insert 20 catheter, or prepare or infuse the chemicals. See OP 770 at 8; Cal. Code Regs. tit 15, §

21 3349.1.2(f)(1). 22 87. Remarkably, there are no specific training or lesson plans for the team leader. As 23 in the past (see SF 129 at 39-40), the team leader position does not require prior team 24 25 membership, execution training or experience (see OP 770 at 8; Cal. Code Regs. tit. 15, § 26 3349.1.2(a)). With untrained instructors and vague and ambiguous lesson plans, the 27 28

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1 training of the lethal injection team will result in team members who are similarly as 2 unqualified as those of the past.

3 88. CDCR‘s entire post-December 15, 2006 ―‗review of the lethal-injection protocol . 4 . .‘‖ (Morales v. Tilton, 465 F. Supp. 2d 972, 983 (N.D. Cal. 2006) (quoting Morales v. 5 Hickman, 415 F. Supp. 2d 1037, 1046 (N.D. Cal. 2006))) was a ruse, conducted grudgingly 6 7 and in the shadows of fraud, incompetence, and deceit. The decisions made throughout the 8 process of writing of the Regs./OP 770 were made by an unqualified team who failed to

9 communicate with each other or the Defendant Governor and failed to do the necessary 10 research. 11 89. While on February 16, 2006, Defendants unilaterally determined that the most 12 13 ―qualified individuals‖ to ―ensure that [Plaintiff] [was] unconscious at all times following 14 the administration of sodium thiopental‖ would in fact be medical doctors, and in particular

15 board certified anesthesiologists, and in the space of two days did obtain two such medical 16 professionals to attend an execution, Defendants now have reversed field and eliminated 17 MCBREEN & SENIOR physician participation from executions. Defendants‘ Regs./OP 770 do not provide for Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 qualified medical doctors to perform the complex task of assessing unconsciousness, or to 20 perform or monitor any other tasks associated with planning for or conducting executions.

21 The Regs./OP 770 sets forth a demonstrated present unconstitutional risk by requiring that 22 the consciousness assessment be conducted not by someone with relevant medical 23 experience, but rather by a person certified to insert intravenous catheters into peripheral 24 25 veins and to place electrocardiogram leads. Cal. Code Regs. tit. 15, 3349.1.2(f)(4). An 26 assessment conducted under these conditions does not constitute effective monitoring of

27 anesthetic depth, and presently is insufficient to ascertain whether the inmate is placed into, 28

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1 and remains in, a surgical plane of anesthesia. Regs./OP 770 mandate no rank requirement, 2 no relevant experience requirement, no germane consciousness assessment training, and/or

3 no other safeguards which will modify its 64% rate of performing executions with a present 4 demonstrated risk of severe pain. 5 90. Defendants‘ Regs./OP 770 have no provisions for a doctor to perform a central 6 7 line catheterization if necessary, despite Defendants‘ knowledge that some inmates will 8 require a central line to avoid unsuccessful drug administration, and that central line

9 placement requires extensive medical training. 10 91. On February 21, 2006, Defendants unilaterally determined that, because 11 Procedure 770 prevented them from ensuring that inmates will be unconscious at all times 12 13 following the administration of sodium thiopental, a preferred method of execution would 14 be to use only sodium thiopental during Plaintiff's execution. Morales v. Tilton, 465 F.

15 Supp. 2d at 976. During Plaintiff Brown‘s pending execution, Defendants represented that 16 they were able to and could effectively execute him with a single-drug option, and were 17 MCBREEN & SENIOR prepared to do so. Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 92. Subsequent to February 21, 2006, Dr. Mark Dershwitz, one of the medical experts 20 retained by Defendants to defend their protocol in this action and in previous lethal-

21 injection challenges, has advised several states, including those with which Defendants 22 have exchanged execution-related information, and, on information and belief, Defendants 23 as well, that using a single barbiturate as the sole lethal agent would be an easier, less 24 25 complex, and less dangerous means of accomplishing executions. Despite their knowledge 26 of this advice, and despite Defendants‘ endorsement on February 21, 2006, of the single-

27 drug protocol, Defendants failed to give serious consideration to the use of a single-drug 28

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1 protocol, even though they still have no reliable method to ensure that Plaintiff will be 2 unconscious at all times following the administration of sodium thiopental. Instead,

3 Defendants‘ Regs./OP 770 intends to continue to make use of the same complicated three 4 drug protocol involving the use of two drugs which indisputably cause excruciatingly pain 5 when improper sedation occurs. 6 7 93. Before reviewing, evaluating, and/or revising its March 6, 2006 execution 8 Procedure, Defendants decided in January 2007 to build a new execution facility. The

9 design and construction of the new facility was derived from the March 6, 2006 execution 10 Procedure, in that the subsequently announced May 15, 2007 version of OP 770 had not yet 11 been created, reviewed, evaluated, and/or revised. While certain CDCR executives were 12 13 tasked with examining other states‘ execution chambers for enlightenment to purportedly 14 improve CDCR‘s execution facility and/or its use thereof, they did so only after Defendants

15 designed and began construction of CDCR‘s new execution facility. CDCRs‘ review of 16 other execution facilities was a ruse, simply undertaken to provide the District Court with 17 MCBREEN & SENIOR the appearance that Defendants conducted the ―thorough review‖ of the matter that was Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 respectfully suggested by the Court. 20 94. Defendants‘ new execution facility was designed and built without any

21 assessment or evaluation of: the design of other facilities; problems encountered during 22 executions in California and in other states; and/or the particulars of the protocol or 23 execution procedures to be employed, including the public‘s input via the Administrative 24 25 Procedures Act proceedings. 26 95. Defendants fraudulently claimed that the execution chamber could be designed

27 and constructed from discretionary budgeting, that a new execution chamber had been 28

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1 ordered to be built by the District Court, and that the District Court ordered that 2 construction be completed by May 15, 2007. Defendants‘ tactics were an effort to avoid

3 transparency and mandatory state legislative oversight and to obtain a permanent lethal 4 injection facility so as to justify a multi-million dollar expansion of death row at San 5 Quentin. The then CDCR Secretary later claimed he was not advised of this decision to 6 7 build a new chamber, or of the commencement of the construction of this facility. 8 96. On April 13, 2007, when Defendants‘ fraudulent budgeting activities came to

9 light, Defendants backdated a budgeting request to January, 2007, and submitted the same 10 for legislative consideration. On or about April 21, 2007, Defendant Schwarzenegger 11 ordered that the construction be stopped. 12 13 97. The Regs./OP 770 are substantially similar to the 2003 version in all material 14 respects regarding the manner in which the chemicals are administered. The Regs./OP 770

15 employs the same three chemicals, injected in the same sequence, but Defendants 16 determined to use a greater initial dose of sodium thiopental than the March 6, 2006 17 MCBREEN & SENIOR Procedure, but a smaller dose than was used in the 2003 version, a greater dose of Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 pancuronium bromide, and a lower dose of potassium chloride. 20 98. Regs./OP 770 utterly fails to even examine the many ―substantial questions‖

21 raised by Plaintiff Morales, and recognized by the District Court, regarding the significant 22 risk that Plaintiffs will suffer excruciating pain during the execution. Among other things, 23 Regs./OP 770, like its predecessor March 6, 2006 and 2003 versions, fails to provide any 24 25 adequate procedure and personnel for ensuring that the inmate is in an appropriate surgical 26 plane of anesthesia prior to the administration of the pancuronium bromide and remains in

27 a surgical plane of anesthesia for the duration of the execution; fails to provide for any 28

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1 meaningful training to be given to the personnel involved; fails to require any level of 2 relevant experience or other relevant qualifications for such personnel; fails to provide for

3 any mechanism to ensure that an adequate dose of anesthesia is able to reach the prisoner; 4 fails to provide guidelines for detecting and remedying the foreseeable problems that could 5 occur and that have recently caused botched executions in several other states, or to ensure 6 7 that personnel are sufficiently trained and qualified to exercise their judgment in such 8 situations; fails to ensure an appropriate delivery mechanism for any of the three chemicals,

9 and fails to provide procedures for obtaining IV access should the inmate have unusable 10 peripheral veins. 11 99. Indeed, the Regs./OP 770 is even more ill-conceived and deficient than the older 12 13 versions. The additional deficiencies include, but are not limited to, the fact that 14 Defendants determined that much less sodium thiopental should be administered to the

15 inmate than that which was supposed to have been administered to inmates in all past 16 executions, even assuming proper administration by the execution team resulting in the full 17 MCBREEN & SENIOR dose of thiopental reaching the prisoner. This significantly decreased dose of sodium Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 thiopental drastically lowers the margin for error in administering the anesthesia and 20 increases the probability that the inmate will not be placed in an appropriate surgical plane

21 of anesthesia. 22 100. Defendants – in conjunction with the advice of their selected experts – 23 deliberately chose to lower the dose of anesthetic in the belief that the previously used five- 24 25 gram dose of sodium thiopental rendered inmates ―too unconscious‖ for the potassium 26 chloride to cause death as quickly as it would otherwise. Defendants were aware that such

27 a theory was ill-conceived, medically unsound and unsupported by the records in previous 28

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1 executions. Moreover, by their own admission, Defendants deliberately increased the risk 2 of excessive suffering in order to ensure that executions are carried out as quickly as

3 possible. 4 101. Defendants‘ failure to address the substantial questions regarding the significant 5 risk of excruciating pain created by the original version of Procedure No. 770, even after 6 7 Defendants‘ execution logs indicate that sodium thiopental did not have its expected effect 8 or function as expected in 64% of lethal-injection executions pursuant to the protocol , and

9 even after the District Court recognized the seriousness and substantial nature of the risk, 10 amounts to a present substantial risk of a violation of Plaintiffs‘ constitutional right to be 11 free from cruel and unusual punishment. Defendants have flagrantly disregarded their prior 12 13 representations to the District Court that they intended to conduct a careful review, 14 revision, and implementation of their execution procedures. As a result, Defendants

15 substituted a different version of Procedure No. 770 – Regs./OP 770 – that simply 16 perpetuated the deficiencies in the previous version and exacerbates the already present and 17 MCBREEN & SENIOR substantial risk of inadequate anesthesia. Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 102. Defendants have taken no actions to improve any aspect of their lethal injection 20 protocol other than their minimal efforts to address the five examples of deficiencies that

21 were articulated by the District Court in its December 15, 2006 order. However, 22 Defendants have given far too narrow a reading to the District Court‘s order, and far too 23 favorable an assessment of the adequacy of their entire execution protocol and 24 25 performance. The Order makes plain that far broader and meaningful remedial efforts by 26 Defendants were necessary before their proposed execution protocol could pass

27 constitutional muster. 28

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1 103. The District Court stated that ―[t]he evidence shows that the protocol and 2 Defendants‘ implementation of it suffer from a number of critical deficiencies, including . .

3 . .‖ Morales v. Tilton, 465 F. Supp. 2d at 979 (emphasis added). The District Court did not 4 state that there were only five deficiencies, or suggest in any way that the examples given 5 were an exhaustive list of Defendants‘ failures. Defendants‘ failure to read this guidance 6 7 correctly, or at all, before commencing their review of their protocol gravely undermines 8 their claims that a ―thoughtful‖ or ―meaningful‖ review of its processes was ―undertaken

9 with an openness to the idea of making significant improvements in the ‗infrastructure‘ of 10 executions‖ (Morales, 465 F. Supp. 2d at 983(emphasis added)), or that they were in fact 11 ―committed to doing whatever it takes . . . to ensure that the lethal injection process is 12 13 constitutional . . . .‖ Response by the Governor‘s Office to the Court‘s Memorandum of 14 Intended Decision Dated December 15, 2006, Docket 291, Ex. A.

15 104. Indeed, the record since the District Court gave clear notice that ―Defendants‘ 16 implementation of California‘s lethal-injection protocol lacks both reliability and 17 MCBREEN & SENIOR transparency‖ (Morales, 465 F. Supp. 2d at 981) is that Defendants have not even read the Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 order. See, e.g., Order, Sept. 28, 2010 at 4 n.3 (―The person then serving as the warden at 20 San Quentin, who later admitted that he had not read the Court‘s memorandum in Morales

21 v. Tilton, apparently believed that such an order had been made. Findings of S. Public 22 Safety Comm. Informational Hr’g on San Quentin Death Chamber, 2007–08 Sess. (Cal. 23 2007).‖) 24 25 DEFICIENCIES IN THE PROCEDURES CREATE A CONTINUED SUBSTANTIAL RISK OF CONSCIOUS AND AGONIZING SUFFERING 26 27 105. Central features of the Defendants‘ lethal injection procedures create a 28 substantial risk of serious harm in violation of the Eighth Amendment. Defendants

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1 have not improved upon or effectuated any meaningful changes identified as 2 necessary by the District Court. In fact, they have made their procedures worse in 3 many ways. In addition, there is an unconstitutional and present substantial risk that 4 the protocol will not be administered as written. Such deviations create a present 5 6 substantial risk of severe pain due to, for example, improper placement of the IV 7 and/or inadequately administered anesthesia, inadequate mixing of the drugs, 8 insufficient administration of the chemicals, and insufficient monitoring of the 9 10 inmate. This failure to include adequate safeguards, failure to address the known

11 deficiencies in the procedures and the failure to remedy the procedures that has 12 produced unconstitutional executions creates a substantial and present risk of severe 13 14 pain and suffering. The deficiencies include but are not limited to: 15 a. The failure to employ trained medical professionals with a 16 sufficient degree of relevant experience to ensure that intravenous lines are properly 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 placed; that inadequate lines can be identified promptly; that Plaintiffs are Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 adequately anesthetized initially and throughout the procedure; and, to monitor vital 20 signs. 21 b. The continued use of remote administration, which increases 22 23 the risk of failed delivery, already having occurred in past executions, and despite

24 the advice of their own expert that during routine administration of anesthesia, the 25 anesthesiologist stands at the bedside while administering anesthesia and remains 26 27 attending throughout the procedure. This includes the use of intravenous lines in a 28 manner for which they are not designed or used in any clinical practice.

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1 c. The absence of specified medical equipment, employed in 2 other states, to monitor vital signs that would ensure unconsciousness and the 3 absence of qualified personnel, who could use, operate and make findings from this 4 equipment. Previously, Defendants were willing to and able to provide trained 5 6 anesthesiologists with a variety of monitoring equipment available to them that is 7 not specific or required in the procedures. 8 d. The absence of a procedure to revive an inmate should one or 9 10 more chemicals be administered before a last-minute stay.

11 e. The failure to consider or effectuate a change in the chemicals 12 used when the state of the science is that the chemicals designated in the procedures 13 14 are out-dated, irregularly utilized and that safer, well-tested and studied, and more 15 effective chemicals exist to induce and maintain anesthesia, and to rapidly stop the 16 heart. 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 f. The failure to consider any one-drug alternative other than to Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 immediately reject the notion of using one drug. 20 g. The failure to articulate, prepare for, or train under any 21 contingency plan should both intravenous lines fail. 22 23 h. The failure to articulate sufficiently what venous access will

24 be used. Although the Regs./OP 770 refers to the ability to access peripheral veins, 25 the actual access is not so clearly limited. Rather, it is to an ―appropriate vein‖, 26 27 which may include such veins. Thus, it is not clear whether additional venous 28 access is contemplated, such as a percutaneous central line placement which

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1 requires highly trained and experienced medical personnel, or the barbaric cutdown 2 procedure done by unqualified and untrained personnel. 3 i. The failure to provide any requirement for intravenous team 4 members to have any requisite length of experience in inserting intravenous 5 6 catheters, or to have any actual experience inserting intravenous catheters for 7 inmates or any other population, one of the ―most significant‖ safeguards identified 8 by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008). Regs./OP 770 only 9 10 requires experience in ―setting up intravenous lines‖, which is distinguished from

11 actually inserting catheters. The Supreme Court noted that Kentucky had personnel 12 whose daily assignment was inserting intravenous lines in inmates. 13 14 j. The failure to specify the categories of personnel certification 15 deemed qualified to insert intravenous catheters during an execution, another 16 ―significant‖ safeguard identified by the Supreme Court in Baze v. Rees, 553 U.S. 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 35 (2008). Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 k. The failure to require the use of medical personnel who are 20 qualified to insert intravenous catheters under current CDCR rules and regulations, 21 and state law, and the failure to ensure the use of methods of insertion of 22 23 intravenous catheters required by CDCR rules and regulation, and state law. The

24 procedures permit Defendants to use persons who are not permitted to engage in the 25 insertion of intravenous lines at CDCR without additional safeguards not present 26 27 here. The prohibited persons include Licensed Vocational Nurses and some 28 categories of Registered Nurses.

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1 l. The failure to require the approval of and the assignment by 2 the court-appointed receiver, who has sole authority to determine medical personnel 3 assignments, mandated as a remedial measure for decades of medical malpractice in 4 California prisons. 5 6 m. The failure to ensure that CDCR medical personnel are not on 7 the team in any fashion is itself a violation of the Eighth Amendment as CDCR 8 medical care delivery has been found to be in violation of the Eighth Amendment 9 10 because of unnecessary deaths, maimings, and severe medical mistreatment of

11 inmates. 12 n. The failure to include any persons with sufficient experience, 13 14 expertise, or medical competency on the selection panel so as to evaluate the 15 qualifications of medical personnel assigned to the team. 16 o. The failure to provide for any persons with qualifications, 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 training and experience necessary to identify and remedy training errors to oversee Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 the training of team members. 20 p. The exclusion of medical personnel from the regular training 21 of team members. Another ―significant‖ safeguard identified by the Supreme Court 22 23 in Baze v. Rees, 553 U.S. 35 (2008), was the 10 session a year requirement for

24 medical personnel in Kentucky. There is no such requirement in Defendants‘ 25 procedures. 26 27 q. The removal of a recordation requirement that documents 28 who is attending training sessions, which was present for the previous alleged

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1 training, and which established a high rate of absenteeism from training sessions, 2 particularly by the medical personnel. 3 r. The failure to provide evaluation of team member 4 performance during training. The procedure fails to specify the type of training that 5 6 the selected personnel must undergo and the proficiency level that the personnel 7 must reach though that training. 8 s. The failure to provide oversight of training and selection of 9 10 team members and the failure to provide for anyone with adequate medical training

11 or expertise, or qualifications, to perform, oversee or review the training. 12 t. The failure to provide training that includes the setting of 13 14 intravenous lines on volunteers or otherwise practice setting intravenous lines on a 15 live subject, another ―significant‖ safeguard identified by the Supreme Court in 16 Baze v. Rees, 553 U.S. 35 (2008). 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 u. The removal of the Warden, over his objection, from the Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 infusion location where he or she can observe, monitor and direct the lethal injection 20 process, confer with the medical personnel who are monitoring the infusion, and 21 take appropriate action, including ordering use of a backup or halting the execution 22 23 because of infusion errors, as is required.

24 v. The removal of a provision requiring the inspection of the 25 expiration dates on the drugs to ensure that outdated drugs are not used. This has 26 27 resulted in the attempt to set execution dates, including that of Plaintiff Morales, that 28 would have required the use of expired drugs.

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1 w. The failure to provide that the drugs obtained comply with the 2 requirements of the Food and Drug Administration prohibitions on illegal and 3 unapproved substitutes manufactured in foreign locations. 4 x. The failure to provide that the drugs obtained comply with 5 6 use restrictions contained in federal and state laws. 7 y. The Regs./OP 770 permit the same unqualified and 8 incompetent persons to continue mixing thiopental. The execution protocol fails to 9 10 set forth sufficient details regarding the credentials, certification, licensure,

11 experience, or proficiency of the personnel entrusted to prepare the drugs despite 12 their own expert‘s advice that ―[h]opefully, a pharmacist oversees them to make 13 14 sure it was done properly.‖ Preparation of drugs, particularly for intravenous use, is 15 a technical undertaking which requires training in pharmaceutical methods and 16 calculations and which previously supposedly ―qualified‖ persons were unable to 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 effectuate. The protocol‘s failure to require that the execution personnel possess Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 such certification, licensure, or experience, as well as its failure to require and 20 effectuate such training, greatly exacerbates the substantial risk that drugs will be 21 improperly administered and condemned inmates will consciously experience 22 23 excruciating pain during the lethal injection process.

24 z. The failure to ensure that the infusion process does not occur 25 in the dark, as it did previously. 26 27 aa. The failure to follow their own procedures on selection of 28 team members, and for complete transparency in the process.

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1 bb. The failure to follow their own procedures on training of team 2 members, and for complete transparency in the process. This includes the failure to 3 actually train on procedures such as mixing the drugs and putting the correct 4 quantities and concentrations in the syringes. 5 6 cc. The failure to ensure proper infusion of the chemicals. 7 dd. The failure to ensure the adequate selection and training 8 regarding infusion, and ignoring their own expert advice that while ―[s]omeone non- 9 10 medically could do it [inject the drugs],‖ it ―would . . . certainly be ideal to at least

11 have a nurse do that,‖ because ―[t]hey are trained. It's common. They are used to 12 what it feels like to push an IV through a small tube. They are familiar with it.‖ 13 14 ee. Use of a chamber that was designed and built prior to the 15 adoption of any revised procedures and that contains continued remote 16 administration and inadequate sight lines from the infusion room to the execution 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 chamber itself. Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 ff. Elimination of the trained medical observations and 20 documentations of inmates, including respirations, that have existed in all other 21 California protocols. These records were eliminated solely for the purpose of 22 23 disguising any present substantial risks and/or continued errors.

24 gg. The reduction in performance evaluations reviewed in order 25 to qualify as a team member to only the most recent evaluation. A CDCR employee 26 27 with an extensive history of poor performance evaluations could nevertheless be 28 selected for the lethal injection team if he or she garners just one satisfactory

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1 evaluation. Similarly, a brand new employee who had received just one 2 performance evaluation could be selected for the lethal injection team, provided that 3 the evaluation met expectations. 4 hh. The lack of any experience and stated qualifications in 5 6 monitoring intravenous lines for intravenous team members. 7 ii. The failure to provide that the personnel charged with 8 performing the consciousness check are qualified and trained to do so. The 9 10 procedure makes no provision for qualified personnel to monitor the anesthetic

11 depth of the condemned inmate during the execution. Typically, anesthetic care is 12 performed by individuals who have received advanced training in the medical 13 14 subspecialty of anesthesiology, such as physicians who have already completed their 15 residency in the specialty of anesthesiology or nurses who have trained to become 16 Certified Registered Nurse Anesthetists. Yet there is no provision that such persons, 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 or persons even remotely similarly qualified, will be either selected or trained to Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 monitor anesthetic depth, undermining any effort to reasonably ensure that the 20 Plaintiffs are fully anesthetized prior to the administration of the pancuronium 21 bromide and potassium chloride. 22 23 jj. There are no appropriate procedures for assessing whether, or

24 ensuring that, the prisoner is properly and adequately anesthetized prior to the 25 administration of the pancuronium bromide and potassium chloride, as would be 26 27 required in any medical or veterinary procedure after administration of a sedative 28 and before the administration of a neuromuscular blocking agent or a painful

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1 potassium chloride overdose. There is no requirement that the personnel ensure 2 unconsciousness throughout the procedure until the inmate is dead. This is in 3 violation of previous court orders. 4 kk. The failure to include a proper and effective mechanism for 5 6 chain of custody over the chemicals, and for complete transparency in the process. 7 No procedures exist for recording the lot numbers of the drugs not used in 8 executions, rendering them susceptible to diversion by team members. 9 10 ll. The failure to establish procedures for ensuring that the IV

11 lines are flowing throughout the execution. The only procedure identified is a saline 12 drip, which is turned off prior to the beginning of the administration of the 13 14 chemicals. In the past executions, that mechanism has not been sufficient and has 15 not been adequately monitored by qualified and trained personnel. 16 mm. The procedure also does not adequately ensure appropriate 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 monitoring of either the lethal injection apparatuses or the condemned inmate by Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 qualified and properly trained personnel. It does not make appropriate provision for 20 what the team member inside the chamber will be monitoring. Because of the lack 21 of sufficient qualifications, inadequate training and insufficient direction, the 22 23 procedure to be employed is exactly like that previously employed, with the same

24 unqualified persons permitted to undertake this effort who demonstrated a complete 25 inability to properly discern or describe any difficulties that may arise with regards 26 27 to the delivery of the chemicals. 28

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1 FAILURE TO CONSIDER AND ADOPT VIABLE ALTERNATIVES

2 106. Defendants have repeatedly and deliberately ignored much more viable, safe and 3 effective alternatives to the three-drug lethal injection procedure that have been ―tried and 4 tested.‖ The demonstrated risk of severe pain created by Defendants‘ process is substantial 5 when compared to the known and available alternatives. Veternarians have eliminated the 6 7 use of pancuronium and potassium chloride in euthanasia of animals, and have substituted

8 painless chemicals. Other and more stable barbiturates and drug combinations that do not 9 utilize either a paralytic or a pain-inducing chemical to stop heart activity are available and 10 are regularly used to euthanize animals by veterinarians and their trained assistants. Many 11 states have adopted procedures that in fact employ physicians and/or highly qualified 12 13 personnel in critical steps in the process such as securing intravenous access, mixing and

14 administering the drugs, and monitoring the inmate. The Regs./OP 770 fail to mandate 15 these current best practices, despite the fact that Defendants previously were able to secure 16 physician services on very short notice whom they could not use solely because of their 17 MCBREEN & SENIOR

Telephone: (310) 552-5300 own misconduct. Moreover, Ohio and Washington employ a method that uses solely

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 thiopental, thereby avoiding the dangerous and tortuous paralytic pancuronium, and

20 excruciatingly painful potassium chloride. Defendants themselves have twice represented 21 they are able to and can effectively execute using physicians and/or a single drug method. 22 107. Defendants have ignored their own experts‘ advice in retaining the three-drug 23 procedure. Dr. Singler advised them that it would be equally viable to use a single-drug 24 25 procedure and at one time referred to the application of other drugs as the ―cosmetic‖

26 portion of the process. Dr. Dershwitz has advocated this procedure. The analyst employed 27 28

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1 by Defendant CDCR to research and revise the procedure in light of the Court‘s 2006 2 Memorandum of Intended Decision recommended a thiopental-only procedure.

3 108. The three-drug procedure without trained physicians was retained pursuant to a 4 directive from Defendant Schwarzenegger, before any assessment could be done – or was 5 done – by the other Defendants. It was retained because the Defendants‘ lengthy history of 6 7 mishaps in the lethal injection process required application of a paralytic so that such 8 mishaps were not easily discernable, and potassium chloride to ensure death because

9 thiopental was being insufficiently administered. Its retention by Defendants with a long 10 history of inability and unwillingness to properly administer their lethal injection 11 procedures, and continued failure to address known deficiencies, creates a present 12 13 substantial risk that condemned inmates will experience severe pain and suffering during 14 executions.

15 109. The proffered alternatives effectively mollify the substantial risk of serious harm 16 contained in the procedures that California seeks to employ. They are feasible, readily 17 MCBREEN & SENIOR implemented and they significantly reduce the substantial risk of severe pain. The Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 comparative efficacy of a one-drug method of execution is well established such that 20 Defendants‘ failure to adopt it constitutes a violation of the Eighth Amendment.

21 Defendants have refused to adopt such alternatives in the face of these documented 22 advantages, without any legitimate penological justification for their continued retention of 23 the three-drug protocol. Their refusal to change their method, particularly in light of the 24 25 established Eighth Amendment violation, is cruel and unusual under the Eighth 26 Amendment.

27 28

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1 COUNT I 2 VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT AND TO BE FREE FROM ARBITRARY AND CAPRICIOUS 3 PROCESSES PURSUANT TO THE FIFTH, EIGHTH, AND FOURTEENTH 4 AMENDMENTS TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983) 5 110. Plaintiff realleges and incorporates by reference the allegations contained in 6 7 paragraphs 1 through 109. 8 111. Defendants are acting under color of California law in subjecting Plaintiffs to an

9 arbitrary and capricious method of execution causing to be administered to Plaintiffs 10 chemicals that will cause a wanton exposure to objectively intolerable, present, and 11 substantial risk of inflicting unconstitutional severe, excruciating, and prolonged pain in the 12 13 execution of a sentence of death, and by designing and continuing to administer a process 14 under which they will inject Plaintiffs with chemicals in amounts, combinations, and by a

15 procedure that will cause a wanton exposure to objectively intolerable, present, and 16 substantial risk of conscious suffering and extreme pain in the execution of a sentence of 17 MCBREEN & SENIOR death, thereby depriving Plaintiffs of their rights under the Fifth, Eighth, and Fourteenth Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 Amendments to the United States Constitution to be free from cruel and unusual 20 punishment and to be free from arbitrary and capricious procedures, in violation of 42

21 U.S.C. § 1983. 22 112. Regs./OP 770, which specifies the State‘s lethal injection protocol, and the 23 Defendants‘ actual practice of implementing the protocol violates Plaintiffs‘ rights under 24 25 the cruel and unusual punishment clause of the Eighth Amendment because (a) the protocol 26 creates a present and substantial risk of excruciating physical and psychological pain; (b) 27 28

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1 the protocol does not comport with contemporary norms and standards of society; and (c) 2 the protocol offends the dignity of the person and society.

3 113. Regs./OP 770 requires utilization of three dangerous chemicals but does not 4 ensure that the personnel entrusted with the lethal injection procedure possess the proper 5 and necessary training, experience, or expertise to administer those drugs. Moreover, the 6 7 protocol fails to provide specific guidelines for the administration of the three separate 8 chemicals, which is an essential requirement for their proper administration.

9 114. Regs./OP 770 contains little or no description of the training, credentials, 10 certifications, experience, or proficiency required of any personnel involved in the 11 administration of the lethal injection procedure, notwithstanding the fact that it is a 12 13 complex medical procedure requiring a great deal of expertise in order to be performed 14 correctly. Regs./OP 770 does not require at the execution the presence of any personnel

15 who possess sufficient expertise to insert an intravenous line properly in all situations, 16 determine if there is a blockage in the intravenous line, or evaluate whether a prisoner is 17 MCBREEN & SENIOR properly sedated before and after proceeding with the unconstitutionally painful parts of the Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 execution process. Nor is it Defendants‘ actual practice to require the participation of such 20 personnel.

21 115. The absence of such trained personnel creates a present and substantial risk that a 22 prisoner would not receive the necessary amount of anesthetic prior to being paralyzed by 23 the pancuronium bromide and then experience the severe unconstitutional pain of the 24 25 potassium chloride. The execution logs of California prisoners, and the recent experiences 26 in other states which utilize similar protocols, establish that many executed prisoners did

27 not receive enough sedative prior to the administration of pancuronium bromide. 28

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1 Moreover, toxicology reports from prisoners executed by other states suggest that some 2 prisoners likely remained conscious during the administration of lethal drugs, which could

3 have occurred because of improper insertion of the intravenous line, an unrecognized 4 blockage in the line, or various other reasons. The factors contributing to the likelihood 5 that prisoners in other states were executed while conscious are present in Regs./OP770 6 7 and the actual practice of CDCR in implementing it. 8 116. Inducing and maintaining a sufficient level of unconsciousness by correctly

9 administering sodium thiopental is indispensable to preventing the wanton infliction of 10 severe pain when the potassium chloride overdose is administered. Regs./OP 770, 11 however, does nothing to ensure such a level of unconsciousness. Nor does the protocol 12 13 provide guidelines for ensuring that an inmate is deeply anesthetized prior to injecting the 14 second two drugs, or establish procedures for determining if or when an additional dose of

15 sodium thiopental should be administered, and/or what to do in the event an inmate 16 becomes conscious during the administration of the second or third drugs. 17 MCBREEN & SENIOR 117. Defendants‘ decision to reject their own experts‘ opinion that a single sedative Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 should be employed, and their decision to maintain the remote administration of the three 20 drugs without anesthetic monitoring despite evidence that such administration was not

21 effectively sedating inmates, and Defendants‘ blind adherence to a procedure that lacks 22 necessary medical safeguards and personnel, despite evidence that such a process has 23 resulted in a substantial and unnecessary risk of undue pain and suffering in past executions 24 25 and in the executions undertaken by other jurisdictions, constitutes a deliberate decision to 26 disregard the present and substantial risk of undue pain and suffering in the procedure as

27 outlined and as employed. 28

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1 118. The CDCR‘s lethal injection protocol and practices fail to address any reasonably 2 foreseeable complications with any appropriate medical response, such as difficulty

3 obtaining access to a peripheral vein, or damage to such veins as a result of repeated failed 4 attempts to insert the catheter. Moreover, the protocol and practices include no safeguards 5 that would protect the prisoner in the event a stay of execution is entered or a reprieve 6 7 granted immediately before or after the lethal injection process has begun. Thus, the 8 protocol and actual practices fail to provide any protections to prevent a prisoner from

9 being wrongly executed should a reprieve or stay be granted after the process has begun but 10 before death has occurred. 11 119. At any time before the potassium chloride is administered, the prisoner could be 12 13 readily resuscitated if trained personnel and routine resuscitation medication and equipment 14 were present at the execution site. Even after the potassium chloride is administered,

15 resuscitation would still be possible, although admittedly it would be more challenging. 16 Any resuscitation, however, would require the close proximity of the necessary equipment, 17 MCBREEN & SENIOR medication, and properly trained personnel. The omission of such personnel and Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 equipment under the protocol set forth in the Regs./OP 770 further undermines the 20 constitutionality of the procedure.

21 120. Although it is possible to conduct executions in a constitutionally compliant 22 manner, the Defendants have deliberately chosen not to do so. The CDCR could choose to 23 use different chemicals that do not cause excruciating pain and therefore do not carry 24 25 extraordinarily grave and present consequences to a condemned inmate if not properly 26 administered, as all veterinary euthanasia does. Instead, the CDCR has knowingly and

27 recklessly chosen to use chemicals that will subject the inmate to excruciating pain in the 28

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1 likely event of administration error. Moreover, it has not taken precautions to ensure that 2 the personnel who are involved in the process, including the preparation and administration

3 of the lethal injection chemicals, possess the training, experience, and expertise needed to 4 administer those chemicals properly. Thus, while it is possible for the CDCR to choose 5 different lethal injection chemicals and/or retain qualified personnel to administer its 6 7 chosen chemicals in order to ensure the constitutionality of its lethal injection procedure, 8 the CDCR purposefully has not done so.

9 121. Feasible, readily implemented alternative procedures exist that would 10 significantlyreduce the substantial risk of excruciating pain created by the ADC‘s deficient 11 protocol. These alternative procedures include, but are not limited to, a protocol that 12 13 remedies the deficiencies set forth herein. 14 122. These numerous deficiencies in the CDCR‘s lethal injection protocol are the

15 direct result of Defendants‘ conscious disregard of the present substantial risk that the 16 execution procedure will result in the wanton and unnecessary infliction of extreme pain. 17 MCBREEN & SENIOR The failure of the Defendants to take sufficient measures to minimize the risk of Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 substantial, extreme and excruciating pain and mutilation, when such risk could readily be 20 prevented by adopting an alternative procedure to remove the risks in their procedures

21 violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. 22 123. The use of pancuronium bromide under the protocol established in Regs./OP 770 23 to paralyze Plaintiffs creates a present substantial risk that an inadequately sedated prisoner 24 25 will be subjected to a severely painful and protracted death. Moreover, it serves no 26 legitimate penological purpose. 27 28

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1 124. Pancuronium bromide does not play a legitimate role in killing the condemned 2 person. The administration of pancuronium bromide cannot be justified on the grounds

3 that the drug paralyzes the breathing muscles because death by asphyxiation is itself a form 4 of cruel and unusual punishment under the Eighth Amendment. 5 125. Enjoining the administration of pancuronium bromide will have no appreciable 6 7 impact on California correctional institution procedures. If anything, it will simplify the 8 execution process by eliminating one step in the process.

9 126. The question of whether there exist readily available alternatives to pancuronium 10 bromide is not an issue in this case because paralyzing a condemned inmate in the 11 execution process is not a legitimate penological goal. 12 13 127. The Ninth Circuit and this Court have previously held that Defendants and their 14 predecessors, in order to forestall discussion and criticism of California‘s lethal injection

15 procedure, have implemented restrictions on the execution process in order to prevent 16 witnesses from being aware of complications experienced during the procedure. 17 MCBREEN & SENIOR 128. The CDCR‘s failure to require sufficient training, credentials, certification, Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 experience, or proficiency of the personnel involved in the administration of the lethal 20 injection procedure greatly increases the present and substantial risk that a prisoner will

21 experience excruciating pain as a result of the suffocation caused by the pancuronium 22 bromide and the severely painful internal burn and cardiac arrest caused by a potassium 23 chloride overdose. Employing untrained personnel to perform executions exacerbates the 24 25 present and substantial risks created by the deficiencies in the protocol and the methods and 26 circumstances of drug administration, because untrained personnel will be unable to react

27 to and remedy problems that arise during an execution. Allowing untrained personnel to 28

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1 develop deviations from the protocol that become customary practices also increases the 2 risk of inhumane executions due to the lack of vetting by qualified experts and the danger

3 that execution team turnover will lead to confusion as to how to perform the execution. 4 129. Allowing personnel who lack sufficient training, credentials, certification, 5 experience, or proficiency to conduct the lethal injection procedure violates the rights of 6 7 the condemned person. Suffocation while inadequately sedated or otherwise aware, as 8 caused by the administration of pancuronium bromide, violates the Eighth Amendment

9 because death by asphyxiation is itself a form of cruel and unusual punishment. Similarly, 10 internal burning and cardiac arrest while insufficiently sedated or otherwise aware, as 11 caused by a potassium chloride overdose, constitute unnecessary severe physical and 12 13 psychological pain in violation of the Eighth Amendment. 14 130. If Plaintiffs suffer unnecessary pain, they will have no alternative ―reasonable and

15 effective means of communication‖ to communicate the fact that they were not properly 16 anesthetized because they will be unable to do so and the pancuronium bromide will 17 MCBREEN & SENIOR paralyze them and they will be dead at the conclusion of the procedure. Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 131. Enjoining the administration of the lethal injection procedure by personnel who 20 lack sufficient training, credentials, certification, experience, or proficiency will have no

21 appreciable impact on the correctional institution. 22 132. The question of whether there exist readily available alternatives to requiring 23 personnel who possess sufficient training, credentials, certification, experience, or 24 25 proficiency to conduct the lethal injection procedure is not an issue in this case because 26 causing a prisoner who has not been properly anaesthetized as a result of administration

27 error to experience excruciating pain from the conscious suffocation caused by 28

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1 pancuronium bromide and the painful internal burn and cardiac arrest caused by a 2 potassium chloride overdose is not a legitimate penological goal.

3 133. CDCR‘s continued use of remote administration of three-drugs without sufficient 4 means of ensuring adequate sedation throughout the procedure greatly increases the risk 5 that a prisoner will experience excruciating pain as a result of the suffocation caused by the 6 7 pancuronium bromide and the painful internal burn and cardiac arrest caused by a 8 potassium chloride overdose. Enjoining the use of remote administration of the three-drugs

9 without sufficient safeguards will have no appreciable impact on the correctional 10 institution. The question of whether there exist readily-available alternatives to employing 11 remote administration of the three-drugs without sufficient safeguards because needlessly 12 13 exposing inmates to an unreasonable risk of excruciating pain is not a legitimate 14 penological goal.

15 PRAYER FOR RELIEF 16 WHEREFORE, Plaintiffs Albert G. Brown and Michael A. Morales pray for: 17 MCBREEN & SENIOR 1. Temporary, preliminary, and permanent injunctive relief to enjoin the Defendants, Telephone: (310) 552-5300

Los Angeles, California 90067 18 2029 Century Park East, Third Floor 19 their officers, agents, servants, employees, and all persons acting in concert with them from 20 executing Plaintiffs by lethal injection using Regs./OP 770, or any similar practices or

21 protocol; 22 2. In the event that Regs./OP 770, or any similar protocol, is not enjoined in its 23 entirety as violating the Fifth, Eighth, and Fourteenth Amendments, temporary, 24 25 preliminary, and permanent injunctive relief to enjoin Defendants, their officers, agents, 26 servants, employees, and all persons acting in concert with them from administering

27 unnecessary drugs that cause excruciating and prolonged pain during the execution process; 28

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1 3. In the event that Regs./OP 770, or any similar protocol, is not enjoined in its 2 entirety as violating the Fifth, Eighth, and Fourteenth Amendments, temporary,

3 preliminary, and permanent injunctive relief to enjoin Defendants, their officers, agents, 4 servants, employees, and all persons acting in concert with them from allowing personnel 5 who lack sufficient training, credentials, certification, experience, or proficiency to conduct 6 7 the lethal injection procedure; 8 4. That the Court conduct appropriate and necessary evidentiary hearings and

9 discovery to permit Plaintiffs to prove their constitutional claims; 10 5. Reasonable attorneys‘ fees pursuant to 42 U.S.C. § 1983 and the laws of the 11 United States; 12 13 6. Costs of suit; and 14 7. Any such other relief as the Court deems just and proper.

15 DATED: October 8, 2010 By: /s/ 16 David A. Senior McBREEN &SENIOR 17 MCBREEN & SENIOR Richard P. Steinken Telephone: (310) 552-5300 Los Angeles, California 90067 18 JENNER & BLOCK 2029 Century Park East, Third Floor 19 John R. Grele 20 LAW OFFICE OF JOHN R. GRELE Attorneys for Plaintiffs 21 ALBERT G. BROWN 22 MICHAEL A. MORALES

23 24 25 26 27 28

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1 **E-Filed 9/28/2010** 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 Michael Angelo MORALES and Albert Case Number 5-6-cv-219-JF-HRL Greenwood Brown, Case Number 5-6-cv-926-JF-HRL 13 Plaintiffs, DEATH-PENALTY CASE 14 v. ORDER FOLLOWING REMAND 15 Matthew CATE, Secretary of the California 16 Department of Corrections and Rehabilitation, et al., 17 Defendants. 18 19 I. INTRODUCTION 20 This case now is before the Court pursuant to an order of remand filed by the Ninth 21 Circuit Court of Appeals on the evening on September 27, 2010. (Doc. No. 411, amended by 22 Doc. No. 420.) The order directs this Court to determine whether, in light of the decision of the 23 United States Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), Plaintiff Albert Greenwood 24 Brown is entitled to a stay of his execution as it would be conducted under California Code of 25 Regulations title 15, sections 3349 et seq. (2010), the lethal-injection execution protocol now in 26 effect in California. In particular, this Court has been asked to address the similarity between the 27 current protocol and San Quentin Operational Procedure 0-770, or O.P. 770, the earlier lethal- 28 injection protocol found constitutionally deficient by the Court following an evidentiary hearing

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1 in 2006, applying the “demonstrated risk” standard articulated in Baze, 553 U.S. at 61 (plurality 2 op.), and the standards for stays of execution generally that were announced by the Supreme 3 Court in Nelson v. Campbell, 541 U.S. 637 (2004). (Doc. No. 420 at 8.) 4 The Court has received briefing on these issues from the parties and also has conducted 5 its own review of the record in the limited time available to it given Brown’s pending execution 6 date of September 30, 2010.1 As explained below, pursuant to the guidance provided by the 7 Court of Appeals in its order of remand and new information that has come to light since its own 8 order of September 24, 2010, was entered, the Court concludes that its previous order must be 9 reconsidered and that Brown is entitled to a stay of execution. 10 II. DISCUSSION 11 The extensive history of this litigation is summarized in the Court’s order of September 12 24, 2010, (Doc. No. 401), and will not be repeated here. However, as relevant to the following 13 discussion, three points do bear repeating. First, “it is fair to say that there is no case involving 14 an Eighth Amendment challenge to a lethal-injection protocol in which the factual record is as 15 developed as the record here.” (Id. at 7, quoted in Doc. No. 420 at 6.) Second, because the 16 instant proceedings with respect to Brown were commenced less than two weeks ago, “there is 17 no way that the Court can engage in a thorough analysis of the relevant factual and legal issues in 18 the days remaining before Brown’s execution date.” (Doc. No. 401 at 8.) Third, notwithstanding 19 this severely constricted time frame, the Court must do its best to apply the tests articulated by 20 the Supreme Court in Baze and Nelson. 21 Two other observations are relevant. First, the side-by-side comparison of O.P. 770 and 22 the new lethal-injection regulations directed by the Court of Appeals, while obviously highly 23 relevant, was not proffered either by Brown in his original motion for a stay or execution or by 24 Defendants in opposition to that motion. It was Brown’s burden as the moving party to show 25 1 At the time of the Court’s earlier order denying conditionally Brown’s motion for a stay of 26 execution, the execution was set for September 29, 2010, at 12:01 a.m. On September 27, 2010, 27 apparently because the time within which Brown may seek further appellate review of certain orders in related state-court litigation has yet to run, the Governor granted a reprieve postponing the execution 28 until September 30, 2010, at 9:00 p.m.

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1 that he is likely to succeed on his claim that the new regulations fail to remedy the defects found 2 in O.P. 770 and that as such the regulations subject him to a “demonstrated risk” of an Eighth 3 Amendment violation, Baze, 553 U.S. at 61 (plurality op.). Instead, Brown offered only 4 conclusory statements that the two protocols are essentially similar. Brown’s failure to meet this 5 burden prior to his briefing on remand was a principal basis of the Court’s conclusion that Brown 6 was not entitled to an outright stay of execution. (See Doc. No. 401 at 8 (“absent a presently- 7 existing ‘demonstrated risk’ of a constitutional violation, Defendants are entitled to proceed with 8 the execution”).) 9 Second, in considering, as it was required to do, California’s “strong interest in 10 proceeding with its judgment,” Gomez v. U.S. Dist. Ct. N.D. Cal., 503 U.S. 653, 654 (1992), the 11 Court was mindful of the fact that there has been a de facto moratorium on executions in the state 12 since its decision in Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal 2006), and it understood 13 that Defendants wished to set other execution dates in the near future. It now appears that 14 Defendants knew, but did not disclose to the Court, that their existing supply of sodium 15 thiopental2 will expire on October 1, 2010, and that additional quantities of the drug will not be 16 available at least until the first quarter of 2011. (See Doc. No. 411 at 2.) At a status conference 17 on September 21, 2010, this Court set an accelerated schedule for resolution of the Morales 18 litigation under which a full review of the new regulations will be completed by the end of this 19 year. Under these circumstances, the only execution that would be impacted either directly or 20 indirectly by a stay is Brown’s, which as a result of a brief reprieve granted by the Governor is 21 now scheduled only three hours before the expiration date of the sodium thiopental. 22 A. Application of Baze to the New Regulations 23 As discussed in the Court’s earlier order, Baze created a significantly higher threshold for 24 obtaining a stay of execution in a case challenging lethal-injection protocols substantially similar 25 to the Kentucky protocol upheld there. As noted by Defendants, it appears that the Kentucky 26 27 2 Because it is the first drug used in the three-drug lethal injection “cocktail” and is used to 28 induce unconsciousness, sodium thiopental is indispensable to a lawful execution by lethal injection.

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1 protocol may have contained fewer safeguards than O.P. 770. Cf. Baze, 553 U.S. at 120–21 2 (Ginsburg, J., dissenting). At the same time, Kentucky had carried out, “with no reported 3 problems,” id. at 46 (plurality op.), only one execution under its lethal-injection protocol, and the 4 factual record before the Supreme Court was virtually nonexistent. 5 In its order of September 24, 2010, this Court commented that although it “framed its 6 factual findings and legal conclusions [in the 2006 Morales litigation] under the legal standard 7 then applicable in the Ninth Circuit, it likely would have made the same findings and reached the 8 same conclusions under the ‘demonstrated risk’ standard announced in Baze.” (Doc. No. 401 at 9 8 (internal citation omitted).) Although the ultimate disposition in that order did not require an 10 express finding in that regard, such a finding appears to be necessary on remand to inform the 11 Court’s comparison of O.P. 770 and the new regulations. Accordingly, the Court hereby finds 12 that O.P. 770 as implemented in practice through and including the date of the evidentiary 13 hearing in the 2006 Morales litigation created a “demonstrated risk of severe pain.” This finding 14 is based on the entire record, see Morales, 465 F. Supp 2d 972; on the largely undisputed 15 evidence presented at the hearing; on Defendants’ stipulation that injection of the second and 16 third drugs in the three-drug protocol (pancuronium bromide and potassium chloride) without 17 adequate anesthesia will cause an unconstitutional level of pain; on the fact that data in 18 Defendants’ execution logs indicate that sodium thiopental did not have its expected effect or 19 function as expected in 64% of lethal-injection executions pursuant to the protocol; and in 20 particular on the testimony of Defendants’ own medical expert, Dr. Singler, that in at least one 21 execution the inmate likely was awake when the second and third drugs were injected, and that 22 the only reason that the anesthesiologist could not render a definitive opinion was the apparent 23 unreliability of Defendants’ records, id. at 980. 24 Defendants contend that the deficiencies in O.P. 770 have been remedied by the new 25 regulations and the construction of new execution facilities,3 and that the Court may determine 26 3 27 Though it did cite deficiencies in the facilities used under O.P. 770, the Court did not order that new facilities be constructed. The person then serving as the warden at San Quentin, who later admitted 28 that he had not read the Court’s memorandum in Morales v. Tilton, apparently believed that such an

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1 without discovery, additional briefing or fact-finding that Brown cannot show a “demonstrated 2 risk of severe pain.” For his part, Brown claims that the new regulations largely are O.P. 770 by 3 another name, particularly with respect to the selection and training of the execution team and 4 important aspects of the method for delivery of the three drugs involved. Based on the Court’s 5 very limited comparison of the two protocols in light of the order of remand and the additional 6 briefing provided by the parties earlier today, it appears that Brown would have difficulty 7 proving that Defendants have not made substantial improvements with respect to the physical 8 conditions in which executions are to take place. However, there is a significant dispute with 9 respect to the remaining issues. 10 Defendants’ position is straightforward. They do not claim that the new regulations are 11 radically different from previous lethal injection protocols; indeed, in most respects the 12 documents are remarkably similar. Instead, they begin with the plurality’s observation in Baze 13 that “a State with a lethal injection protocol substantially similar to [Kentucky’s] would not 14 create a risk that meets [the ‘demonstrated risk’] standard.” 553 U.S. at 61 (plurality op.). They 15 then cite Justice Ginsburg’s approving reference in her dissent to the fact that “[i]n California, a 16 member of the IV team brushes the inmate’s eyelashes, speaks to him, and shakes him at the 17 halfway point and, again, at the completion of the sodium thiopental injection.” Id., at 120–21 18 (Ginsburg, J., dissenting).4 They argue that this “consciousness check” alone is sufficient to 19 render the current regulations constitutionally adequate. They present a side-by-side comparison 20 of key provisions of the regulations and the Kentucky protocol found constitutional in Baze, 21 pointing out a number of ways in which the regulations provide greater protection to the inmate 22 than the procedures used in Kentucky. Finally, they assert that subsequent to Baze, several courts 23

24 order had been made. Findings of S. Public Safety Comm. Informational Hr’g on San Quentin Death Chamber, 2007–08 Sess. (Cal. 2007). 25 4 Justice Ginsburg’s comment concerned a revised version of O.P.770 not reviewed in the 2006 26 Morales litigation. O.P. 770 § V(S)(4)(e) (2007). The same procedure is incorporated in the regulations. 27 Cal. Code Regs. tit. 15, § 3349.4.5(g)(5) (2010). The only other significant difference between the version of O.P. 770 considered in the 2006 proceedings and the new regulations is a reduction in the 28 amount of sodium thiopental used in executions from five grams to three grams.

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1 have concluded that evidence of problems under preëxisting, superseded execution protocols is 2 insufficient to show a presently existing “demonstrated risk” of a constitutional violation, citing 3 Raby v. Livingston, 600 F.3d 552, 560–62 (5th Cir. 2010); State v. Jordan, No. W2007-01272- 4 SC-DDT-DD, 2010 WL 3668513 (Tenn. Sept. 22, 2010); Jackson v. Danberg, 594 F. 3d 210, 5 226–27 (3d Cir. 2010). (But see, e.g., Doc. No. 401 at 7 (distinguishing Jackson).) 6 Although he does not concede that the new regulations are facially adequate under Baze, 7 Brown argues principally that the “pervasive lack of professionalism,” Morales, 465 F. Supp. 2d 8 at 980, and “lack of reliability and transparency,” id., at 981, that the Court found in Defendants’ 9 actual application of O.P. 770 also has characterized Defendants’ subsequent efforts to revise the 10 lethal-injection protocol. He contends that on the present record, unlike other courts that have 11 had to assess the constitutionality of post-Baze protocols, this Court cannot simply presume that 12 Defendants’ actual application of the new regulations will meet constitutional standards. Citing 13 excerpts from the limited discovery that occurred in the instant case following the 2006 14 evidentiary hearing (as well as a large volume of exhibits), he argues that Defendants did not 15 come close to conducting the “meaningful review” of the “infrastructure” of executions that the 16 Court concluded was necessary, id., at 983, and that notwithstanding what the regulations say on 17 their face, the deficiencies found by the Court in the selection and training of the execution team, 18 the mixing and delivery of the drugs used in executions, and the adequacy and accuracy of 19 execution records under O.P. 770 in fact have not been addressed and are present under the 20 regulations as well.5 21 In order to obtain a stay of execution under Baze, Brown must show that California’s 22 lethal-injection protocol “creates a demonstrated risk of severe pain.” 553 U.S. at 61 (plurality 23 op.). However, in light of the voluminous record in this case and the fact that the Court has been 24 precluded from proceeding with the Morales litigation for more than three years by the pendency 25 of a state-court injunction and the parties’ repeated mutual requests that the state-court litigation 26 5 27 Defendants’ very recent acknowledgment that they have only a very limited supply of sodium thiopental on hand is particularly relevant, as it appears that there is an insufficient quantity of the drug 28 available to permit the pre-execution training and mixing described in the regulations.

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1 be resolved first, it is virtually impossible for the Court to assess other than in a very preliminary 2 way prior to Brown’s scheduled execution date whether Brown can or will be able to make such 3 a showing. Based solely on that very preliminary assessment, it appears that Brown has raised 4 substantial questions of fact as to whether at least some of the deficiencies of O.P. 770 have been 5 addressed in actual practice. Given what is at stake, this Court greatly appreciates the direction 6 of the Court of Appeals that “[t]iming is everything and the district court should take the time 7 necessary to address the State’s newly revised protocol in accord with Supreme Court authority.” 8 (Doc. No. 420 at 2.) Given an execution date of September 30, 2010, the Court simply cannot 9 comply fully with that directive in time to render a reasoned decision and permit adequate 10 appellate review. 11 B. Nelson v. Campbell 12 In Nelson, the Supreme Court held that “[g]iven the State’s significant interest in 13 enforcing its criminal judgments, there is a strong equitable presumption against the grant of a 14 stay where a claim could have been brought at such a time as to allow consideration of the merits 15 without requiring entry of a stay.” 541 U.S. at 650 (internal citations omitted). In this case, as 16 discussed in the Court’s order of September 24, 2010, there is no indication, and Defendants did 17 not contend in their opposition to the motions, that Brown’s motions were untimely. To the 18 contrary, as this Court found and as the Court of Appeals appears to agree, the equitable 19 presumption appears to cut strongly the other way. 20 Regardless of whether Defendants’ counsel ever expressly represented that they would 21 defer seeking new execution dates until the Morales litigation could be concluded, that was 22 Brown’s—as well as the Court’s—understanding, and it is clear that the urgency of the present 23 situation was created not by Brown but by Defendants’ decision to seek an execution date only 24 thirty days after the new regulations became final. Moreover, because the injunction issued by 25 the Marin Superior Court was not vacated until September 20, 2010, it was not apparent that 26 there was anything for this Court to consider until that date.6 The hearing on Brown’s motions to 27

28 6 Apparently, the state-court injunction technically will not be vacated until at least September

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1 intervene and to stay his execution heard by this Court on September 21, 2010, actually were 2 appended to a status conference that the Court scheduled sua sponte because it was concerned 3 that the developments in the state courts might put it in exactly the position in which it finds 4 itself now. As the Court of Appeals observed, the fact that “[t]he timing of Brown’s execution 5 date is apparently dictated in part by the fact that the state’s existing inventory of sodium 6 thiopental consists of 7.5 grams, with an expiration date of October 1, 2010,” (Doc. No. 420 at 2 7 (internal quotation marks omitted))—a fact that Defendants did not disclose to this 8 Court—hardly is a reason to forego a proper examination of the merits of Brown’s claims. 9 As noted above, the Court indicated more than three years ago that it wished to proceed 10 expeditiously with such an examination; it has yet to do so only because the parties asked it to 11 wait because of state-court litigation over which it had no control. In other words, much of the 12 review the Court needs to undertake would have been completed by now but for Defendants’ 13 own requests. The Court fully intends to undertake that review now, and to do so as quickly as is 14 reasonably possible. The fact that Defendants do not intend to schedule any future executions 15 until at least the first quarter of 2011 (and indeed they cannot because of the unavailability of 16 sodium thiopental) means that such a time line will have minimal effect on Defendants’ long- 17 term interests. 18 C. Additional Observations 19 Like the Court of Appeals, this Court will emphasize once again that this case does not 20 involve Brown’s guilt, the truly heinous acts Brown committed that resulted in his death 21 sentence, or the wisdom of the death penalty. Particularly in light of the guidance provided by 22 the remand order, the only issue at present is whether Baze requires that Brown’s execution 23 proceed or whether it permits the Court to complete the review of California’s lethal-injection 24 procedures that it began (but because of intervening events was not permitted to complete) more 25 than four years ago. 26 In offering Brown the option to request that only sodium thiopental be used in his 27 28 30, 2010, a fact that has prompted the Governor to grant Brown a reprieve until that date.

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1 execution, the Court was seeking a way to reconcile California’s “significant interest in enforcing 2 its criminal judgments,” Nelson, 541 U.S. at 650, with Brown’s constitutional right to an 3 execution method that does not expose him to a “demonstrated risk of severe pain.”7 Baze, 553 4 U.S. at 61 (plurality op.). While some understandably find offensive the notion that a 5 condemned inmate may elect a method of execution, such elections are expressly permitted by 6 law in at least thirteen states, including California. However, because the particular election at 7 issue here should not have been presented to Brown unilaterally, the Court recognizes that its 8 effort in this instance was ill-advised and that it should have granted Brown’s motion for 9 reconsideration on that basis. 10 III. DISPOSITION 11 Pursuant to the direction of the Court of Appeals, in accordance with the foregoing 12 discussion, and good cause therefor appearing, Brown’s motion for a stay of execution is granted. 13 Accordingly, all proceedings related to the execution of Petitioner’s sentence of death, including 14 but not limited to preparations for an execution and the setting of an execution date, are hereby 15 stayed. This stay will remain in effect unless and until it is dissolved by this Court, the United 16 States Court of Appeals for the Ninth Circuit, or the Supreme Court of the United States. 17 IT IS SO ORDERED. 18 19 DATED: September 28, 2010 ______JEREMY FOGEL 20 United States District Judge 21 22 23 24 25 7 As detailed in many of the Court’s prior orders, sodium thiopental is painless and, in the 26 amounts at issue here, virtually always fatal. One of Brown’s principal criticisms of the new regulations 27 in the state-court litigation is that Defendants did not give adequate consideration to the use of a single- drug alternative. Sims v. Cal. Dep’t of Corr. & Rehab., No CIV 1004019 (Cal. Super. Ct. Marin Cnty. 28 compl. filed Aug. 2, 2010).

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1 **E-Filed 9/24/2010** 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 Michael Angelo MORALES, Case Number C 06 219 JF HRL Case Number C 06 926 JF HRL 13 Plaintiff, DEATH-PENALTY CASE 14 v. ORDER GRANTING MOTION FOR 15 Matthew CATE, Secretary of the California LEAVE TO INTERVENE; AND Department of Corrections and Rehabilitation, et DENYING CONDITIONALLY 16 al., INTERVENOR’S MOTION FOR A STAY OF EXECUTION 17 Defendants. 18 19 20 Albert Greenwood Brown, a condemned inmate at San Quentin State Prison, seeks leave 21 to intervene in the above-entitled actions. He also seeks a stay of his execution, which currently 22 is scheduled for September 29, 2010 at 12:00am. Because Brown’s federal claims are virtually 23 identical to those asserted by Plaintiff Michael Angelo Morales, the motion for leave to intervene 24 will be granted. The motion for a stay of execution will be denied, subject to the conditions set 25 forth below. 26 I. BACKGROUND 27 Morales filed the first of these consolidated actions in January 2006, claiming that the 28 lethal-injection execution protocol then used by Defendants, known as O.P. 770, was so seriously

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1 flawed that it violated the Eighth Amendment’s prohibition against “cruel and unusual 2 punishments.” Morales produced evidence indicating that a number of inmates who had been 3 executed pursuant to O.P. 770 may not have been unconscious when they were injected with the 4 second and third drugs used in the protocol.1 While disputing the probative value of Morales’s 5 showing, Defendants stipulated that injecting these two drugs into a conscious person would 6 cause an unconstitutional degree of pain and suffering. 7 After receiving briefing and holding an evidentiary hearing, the Court found that Morales 8 was entitled to relief under the legal standard then applicable in the Ninth Circuit, which 9 prohibited methods of execution that exposed the condemned person to “an unnecessary risk of 10 unconstitutional pain.” Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004). However, 11 rather than granting Morales an outright stay of execution, the Court entered an order permitting 12 Defendants to proceed with the execution under certain alternative conditions, one of which was 13 to execute Morales using only a barbiturate. Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. 14 Cal. 2006). 15 For reasons that for the most part are not directly relevant to the instant motions, 16 Defendants did not carry out the execution, and a stay issued pursuant to the Court’s conditional 17 order. The parties then engaged in several months of discovery, including a judicial visit to the 18 execution facilities at San Quentin. The Court subsequently held a four-day evidentiary hearing 19 and received voluminous briefing and documentary evidence. As a result of this process, the 20 Court “learned a great deal about executions by lethal injection in general and their 21 implementation in California in particular.” Morales v. Tilton, 465 F. Supp. 2d 972, 978 (N.D. 22 Cal. 2006). It found and concluded that as implemented in actual practice, O.P. 770 contained 23 24 25 26 1The first drug in the three-drug execution protocol is sodium thiopental, which is 27 painless and is intended to induce unconsciousness. The second drug, pancuronium bromide, 28 induces paralysis. The third drug, potassium chloride, stops the heart. It is undisputed that in the quantities specified in the protocol, any of the three drugs will cause death. 2 Case Nos. C 06 219 JF HRL & C 06 926 JF HRL ORDER GRANTING MOTION FOR LEAVEExcerpts TO INTERVENE; of Record AND - DENYING247 CONDITIONALLY INTERVENOR’S MOTION FOR A STAY OF EXECUTION Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 401 FiledDktEntry: 09/24/10 15-2, PagePage 2403 of of11 297

1 several serious deficiencies2 , and it asked Defendants to engage in a through review and revision 2 of the protocol. 3 Defendants accepted the Court’s invitation to revise California’s lethal injection 4 procedures, and they presented a new version of O.P. 770 on April 15, 2007. Defendants also 5 began construction of new execution facilities at San Quentin. It was the Court’s intention at that 6 time to review Defendants’ revisions expeditiously so that the instant lawsuit could be resolved. 7 However, as a result of separate litigation in the Marin Superior Court, Defendants were enjoined 8 from implementing the new protocol unless and until they complied with California’s 9 Administrative Procedures Act (“APA”), Cal. Govt. Code §§ 11340, et seq., and the superior 10 court’s order was upheld on appeal. Morales v. Cal. Dep’t of Corr. & Rehab., 168 Cal. App. 4th 11 749 (Cal. Ct. App. 2008). Although several status conferences were scheduled thereafter, both 12 Morales and Defendants requested that this Court not proceed further until the state-court appeal 13 and the subsequent administrative process were completed. While the instant case was brought 14 by Morales in his individual capacity and not on behalf of other condemned inmates similarly 15 situated, the Court always has understood, apparently incorrectly, that executions would not 16 resume until it had an opportunity to review the new lethal-injection protocol in the context of 17 the evidentiary record developed during the 2006 proceedings. 18 The new lethal-injection protocol, which now is a formal regulation, Cal. Code Regs. tit. 19 15, §§ 3349, et seq., became effective on August 29, 2010. On August 30, 2010, at the request of 20 that county’s district attorney, the Riverside Superior Court scheduled Brown’s execution for 21 September 29, 2010. On August 31, 2010, the Marin Superior Court granted a motion to enforce 22 its earlier injunction, thereby staying any execution, including Brown’s, “unless and until this 23 24 25 2The deficiencies included inconsistent and unreliable screening of execution team 26 members; a lack of meaningful training, supervision and oversight of the execution team; inconsistent and unreliable record-keeping; improper mixing, preparation and administration of 27 sodium thiopental by the execution team; and inadequate lighting, overcrowded conditions, and 28 poorly designed facilities in which the execution team must work. Morales v. Tilton, 465 F. Supp. 2d at 979-80. 3 Case Nos. C 06 219 JF HRL & C 06 926 JF HRL ORDER GRANTING MOTION FOR LEAVEExcerpts TO INTERVENE; of Record AND - DENYING248 CONDITIONALLY INTERVENOR’S MOTION FOR A STAY OF EXECUTION Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 401 FiledDktEntry: 09/24/10 15-2, PagePage 2414 of of11 297

1 court dissolves the permanent injunction issued by this court in its final judgment.” Defendants 2 sought appellate review, and on September 20, 2010, the California Court of Appeal issued a 3 peremptory writ of mandate directing the lower court to dissolve the injunction. Cal. Dep’t of 4 Corr. & Rehab. v. Super. Ct., No. A129540 (Cal. Ct. App., Sept. 20, 2010). Brown filed the 5 instant motions on September 15, 2010, while Defendants’ writ petition was pending, and this 6 Court heard oral argument on September 21, 2010. 7 During the lengthy hiatus in these federal proceedings, the United States Supreme Court 8 decided Baze v. Rees, 553 U.S. 35 (2008), holding that Kentucky’s lethal-injection protocol, 9 which uses the same three drugs as California’s, did not violate the Eighth Amendment. The 10 plurality opinion by Chief Justice Roberts stated that in a case involving an Eighth Amendment 11 challenge to a lethal-injection protocol, a federal court may not stay an execution “unless the 12 condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated 13 risk of severe pain.” Id. at 61 (plurality op.). Finding that “[t]here were no reported problems” 14 during the one lethal-injection execution actually carried out in Kentucky, id., at 46 (plurality 15 op.), the plurality concluded that the petitioners had “not carried their burden of showing that the 16 risk of pain... constituted cruel and unusual punishment,” id. at 41 (plurality op.). 17 The requirement that an inmate seeking stay of execution show “a demonstrated risk of 18 severe pain” superseded the lesser showing (“an unnecessary risk of unconstitutional pain”) that 19 had been articulated by the Ninth Circuit in Cooper, 379 F. 3d at 1033, and that was binding on 20 this Court at the time that Morales filed the instant action in 2006 and until Baze was decided. 21 At the same time, while it rejected the petitioners’ argument that Kentucky was constitutionally 22 required to adopt a single-drug method of execution, which at that point had not been tested in 23 any state, the Baze plurality did note the relevance of “known and available alternatives” to a 24 lethal-injection protocol in a case in which a substantial risk of a constitutional violation has been 25 shown. In the words of the Chief Justice, 26 To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State 27 refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method 28 of execution, then a State's refusal to change its method can be viewed as "cruel

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1 and unusual" under the Eighth Amendment. 2 553 U.S. at 52 (plurality op.) Since Baze was decided, two states–Ohio and Washington–have 3 carried out a total of nine successful and problem-free executions using only sodium thiopental. 4 II. DISCUSSION 5 A. Abstention 6 Federal courts ordinarily should abstain from the exercise of jurisdiction “in cases 7 presenting a federal constitutional issue which might be mooted or presented in a different 8 posture by a state court determination of pertinent state law.” Colorado River Water Conserv. 9 Dist. v. United States, 424 U.S. 800, 813-14 (1976) (internal quotation marks and citations 10 omitted). In the instant case, Brown is one of several condemned inmates who have challenged 11 California’s new lethal-injection regulations in the Marin Superior Court on the basis that the 12 regulations were not adopted properly under California’s Administrative Procedures Act. At oral 13 argument, counsel for Brown represented that they intended to seek injunctive relief that would 14 permit the state court to consider the merits of this challenge prior to any executions taking place. 15 Such relief would render moot Brown’s motion for a stay of execution by this Court. 16 Apparently, the state court will not consider Brown’s request until Monday, September 17 27, 2010.3 Because Brown’s execution is set for midnight on Wednesday, September 29, 2010, a 18 decision by this Court to defer its ruling until after the state court has acted likely would frustrate 19 the parties’ ability to obtain meaningful appellate review of this Court’s ruling. Accordingly, the 20 Court concludes that abstention is not warranted. In deference to the state court, this Court has 21 not considered and does not address Brown’s state-law claims. 22 B. Timeliness 23 The Supreme Court has held that in determining the appropriateness of issuing a stay of 24 execution, 25 a district court must consider not only the likelihood of success on the merits and 26 27 3Brown made a previous, unsuccessful request for injunctive relief in the state court, but 28 at that time the now-vacated injunction in the earlier APA litigation was still in place, and it does not appear that the state court addressed the merits of Brown’s claims. 5 Case Nos. C 06 219 JF HRL & C 06 926 JF HRL ORDER GRANTING MOTION FOR LEAVEExcerpts TO INTERVENE; of Record AND - DENYING250 CONDITIONALLY INTERVENOR’S MOTION FOR A STAY OF EXECUTION Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 401 FiledDktEntry: 09/24/10 15-2, PagePage 2436 of of11 297

1 relative harm to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State’s significant interest in 2 enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to 3 allow consideration of the merits without requiring entry of a stay. 4 Nelson v. Campbell, 541 U.S. 637, 649050 (2004). Brown filed the instant motions on 5 September 15, 2010, only two weeks before his execution date. Because of the need for at least 6 minimal briefing, oral argument did not occur until September 21, 2010, only eight days before 7 the scheduled execution. Under ordinary circumstances, Brown’s motions clearly would be 8 untimely. See, e.g., Cooper, 379 F.3d at 1031. 9 However, the circumstances in this case are anything but ordinary. Until September 20, 10 2010 an injunction was in place that prohibited, pending state-court review, any executions under 11 California’s new lethal-injection regulations. While that injunction since has been vacated, no 12 authority cited by Defendants holds that Brown was required to predict how the state appellate 13 court would rule or to seek “back-up” relief from this Court or in other state-court litigation. 14 Brown’s counsel also claim that they relied on assurances by Defendants’ counsel that 15 Defendants would not seek to resume executions while the instant federal case was pending.4 16 Although arguably Brown could have filed his motions as a protective measure some weeks 17 earlier (that is, on or shortly after August 30, 2010, when his execution date was set), it is 18 Defendants who seek an execution date that effectively precludes an orderly review of the new 19 regulations in either state or federal courts, and Defendants thus bear at least some responsibility 20 for the fact that the Court now must address constitutional issues in a severely limited time 21 frame. Significantly, while the Court must address the timeliness of Brown’s motions sua sponte 22

23 4Defendants’ counsel dispute this claim. They acknowledge stating to this Court in 2006 that no executions would be scheduled during the period immediately preceding and following 24 the evidentiary hearing because there were no condemned inmates whose cases had progressed to 25 the point where that was a legal possibility, but they deny making any subsequent representations to counsel that executions would not be scheduled until after this Court has considered the new 26 lethal-injection regulations. After hearing from all counsel at a telephonic hearing earlier today, the Court is not persuaded that Defendants’ counsel made any representation that would affect 27 the analysis or disposition of the instant motions. Although the Court itself was surprised by 28 Defendants’ decision to seek an execution date for Brown when they did, that decision is not inconsistent with anything communicated to the Court by Defendants’ legal representatives. 6 Case Nos. C 06 219 JF HRL & C 06 926 JF HRL ORDER GRANTING MOTION FOR LEAVEExcerpts TO INTERVENE; of Record AND - DENYING251 CONDITIONALLY INTERVENOR’S MOTION FOR A STAY OF EXECUTION Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 401 FiledDktEntry: 09/24/10 15-2, PagePage 2447 of of11 297

1 in determining the appropriateness of equitable relief, Defendants themselves did not contend in 2 their briefing that Brown has not been diligent in seeking federal relief. 3 C. Merits 4 Brown contends that because California’s new lethal-injection regulations are a direct 5 response to this Court’s earlier factual findings, no executions should take place unless and until 6 the Court has had the opportunity to conduct a full review of the regulations. Brown also claims 7 that the regulations have failed to address many of the deficiencies identified by the Court, 8 particularly with regard to selection and training of the execution team. 9 Defendants argue that Brown has not made the showing required by Baze, that is, that the 10 new regulations create “a demonstrated risk of severe pain.” Id., at p. 61 (plurality op.) They 11 point out that the regulations were subjected to months of public and administrative scrutiny, and 12 that they have built a new execution facility that remedies specifically a number of the 13 deficiencies in the old facility that were identified by the Court. They also observe that the 14 Kentucky lethal-injection protocol that passed constitutional muster in Baze in some respects had 15 fewer safeguards even than O.P. 770, Cf. Baze, 553 U.S. at 120-21 (Ginsburg, J., dissenting), 16 which they contend has been improved significantly under the new regulations. 17 In considering these arguments, this Court hardly is writing on a clean slate. Indeed, it is 18 fair to say that there is no case involving an Eighth Amendment challenge to a lethal-injection 19 protocol in which the factual record is as developed as is the record here. As noted earlier, there 20 had been only one execution under the Kentucky protocol considered by the Supreme Court in 21 Baze, and the plurality opinion noted specifically that there had been “no reported problems” 22 with that execution. Id., at p.46 (plurality op.) Similarly, in a post-Baze decision affirming the 23 denial of relief by the district court in Delaware, the Third Circuit found that the plaintiffs “ha[d] 24 submitted no evidence” and thus “on this record” concluded that they had “failed to show that 25 Delaware’s lethal injection protocol violates the Eighth Amendment under Baze.” Jackson v. 26 Danberg, 594 F.3d 210, 229 (3rd Cir. 2010). 27 In contrast, the record in this case, much of which was stipulated to by Defendants, shows 28 that there may have been problems with as many as seven of the eleven lethal-injection

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1 executions carried out under O.P. 770. Defendants’ own medical expert expressed concern that 2 at least one inmate well may have been awake when he was injected with the second and third 3 drugs in the lethal-injection cocktail. Morales v. Tilton, 465 F. Supp. 2d at 980. After 4 considering four days of testimony and hundreds of pages of documentary evidence, the Court 5 found that O.P. 770 as implemented in practice “lack[ed] both reliability and transparency.” 6 Id., at p. 981. Although the Court framed its factual findings and legal conclusions under the 7 legal standard then applicable in the Ninth Circuit, cf., Cooper, 379 F.2d at 1033, it likely would 8 have made the same findings and reached the same conclusions under the “demonstrated risk” 9 standard announced in Baze. 10 The question remains whether Brown is entitled to a stay of execution. As discussed 11 above, Morales’s own request for a stay of execution, which involved the lesser showing then 12 required under Cooper, was conditionally denied, and Morales was not executed only because 13 the conditions were not met. As the Court recognized in its order concerning Morales, California 14 has a “strong interest in proceeding with its judgment,” Gomez v. U.S. Dist. Ct. N.D. Cal., 503 15 U.S. 653, 654 (1992). While Brown is correct that the development of the record after Morales’s 16 execution was stayed produced even stronger evidence of problems with O.P. 770, O.P. 770 no 17 longer is operative, and Defendants reasonably point both to their extensive efforts to address the 18 Court’s concerns in the new regulations and facilities and the higher threshold for obtaining stays 19 of execution established by the Supreme Court in Baze. 20 Although it has adopted an accelerated case management schedule for resolution of 21 Morales’s claims in light of the new regulations, there is no way that the Court can engage in a 22 thorough analysis of the relevant factual and legal issues in the days remaining before Brown’s 23 execution date. The regulations have been more than three years in the making, and the Court 24 would have preferred strongly to address any constitutional issues with respect to the regulations 25 in a more orderly fashion. Nonetheless, the Court recognizes that there was no legal impediment 26 to the setting of Brown’s execution date, and that absent a presently-existing “demonstrated risk” 27 of a constitutional violation, Defendants are entitled to proceed with the execution. 28

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1 Based on the foregoing discussion, the Court concludes that Brown has no greater 2 entitlement to equitable relief than Morales did in February 2006. As relevant here, the Court 3 concluded that Morales was not entitled to an outright stay of execution, but that it was 4 appropriate that certain conditions be imposed that insured that Morales would not endure an 5 unconstitutional degree of pain and suffering. Morales v. Hickman, 415 F. Supp. 2d at 1047. 6 One of the alternatives offered to Defendants was to execute Morales using only sodium 7 thiopental. For reasons not relevant here, Defendants did not seek to proceed with that alternative 8 until hours before Morales’s death warrant was to expire, and at that point no clear procedure had 9 been articulated for carrying out a single-drug execution. 10 In an effort to avoid repeating that situation, the Court asked Defendants at oral argument 11 on the instant motions to indicate what variation from the current regulations, if any, would be 12 necessary to carry out Brown’s execution using only sodium thiopental, and how much advance 13 notice Defendants would require to implement such a variation. Defendants responded to the 14 Court’s questions on September 22, 2010, and Brown filed a response on September 23, 2010. 15 Drawing upon its familiarity with and understanding of the record, the Court is satisfied that the 16 procedure described in Defendants’ submission is sufficient to eliminate any “demonstrated risk” 17 of a constitutional violation. The fact that nine single-drug executions have been carried out in 18 Ohio and Washington without any apparent difficulty is undisputed and significant. 19 Defendants reasonably are concerned that having been required by the state courts to 20 promulgate the current lethal-injection protocol as formal regulations, any variation from the 21 regulations would be problematic. The Court is satisfied that it can address this concern by 22 allowing Brown himself to choose whether the second and third drugs in the protocol will be 23 withheld. Allowing a condemned inmate to make such a choice is consistent with Ninth Circuit 24 authority in cases arising both in California and elsewhere. Fierro v. Gomez, 77 F.3d 301 (9th 25 Cir. 1996), vacated on other grounds sub nom. Gomez v. Fierro, 519 U.S. 918 (election between 26 27 28

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1 lethal injection and lethal gas in California); Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) 2 (election between lethal injection and hanging in Washington).5 3 The Court is constrained to point out once again that the instant litigation is not about the 4 wisdom or morality of the death penalty or the tragic suffering of the families and loved ones of 5 those who commit capital crimes. The passions that surround these issues are deep and entirely 6 understandable, but they have little to do with the limited legal question presented here, which is 7 whether under the United States Constitution as interpreted by the United States Supreme Court, 8 Albert Greenwood Brown is entitled to a stay of execution. The Court is painfully aware that 9 however it decides a case of this nature, there will be many who disagree profoundly with its 10 decision. The moral and political debate about capital punishment will continue, as it should. 11 12 III. DISPOSITION 13 Good cause therefor appearing, 14 1. The motion for leave to intervene is granted; 15 2. The motion for a stay of execution is denied, subject to the following conditions: 16 a. Not later than 6:00pm on Saturday, September 25, 2010, Brown shall advise 17 Defendants through counsel whether he elects to be executed by the injection of 18 all of the drugs specified in Cal. Code Regs. tit. 15, §§ 3349, et seq., or by the 19 5 20 See also Ala. Code 1975 § 15-18-82 (Alabama)(lethal injection but prisoner may elect electrocution) A.C.A. § 5-4-617 (Arkansas)(lethal injection; if offense committed before certain 21 date, lethal injection but prisoner may elect electrocution); F.S.A. § 922.10 (West) (Florida)(lethal injection but prisoner may elect electrocution); KRS § 431.220 (Kentucky)(lethal 22 injection; if offense committed before certain date, lethal injection but prisoner may elect 23 electrocution); Code 1976 § 24-3-530 (South Carolina)(lethal injection but prisoner may elect electrocution;T. C. A. § 40-23-114 (Tennessee)(lethal injection but prisoner may elect 24 electrocution); Va. Code Ann. § 53.1-234 (Virginia)(lethal injection but prisoner may elect electrocution); Ariz. Const. art. XXII § 22 (Arizona) (lethal injection; if offense committed 25 before certain date, lethal injection but prisoner may elect lethal gas); 26 Cal. Penal Code § 3604 (California)(lethal injection but prisoner may elect gas); V.A.M.S. 546.720 (Missouri)(unclear who makes election); N.H. Rev. Stat. § 630:5 (New 27 Hampshire)(lethal injection but state may elect hanging); RCWA 10.95.180 (West) (Washington)(lethal injection or hanging); U.C.A. 1953 § 77-18-5.5 (Utah)(lethal injection; if 28 offense committed before certain date, lethal injection but prisoner may elect firing squad). 10 Case Nos. C 06 219 JF HRL & C 06 926 JF HRL ORDER GRANTING MOTION FOR LEAVEExcerpts TO INTERVENE; of Record AND - DENYING255 CONDITIONALLY INTERVENOR’S MOTION FOR A STAY OF EXECUTION Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 401 Filed DktEntry: 09/24/10 15-2, Page 11248 of of 11 297

1 injection of sodium thiopental only. Such election shall not be deemed to be a 2 waiver of Brown’s right to appeal from this order or any part of it, but it shall 3 be deemed consent for Defendants to vary from the regulations as described in 4 Defendants’ submission dated September 23, 2010, in the event that this order is 5 not vacated or modified on appeal; 6 b. If Brown timely elects to be executed by the injection of sodium thiopental 7 only, Defendants shall carry out the execution in accordance with Cal. Code Regs. 8 tit. 15, §§ 3349, et seq, except that they shall do so using sodium thiopental only 9 and in the quantity and in the manner described in their submission dated 10 September 23, 2010; 11 c. If Brown timely elects to be executed by the injection of sodium thiopental 12 only, and if for any reason Defendants decline to proceed in accordance with that 13 election, a stay of execution shall issue without further order. To permit orderly 14 appellate review, Defendants shall advise Brown’s counsel and the Court of any 15 such declination not later than 12:00pm on Monday, September 27, 2010; 16 d. If Brown does not timely elect to be executed by the injection of sodium 17 thiopental only, Defendants may carry out the execution in accordance with Cal. 18 Code Regs. tit. 15, §§ 3349, et seq. 19 20 IT IS SO ORDERED. 21 22 DATED: September 24, 2010 ______JEREMY FOGEL 23 United States District Judge 24 25 26 27 28

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1 EDMUND G. BROWN JR. Attorney General of California 2 ROCHELLE C. EAST Senior Assistant Attorney General 3 THOMAS S. PATTERSON Supervising Deputy Attorney General 4 MICHAEL J. QUINN Deputy Attorney General 5 State Bar No. 209542 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5726 7 Fax: (415) 703-5843 E-mail: [email protected] 8 Attorneys for Defendants Schwarzenegger, Cate and Cullen 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 MICHAEL ANGELO MORALES, C 06-0219 JF 15 Plaintiff, DEFENDANTS' RESPONSES TO COURT'S INQUIRIES 16 v. 17 MATTHEW CATE, et al., 18 Defendants. 19 20 21 22 23 24 25 26 27 28

Defs.' Responses to Court's Inquiries (C 06-0219 JF) Excerpts of Record - 257 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 394 DktEntry: Filed 09/22/10 15-2, Page Page 250 2 of of 4 297

1 During the September 21, 2010 joint status conference, this Court requested information 2 from Defendants regarding the following issues: (1) the departures from the current regulations 3 that would be necessary to enable Defendants to perform a lethal-injection execution with a single 4 drug, namely, sodium thiopental; and (2) the amount of notice that the execution team would need 5 to make such changes and conduct a lethal-injection execution with a single drug. Without

6 conceding that the Court has jurisdiction to order a single-drug execution or that such an 7 execution would comply with State law, the following addresses the Court's two questions.

8 I. THE CHANGES THAT WOULD BE NECESSARY TO PERFORM AN EXECUTION WITH A SINGLE DRUG. 9 10 The current lethal-injection regulations, which went into effect on August 29, 2010, specify 11 that 1.5 grams of sodium thiopental must be administered by the execution team, followed by a 12 consciousness assessment of the inmate. Cal. Code Regs. tit. 15, § 3349.4.5(g)(5)(A) (2010). 13 After that assessment, a second syringe with 1.5 grams of sodium thiopental is administered by

14 the team. Id. at § 3349.4.5(g)(5)(B). If, following the administration of a saline flush and another 15 consciousness assessment, the inmate is determined to be unconscious, the remaining lethal

16 injection chemicals are dispensed. Id. at § 3349.4.5(g)(5)(C-H). 17 To perform a lethal-injection execution with a single drug, Defendants would make several 18 changes to the manner in which the lethal injection chemicals are currently administered. Instead 19 of using a total of three grams of sodium thiopental, as specified in the existing regulations, 20 Defendants would use a total of five grams of sodium thiopental. The sodium thiopental would 21 be administered through five syringes, each containing one gram of the chemical. After all five 22 syringes have been administered, a 50cc saline flush would be dispensed. 23 As in a three-drug execution, a doctor would monitor an electronic device showing the 24 inmate's vital signs throughout a single-drug execution and determine when the inmate has 25 expired. 26 In addition, during a single-drug execution, pancuronium bromide and potassium chloride 27 would not be administered. The portions of the current regulations concerning the administration 28 of those chemicals would not be adhered to during such an execution. 1 Defs.' Responses to Court's Inquiries (C 06-0219 IF) Excerpts of Record - 258

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1 IL THE AMOUNT OF NOTICE THAT WOULD BE NECESSARY TO PERFORM AN EXECUTION WITH A SINGLE DRUG. 2 3 The current regulations provide that three days before a scheduled execution, the execution

4 team leader must "activate all members of the Lethal Injection Team and schedule daily training 5 and preparedness exercises on each of the three days prior to the scheduled execution." Cal. 6 Code Regs. tit. 15, § 3349.3.6(b)(1) (2010). 7 If the State were to perform an execution with a single drug, Defendants would prefer that 8 the execution team have three days' notice. That amount of notice would enable the team to 9 conduct daily training and preparedness exercises during the three days before the execution as 10 the current regulations envision.

11 Dated: September 22, 2010 Respectfully Submitted,

12 EDMUND G. BROWN JR. Attorney General of California 13 ROCHELLE C. EAST Senior Assistant Attorney General 14 THOMAS S. PATTERSON Supervising Deputy Attorney General 15 16 17 MICHAEL J. .18 Deputy Attorney General Attorneys for Defendants Schwarzenegger, 19 Cate and Cullen SF2007200210 20 .40464603 .doc 21 22 23 24 25 26 27 28 2 Defs.' Responses to Court's Inquiries (C 06-0219 JF) Excerpts of Record - 259

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CERTIFICATE OF SERVICE

Case Name: Michael Angelo Morales v. No. C 06-0219 JF James Tilton, et al.

I hereby certify that on September 22, 2010, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: DEFENDANTS' RESPONSES TO COURT'S INQUIRIES

Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. On September 22, 2010, I have mailed the foregoing document(s) by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within three (3) calendar days to the following non-CM/ECF participants:

Habeas Corpus Resource Center Janice H. Lam 303 Second Street, Suite 400 South Jenner & Block San Francisco, CA 94107 One IBM Plaza Chicago, IL 60611

Michael G. Millman Office of the Inspector General California Appellate Project P.O. Box 348780 101 Second St., Suite 600 Sacramento, CA 95834 San Francisco, CA 94105

Stephanie L. Reinhart Jenner & Block One IBM Plaza Chicago, IL 60611

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on September22,2010, at San Francisco, California.

M. M. Argarin Declarant igna e

40464745 .doc

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1 David A. Senior (SBN 108759) MCBREEN & SENIOR 2 2029 Century Park East, Third Floor Los Angeles, California 90067 3 Phone: (310) 552-5300 Fax: (310) 552-1205 4 [email protected]

5 John R. Grele (SBN 167080) LAW OFFICE OF JOHN R. GRELE 149 Natoma Street, 3rd Floor 6 San Francisco, California 94105 Phone: (415) 348-9300 7 Fax: (415) 348-0364 [email protected] 8 Richard P. Steinken (admitted PHV) 9 JENNER & BLOCK 353 N. Clark Street 10 Chicago, IL 60654 Phone: (312) 923-2938 11 Fax: (312) 840-7338 [email protected] 12 Attorneys for Intervenor 13 ALBERT GREENWOOD BROWN

14 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION

16 MICHAEL ANGELO MORALES, CASE NO. C 06 0219 (JF) (RS) 17 C 06-0926 (JF) (RS) Plaintiff, 18 vs. 19 APPLICATION FOR ORDER 20 JAMES E. TILTON, Acting Secretary of the SHORTENING TIME; DECLARATION California Department of Corrections; OF DAVID A. SENIOR 21 ROBERT L. AYERS, Acting Warden, San Quentin State Prison, San Quentin, CA; and DATE: September 21, 2010 22 DOES 1-50, TIME: 3:00 p.m. PLACE: Courtroom 3 23 Defendants. 24

25 Albert Greenwood Brown hereby applies for an Order Shortening Time for the 26 filing of a Motion to Intervene and a Motion for Stay of Execution to be heard by this Court on 27 September 21, 2010 at 3:00 p.m. or as soon thereafter as he may be heard. The hearing of this 28

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1 motion on shortened time is necessary because a regularly noticed motion would not allow 2 sufficient time for the motion to be heard prior to Brown’s execution, which is scheduled for 3 September 29, 2010. 4 This application is made pursuant to Federal Rule of Civil Procedure 6(c)(1)(C), 5 Northern District Local Rule 7-10, and Northern District Local Rule 6-3. 6 Brown is seeking to intervene in the present action pursuant to Rule 24(b) of the 7 Federal Rules of Civil Procedure, because he “has a claim or defense that shares with the main 8 action a common question of law or fact.” Id. Brown seeks an Order Shortening Time to

9 present his Motion to Intervene and Motion for Stay of Execution so that this Court can 10 consider the merits of his claims arising under the Eighth and Fourteenth Amendments to the 11 United States Constitution and 42 U.S.C. § 1983.

12 Brown further seeks a stay of his scheduled September 29, 2010 execution date. 13 Without a stay, Brown faces a substantial risk of suffering cruel and unusual capital 14 punishment. See Morales v. Tilton, 465 F. Supp. 2d 972, 981 (N.D. Cal. 2006). 15 Substantial harm will result if Brown’s Motion to Intervene and Motion for Stay

MCBREEN & SENIOR 16 of Execution are not heard on shortened time because his scheduled execution will take place Telephone: (310) 552-5300 Los Angeles, California 90067 before a regularly noticed motion can be heard.

2029 Century Park East, Third Floor 17 18 19 DATED: September 15, 2010

20 By: ___/s/______21 David A. Senior McBREEN &SENIOR 22 Richard P. Steinken 23 JENNER & BLOCK

24 John R. Grele LAW OFFICE OF JOHN R. GRELE 25 Attorneys for Intervenor 26 ALBERT GREENWOOD BROWN

27 28

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1 DECLARATION OF DAVID A. SENIOR 2 I, David A. Senior, declare and state: 3 1. I am a member of the law firm of McBreen & Senior. Albert Greenwood 4 Brown has requested representation in the above-captioned action. This declaration is 5 submitted in support of Albert Greenwood Brown’s Application for Order Shortening Time 6 submitted herewith to have his Motion to Intervene and Motion for Stay of Execution heard by 7 this Court on September 21, 2010 at 3:00 p.m. 8 2. I have attempted to obtain defendants’ stipulation to allow this motion to be 9 heard on September 21, 2010 at 3:00 p.m. at the same time this Court has scheduled a status 10 conference. As of the time of this filing, a stipulation could not be obtained. 11 3. Albert Greenwood Brown seeks an Order Shortening Time to present his 12 Motion to Intervene and Motion for Stay of Execution so that he may present his case for this 13 Court’s consideration of the merits of his claims arising under the Eighth and Fourteenth 14 Amendments to the United States Constitution and 42 U.S.C. § 1983. 15 4. Substantial harm will result if Brown’s Motion to Intervene and Motion for Stay

16 of Execution are not heard on shortened time because his scheduled execution will take place MCBREEN & SENIOR Telephone: (310) 552-5300 Los Angeles, California 90067 17 before a regularly noticed motion can be heard. 2029 Century Park East, Third Floor 18 5. No previous time modifications have been requested by Brown in this case. 19 6. The requested shortening of time will not affect the schedule of the case.

20

21 The undersigned hereby certifies that the Application for Order Shortening Time is 22 made in good faith and for good cause. 23

24 Executed on September 15, 2010. 25 By: /s/ DAVID A. SENIOR 26 27 28

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7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 9 MICHAEL ANGELO MORALES, CASE NO. C 06 0219 (JF) (RS) 10 C 06-0926 (JF) (RS) Plaintiff, 11 vs. 12 [PROPOSED] ORDER SHORTENING JAMES E. TILTON, Acting Secretary of the TIME 13 California Department of Corrections; ROBERT L. AYERS, Acting Warden, San 14 Quentin State Prison, San Quentin, CA; and DATE: September 21, 2010 DOES 1-50, TIME: 3:00 p.m. 15 PLACE: Courtroom 3 Defendants. 16

17 Based on the foregoing Application for Order Shortening Time, and good cause 18 appearing, it is ordered, adjudged, and decreed that Albert Greenwood Brown’s Motion to 19 Intervene and Motion for Stay of Execution shall be heard on September 21, 2010 at 3:00 p.m.

20 IT IS SO ORDERED.

21 DATED: September __, 2010 22 JEREMY FOGEL 23 United States District Judge

24 25 26 27 28

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1 David A. Senior (# 108759) McBreen & Senior 2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 3 Phone: (310) 552-5300 Fax: (310) 552-1205 4 [email protected] 5 John R. Grele (# 167080) Law Offices of John R. Grele 6 703 Market Street, Suite 550 San Francisco, CA 94103 7 Phone: (415) 348-9300 Fax: (415) 348-0364 8 [email protected] 9 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP 10 330 N. Wabash Avenue Chicago, IL 60611-7603 11 Phone: (312) 923-2938 Fax: (312) 840-7338 12 [email protected] 13 Attorneys for Plaintiff MICHAEL ANGELO MORALES

14 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION

16 MICHAEL ANGELO MORALES, ) Case No. C 06-0219 (JF) 17 ) C 06-0926 (JF) Plaintiff, ) 18 ) THIRD AMENDED COMPLAINT FOR ) EQUITABLE AND INJUNCTIVE 19 ) RELIEF [42 U.S.C. § 1983] v. ) 20 ) JAMES TILTON, Secretary of the California ) 21 Department of Corrections; ROBERT AYERS, ) 22 Warden, San Quentin State Prison, San Quentin, ) CA; ARNOLD SCHWARZENGGER, ) 23 Governor of the State of California; and DOES ) 1-50, 24 Defendants. ) ) 25

26

27

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1 NATURE OF ACTION 2 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of 3 the right of Plaintiff to be free from cruel and unusual punishment under the Eighth and Fourteenth 4 Amendments of the United States Constitution. Plaintiff seeks temporary, preliminary, and 5 permanent injunctive relief to prevent the Defendants from executing Plaintiff by means of lethal 6 injection, as that method of execution is currently used in California. Plaintiff contends that lethal 7 injection, as performed in California, unnecessarily risks infliction of pain and suffering. Plaintiff 8 further contends that the use of pancuronium bromide, a paralytic agent that acts as a chemical veil 9 over the lethal injection process, disguises the pain and suffering to which he will be subjected. 10 Plaintiff additionally contends that Defendants, as a result of their deliberate failure to use medically 11 approved procedures and properly trained personnel, have inflicted pain and torture on several 12 executed prisoners in the past, making Plaintiff certain he will suffer the same fate unless Defendants 13 adopt a humane and safe execution protocol.

14 JURISDICTION AND VENUE 15 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil 16 rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This action arises under the 17 Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983. 18 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that Plaintiff is currently incarcerated at 19 San Quentin State Prison (“San Quentin”) in San Quentin, California, located in this District. All

20 executions conducted by the State of California (“State”) occur at San Quentin. The events giving 21 rise to this complaint have occurred and will occur in this District.

22 THE PARTIES 23 4. Plaintiff Michael Angelo Morales is a United States citizen and a resident of the State. He is 24 currently a death-sentenced prisoner under the supervision of the California Department of 25 Corrections and Rehabilitation (CDCR). He is held at San Quentin State Prison, San Quentin, 26 California, 94974. 27 5. Defendant James Tilton is the Secretary of the CDCR.

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1 6. Defendant Robert Ayers is the Warden of San Quentin State Prison, where the Plaintiff is 2 incarcerated and where the Plaintiff’s execution will occur. 3 7. Defendant Arnold Schwarzenegger is the Governor of the State of California. 4 8. Plaintiff is ignorant of the true names of Does 1-50 but alleges that they have or will 5 participate in Plaintiff’s execution by virtue of their roles in designing, implementing, and/or carrying 6 out the lethal injection process. When Plaintiff discovers the Doe Defendants’ true identities, he will 7 amend his complaint accordingly.

8 GENERAL ALLEGATIONS 9 9. On January 6, 2006, the clerk of the Superior Court of Ventura County issued a Notice of 10 Public Session in the case of People v. Morales, No. CR 17960, scheduling a public session on 11 January 18, 2006 for the purpose of the setting of the date of execution of judgment of death of 12 February 21, 2006. 13 10. Under California law, death sentences shall be carried out by “administration of a lethal gas 14 or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause 15 death, by standards established under the direction of the Department of Corrections.” Cal. Penal 16 Code § 3604(a). The statute prescribes no specific drugs, dosages, drug combinations, or the manner 17 of intravenous line access to be used in the execution process; nor does the statute prescribe any 18 certification, training, or licensure required of those who participate in the execution process. All of 19 the details of the execution process are to be determined by the CDCR.

20 11. The CDCR has decided to execute Plaintiff by poisoning him with a lethal combination of 21 three chemical substances: sodium pentothal, a short-acting barbiturate; pancuronium bromide, which 22 paralyzes all voluntary muscles; and potassium chloride, an extremely painful chemical which 23 activates the nerve fibers lining the prisoner’s veins and interferes with the heart’s contractions, 24 causing cardiac arrest. 25 12. In performing Plaintiff’s execution by lethal injection, the CDCR will follow the protocol 26 established in San Quentin Operational Procedure No. 770, as well as certain practices not delineated 27 in the protocol. The protocol and actual practice by which lethal injection executions are performed

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1 under Procedure No. 770 violates constitutional and statutory provisions enacted to prevent cruelty, 2 pain, and torture. 3 13. The remote administration of the chemical substances, the absence of standardized procedures 4 for administration of the chemicals, the lack of adequate training, screening and qualifications of the 5 personnel involved in the process, and the combination and amounts of the three particular chemicals 6 used in Procedure No. 770 create a grave and substantial risk that Plaintiff will not be adequately 7 unconscious during the execution process and, as a result, will experience an excruciatingly painful 8 and protracted death. This risk has been realized in at least six of the previous seven executions and 9 in nine executions total. 10 14. Procedure No. 770 lacks medically necessary safeguards, thus increasing the risk that Plaintiff 11 will suffer unnecessary pain during the lethal injection process. For example, there is no 12 standardized administration of each of the three chemicals. The protocol identifies no procedures for 13 ensuring that the anesthetic agent is properly flowing into the prisoner, and it identifies no 14 appropriate procedures or personnel for ensuring that the prisoner is properly sedated prior to the 15 administration of the lethal chemicals as required by the Eighth Amendment and as would be 16 required in any medical or veterinary procedure after administration of a sedative and before the 17 administration of a neuromuscular blocking agent, such as pancuronium bromide, or the 18 administration of a painful potassium chloride overdose. 19 15. The protocol established in Procedure No. 770 does not establish any minimum qualifications

20 required of the personnel who perform all of the tasks in the lethal injection process, and none exist. 21 Nor does it require the minimum expertise that would be necessary to ensure proper performance of 22 the tasks in the lethal injection procedure. There are no guidelines or customary procedures upon 23 which these personnel can rely if they are required to exercise their discretion during the process. 24 There is no plan in place if the Plaintiff requires medical assistance during the execution. Nor is there 25 any procedure, personnel or equipment available for obtaining access to Plaintiff’s veins should the 26 procedure described in Procedure No. 770 become difficult or impossible to accomplish, as has 27 recently been the case in several executions.

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1 16. Sodium pentothal is an ultra short-acting barbiturate that is usually administered only during 2 the preliminary phase of anesthesia administration, and never administered remotely in the manner 3 proposed. There is a reasonable likelihood that sodium pentothal will be ineffectively delivered, 4 given the inadequacy of the administration procedures and the personnel involved, and as a result 5 will not provide a sufficient sedative effect for the duration of the execution process. This has 6 actually occurred in many California executions and in executions in other states. Without adequate 7 sedation, Plaintiff will experience the conscious asphyxiation caused by pancuronium bromide and 8 the excruciatingly painful internal burning sensation and cardiac arrest caused by a potassium 9 chloride overdose. 10 17. The American Veterinary Medical Association (AVMA) states that when potassium chloride 11 is used for euthanasia, it is extremely important for the personnel who perform euthanasia to be 12 trained and knowledgeable in anesthetic techniques and competent in assessing the anesthetic depth 13 appropriate for potassium chloride administration, a depth at which animals are in a surgical plane of 14 anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of 15 response to noxious stimuli. California law requires non-veterinary personnel who perform animal 16 euthanasia to undergo strict training by a veterinarian and/or a registered veterinary technician who 17 specializes in anesthesia. California law does not permit non-veterinary personnel to perform 18 euthanasia using potassium chloride or neuromuscular blockers; rather, such personnel are limited to 19 using a lethal overdose of barbiturates such as pentobarbital. The Department of Correction’s lethal

20 injection protocol under Procedure No. 770 does not include comparable protections or require 21 comparable training, and thus a procedure under that protocol would be illegal if performed on 22 animals. 23 18. The AVMA also employs a longer-lasting and more stable barbiturate, sodium pentobarbital, 24 for animal euthanasia. The CDCR’s use of sodium pentothal knowingly exacerbates the risk of error 25 created by its deficient protocol because sodium pentothal is extremely volatile, short-acting, and 26 sensitive to human error, and because CDCR makes no determination of a suitable level for any 27

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1 particular inmate, despite this being a required procedure for administration of a sedative to all 2 humans and animals for any purpose 3 19. Pancuronium bromide, the second chemical administered in the lethal injection process, 4 paralyzes voluntary muscles, including the diaphragm, but it does not affect consciousness or the 5 perception of pain. A similar paralytic agent has been used by CDCR in the past to torture prisoners 6 as part of its behavioral modification programs. Pancuronium bromide, administered by itself as a 7 “lethal dose,” would not result in a quick death; instead, it would cause someone to suffocate to death 8 while still conscious. The use of pancuronium bromide as administered under the CDCR’s lethal 9 injection protocol in combination with the initial dose of sodium pentothal, increases the risk that 10 Plaintiff will become paralyzed while still aware of pain and suffering death from the burning veins 11 and heart failure caused by the administration of the potassium chloride. Pancuronium bromide 12 unnecessarily increases the risk that a prisoner will be paralyzed during the injection of an extremely 13 painful drug, aware of this pain, yet be entirely unable to inform the attendants of his condition. 14 Without the use of pancuronium bromide, a prisoner would be able to indicate that he was still 15 conscious or had regained consciousness or awareness prior to the administration of potassium 16 chloride. Properly trained and qualified personnel would be able to assess unconsciousness, which 17 CDCR personnel at present cannot and do not do and thus are unable to determine whether a prisoner 18 is aware of or feeling pain at the time the pancuronium bromide is administered, or if the 19 administration causes the prisoner to become able enough to sense the pain from pancuronium

20 bromide and, then, potassium chloride. 21 20. Because the CDCR’s protocol calls for the potassium chloride to be administered in a lethal 22 dose, the use of pancuronium bromide will serve no purpose in the execution process. It is 23 completely unnecessary in the lethal injection process and will only serve to mask any pain or 24 suffering that the Plaintiff may experience. 25 21. Pancuronium bromide could not lawfully be used alone as the fatal agent because causing 26 death by suffocation violates the Eighth Amendment’s prohibition against cruel and unusual 27 punishment.

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1 THE DEVELOPMENT OF THE CURRENT VERSION OF PROCEDURE NO. 770

2 22. The version of Procedure No. 770, under which Defendants originally intended to execute 3 Plaintiff, was adopted without any medical research or review to ensure that a prisoner would not 4 suffer a painful death. No member of the medical community was involved in its adoption. The 5 procedure was adopted by the former Warden of San Quentin, Daniel Vasquez, after observing two 6 executions in Texas, without any further input from or consultation with medical personnel. The 7 procedure was not subsequently subjected to any review by medical professionals or other qualified 8 persons to assess if it was an appropriate procedure or if it was being administered in a manner that 9 either caused or prevented unnecessary infliction of pain and suffering. In fact, evidence 10 demonstrated that Procedure No. 770 as administered was not properly sedating executed inmates, as 11 a result of which they were aware of and suffering from pain. Defendants knew this, yet undertook 12 no appropriate review or revisions of their procedures. 13 23. On February 14, 2006, the District Court for the Northern District of California found that 14 Plaintiff had raised “substantial questions” that the 2003 protocol “creates an undue risk that Plaintiff 15 will suffer excessive pain when he is executed.” Order Denying Conditionally Plaintiff’s Motion for 16 Preliminary Injunction, at 13 (February 14, 2006). The District Court therefore suggested that 17 Defendants “conduct a thorough review of the lethal-injection protocol, including, inter alia, the 18 manner in which the drugs are injected, the means used to determine when the person being executed 19 has lost consciousness and the quality of contemporaneous records of executions, such as execution

20 logs and electrocardiograms. . . . A proactive approach by Defendants would go a long way towards 21 maintaining judicial and public confidence in the integrity and effectiveness of the protocol.” Id. at 22 12-13. 23 24. In light of the substantial possibility that Plaintiff would suffer excruciating pain as he was 24 executed, the District Court held that Defendants could proceed to execute Plaintiff only if they 25 implemented one of two proposed modifications of the execution procedure. Id. at 13-14. 26 Defendants could either certify that they would execute Plaintiff using only sodium pentothal or 27 another barbiturate; or procure the assistance of “qualified individual or individuals” to provide

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1 “independent verification” that Plaintiff was in fact unconscious prior to the administration of the 2 pancuronium bromide and potassium chloride. Id. at 13-15. 3 25. Defendants determined that satisfactorily “qualified individuals” would in fact be medical 4 doctors, and in particular board certified anesthesiologists, to allow Defendants to “ensure that 5 [Plaintiff] [was] unconscious at all times following the administration of sodium thiopental.” 6 Notwithstanding, Defendants did not go forward with the scheduled 12:01 a.m. execution on 7 February 21, 2006. 8 26. Later that day, Defendants returned to the District Court and advised that they then believed 9 that the most suitable manner to execute Plaintiff was by administering only a single lethal dose of 10 sodium thiopental or other barbiturate, and they sought permission to perform the execution at 7:30 11 p.m. on February 21, 2006 in this manner. The District Court issued an order allowing the execution 12 to proceed so long as “sodium thiopental [was] injected in the execution chamber directly into the 13 intravenous cannula by a person or persons licensed by the State of California to inject medications 14 intravenously.” Order on Defendants’ Motion to Proceed with Execution, at 3 (February 21, 2006). 15 Defendants declined to comply with the District Court’s order, and the execution did not go forward. 16 27. Because Defendants did not comply with the District Court’s Orders, by the terms of the 17 February 14, 2006 Order, a stay of execution automatically was entered on February 21, 2006. 18 28. Following the events of February 21, 2006, Defendants modified the execution protocol, and 19 these modifications were incorporated in a new version of Procedure No. 770, dated March 6, 2006.

20 According to Defendants, the changes to the protocol were made after consultation with unidentified 21 “court experts,” and in part reflected deviations from the 2003 version of the protocol that had been 22 sanctioned by the Defendants but had not previously been formally adopted as revisions to the 23 protocol, or recorded in the contemporaneous records of executions. Defendants, however, rejected 24 their own expert’s recommendation to use a single barbiturate as the sole lethal agent. This rejection 25 was grounded in two blatantly invalid considerations: no other state uses a barbiturate as the sole 26 lethal agent; and discontinuance of the use of pancuronium would eliminate the cosmetic appearance 27 of a serene execution that is achieved by paralyzing the inmate. The direction by Defendant

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1 Schwarzenegger to CDCR merely was to “tweak” the previous versions of OP 770, and to provide 2 for less sedative. 3 29. The March 6, 2006 version of Procedure No. 770, as well as Defendants’ stated intention to 4 follow the new version, was substantially similar to the 2003 version in all material respects relating 5 to the manner in which the chemicals are administered. The March 6, 2006 version employed the 6 same three chemicals, injected in the same sequence, and using the same remote administration, but 7 Defendants – after purported consultation with “experts” – determined to use a lower initial dose of 8 sodium pentothal, a lower dose of pancuronium bromide, and a higher dose of potassium chloride. 9 The only material difference between the 2003 version of the protocol and the March 6, 2006 version 10 is that, in addition to an initial bolus dose of 1.5 grams of sodium pentothal, the March 6 version 11 provided that a continuous drip of five grams of sodium pentothal would be begun in a second IV 12 line after the initial dose of sodium pentothal is administered. Shortly after the drip is begun, a saline 13 flush was to be sent through the first IV line and the pancuronium and potassium were to be injected. 14 30. The March 6, 2006 version of Procedure No. 770 utterly failed to address the “substantial 15 questions” raised by Plaintiff, and recognized by the District Court, regarding the significant risk that 16 Plaintiff will suffer excruciating pain during the execution. Among other things, the March 6, 2006 17 version of Procedure No. 770, like the 2003 version, failed to provide any procedure for ensuring that 18 the inmate is in an appropriate surgical plane of anesthesia prior to the administration of the 19 pancuronium bromide; failed to provide for any training to be given to the injection personnel; failed

20 to require any level of experience or other qualifications for such personnel; failed to ensure that an 21 adequate dose of anesthesia is able to reach the prisoner; and failed to provide procedures for 22 obtaining IV access should the inmate have unusable peripheral veins. Moreover, because the design 23 of the execution chamber remained the same, and the March 6, 2006 version of the protocol made no 24 material changes in the equipment used to administer the drugs, it did not alleviate the need to use 25 multiple IV extensions or other conditions that have caused the drug administration problems that 26 plagued the previous executions. 27

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1 31. Indeed, the March 6, 2006 version of Procedure No. 770 was even more deficient than the old 2 version. The additional deficiencies included, but were not limited to, the fact that Defendants’ 3 purported experts determined that much less sodium pentothal should be administered to the inmate, 4 even assuming proper administration by the execution team resulting in the full dose of pentothal 5 reaching the prisoner. This significantly decreased dose of sodium pentothal drastically lowered the 6 margin of error in administering the anesthesia and increased the probability that the inmate would 7 not be placed in an appropriate surgical plane of anesthesia. 8 32. Defendants, relying on the advice of their selected expert, deliberately chose to lower the dose 9 of anesthetic in the belief that the previously used five-gram dose of sodium pentothal rendered 10 inmates “too unconscious” for the potassium chloride to cause death as quickly as it would otherwise. 11 Moreover, by their own admission, Defendants deliberately increased the risk of excessive suffering 12 in order to ensure that executions are carried out as quickly as possible. 13 33. Defendants’ failure to address the substantial questions as to the significant risk of 14 excruciating pain created by the original version of Procedure No. 770, even after the experience of 15 recent executions during which indicia of inadequate sedation were present, and even after the 16 District Court recognized the seriousness and substantial nature of the risk, amounted to conscious 17 disregard of Plaintiffs’ constitutional right to be free from cruel and unusual punishment. Indeed, on 18 March 6, 2006, after obtaining the advice of, inter alia, Robert Singler, M.D. and at the direction of 19 Andrea Hoch, Legal Affairs Secretary of Governor Arnold Schwarzenegger, Defendants purposefully

20 rendered the execution procedure more dangerous without any rational reason for doing so. 21 34. Defendants’ creation of the March 6, 2006 version of Procedure No. 770 in the space of a 22 mere thirteen days, without consultation with any members of the medical community or other 23 experts – besides the unnamed “court experts” and/or Robert Singler, M.D. – further evidenced 24 Defendants’ deliberate disregard of Plaintiff’s Eighth Amendment rights. Defendants flagrantly 25 ignored the District Court’s suggestion that they conduct a “thorough” review of the execution 26 procedures. As a result, Defendants substituted a different version of Procedure No. 770 that simply 27

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1 perpetuated the deficiencies in the previous version and exacerbated the already-significant risk of 2 inadequate anesthesia. 3 35. After undertaking a review of the execution protocol, including the composition and training 4 of the execution team, the equipment and apparatus used in executions, the pharmacology and 5 pharmacokinetics of the drugs involved, and the available documentary and anecdotal evidence 6 concerning executions in California, on December 15, 2006, the District Court found that 7 Defendants’ Procedure 770 as actually administered in practice violated the Eighth Amendment. 8 36. Defendants immediately vowed to implement yet another review, evaluation, and revision of 9 Procedure 770. Defendant Schwarzenegger directed the revision be undertaken by his Legal Affairs 10 Secretary, Andrea Hoch. 11 37. Before conducting another review, evaluation, and revision of Procedure 770, Defendants 12 announced that this complete undertaking would be completed in less than 120 days, or by May 15, 13 2007. Defendants concluded that they would limit their review, evaluation, and revisions to only five 14 issues that they contend are raised in the District Court’s December 15, 2006 order, despite that 15 order’s express notation that it was not meant as an exhaustive recitation of the failings of 16 Defendants’ procedures. 17 38. Defendant CDCR appointed K. W. Prunty, Jr., Undersecretary Operations of the CDCR, and 18 “the attorneys” to revise the procedure. Prunty reports to James Tilton, the CDCR Secretary. Tilton 19 never has read the District Court’s December 15, 2006 order, and he admittedly is not “an expert” on

20 the Procedure. 21 39. After commencing its review, Defendant CDCR requested additional time to determine and 22 make any necessary revisions. Defendant Schwarzenegger denied the CDCR’s request and insisted 23 that the self-imposed and blindly created May 15, 2007 deadline be adhered to. Defendants 24 submitted a revised Procedure 770 to the District Court on May 15, 2007. 25 40. While on February 16, 2006, Defendants unilaterally determined that the most “qualified 26 individuals” to “ensure that [Plaintiff] [was] unconscious at all times following the administration of 27 sodium thiopental” would in fact be medical doctors, and in particular board certified

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1 anesthesiologists, and in the space of two days did obtain two such medical professionals, Defendants 2 now have concluded that this is not the case. Defendants’ new Procedure makes no such provision 3 for qualified medical doctors to perform this complex task, or to perform or monitor any other tasks 4 associated with planning for or conducting executions. Nor have Defendants made provisions to 5 have a doctor perform a central line catheterization if necessary, despite Defendants’ knowledge that 6 some inmates will require a central line to avoid unsuccessful drug administration, and that central 7 line placement requires extensive medical training. 8 41. The May 15, 2007 version of Procedure No. 770 provides for an “assessment” of 9 consciousness to be performed by an Intravenous Team Member. This assessment does not 10 constitute effective monitoring of anesthetic depth, and will not be sufficient to ascertain whether the 11 inmate is placed into, and remains in, a surgical plane of anesthesia. 12 42. On February 21, 2006, Defendants unilaterally determined that, because Procedure 770 13 prevents them from ensuring that Plaintiff will be unconscious at all times following the 14 administration of sodium thiopental, a preferred method of execution would be to use only sodium 15 thiopental or another barbiturate or combination of barbiturates during Plaintiff's execution. 16 43. Subsequent to February 21, 2006, Dr. Mark Dershwitz, one of the medical experts retained by 17 Defendants to defend their protocol in this action and in previous lethal-injection challenges, has 18 advised several states, including those with which Defendants have exchanged execution-related 19 information, that using a single barbiturate as the sole lethal agent would be an easier, less complex,

20 and less dangerous means of accomplishing executions. Despite their knowledge of this advice, and 21 despite Defendants’ conclusions on February 21, 2006, regarding the single-drug protocol, 22 Defendants failed to give serious consideration to the use of a single-drug protocol, even though they 23 still have no reliable method to ensure that Plaintiff will be unconscious at all times following the 24 administration of sodium thiopental. Defendants’ new Procedure intends to make use of a 25 complicated three drug protocol involving the use of two excruciatingly painful drugs when improper 26 sedation occurs. 27

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1 44. Before reviewing, evaluating, and/or revising its March 6, 2006 execution Procedure, 2 Defendants decided in January 2007 to build a new execution facility. The design and construction 3 of the new facility derived from the provisions of the March 6, 2006 execution Procedure, the latest 4 version of Procedure No. 770 then in existence, as the later announced May 15, 2007 version of the 5 procedure had not yet been created, reviewed, evaluated, and/or revised. 6 45. Defendants fraudulently claimed that the execution chamber could be designed and 7 constructed from discretionary budgeting, that a new execution chamber had been ordered to be built 8 by the District Court, and that the District Court ordered that construction be completed by May 15, 9 2007. Defendants’ tactics were an effort to avoid mandatory state legislative oversight and to obtain 10 a permanent lethal injection facility so as to justify a multi-million dollar expansion of death row at 11 San Quentin. Defendants thereafter designed and commenced construction of the chamber before 12 they had begun or finished their review, evaluation, and/or revisions to Procedure 770. Defendant 13 Tilton, the lead official in the CDCR later claimed he was not advised of this decision to build a new 14 chamber, or of the commencement of the construction of this facility. 15 46. On April 13, 2007, when Defendants’ fraudulent budgeting activities came to light, 16 Defendants backdated a budgeting request to January, 2007, and submitted same for legislative 17 consideration. On or about April 21, 2007, Defendant Schwarzenegger ordered that the construction 18 be stopped. 19 47. The May 15, 2007 version of Procedure No. 770, as well as Defendants’ stated intention to

20 follow the new version, is substantially similar to the 2003 version in all material respects relating to 21 the manner in which the chemicals are administered. The May 15, 2007 version employs the same 22 three chemicals, injected in the same sequence, but Defendants determined to use a greater initial 23 dose of sodium pentothal than the March 6, 2006 Procedure, but a smaller dose than was used in the 24 2003 version, a greater dose of pancuronium bromide , and a lower dose of potassium chloride. 25 48. The May 15, 2007 version of Procedure No. 770 utterly fails to even examine the many 26 “substantial questions” raised by Plaintiff, and recognized by the District Court, regarding the 27 significant risk that Plaintiff will suffer excruciating pain during the execution. Among other things,

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1 the May 15, 2007 version of Procedure No. 770, like its predecessor March 6, 2006 and 2003 2 versions, fails to provide any adequate procedure and personnel for ensuring that the inmate is in an 3 appropriate surgical plane of anesthesia prior to the administration of the pancuronium bromide and 4 remains in a surgical plane of anesthesia for the duration of the execution; fails to provide for any 5 training to be given to the personnel involved; fails to require any level of experience or other 6 qualifications for such personnel; fails to provide for any mechanism to ensure that an adequate dose 7 of anesthesia is able to reach the prisoner; fails to provide guidelines for detecting and remedying the 8 foreseeable problems that could occur and that have recently caused botched executions in several 9 other states, or to ensure that personnel are sufficiently trained and qualified to exercise their 10 judgment in such situations; fails to ensure an appropriate delivery mechanism for any of the three 11 chemicals, and fails to provide procedures for obtaining IV access should the inmate have unusable 12 peripheral veins. The Procedure was prepared and submitted without an execution chamber to 13 provide any reference or concept. 14 49. Indeed, the May 15, 2007 version of Procedure No. 770 is even more ill-conceived and 15 deficient than the older versions. The additional deficiencies include, but are not limited to, the fact 16 that Defendants determined that much less sodium pentothal should be administered to the inmate 17 than that which was supposed to have been administered to inmates in all past executions, even 18 assuming proper administration by the execution team resulting in the full dose of pentothal reaching 19 the prisoner. This significantly decreased dose of sodium pentothal drastically lowers the margin for

20 error in administering the anesthesia and increases the probability that the inmate will not be placed 21 in an appropriate surgical plane of anesthesia. 22 50. Defendants – in conjunction with the advice of their selected experts – deliberately chose to 23 lower the dose of anesthetic in the belief that the previously used five-gram dose of sodium pentothal 24 rendered inmates “too unconscious” for the potassium chloride to cause death as quickly as it would 25 otherwise. Defendants were aware that such a theory was ill-conceived, medically unsound and 26 unsupported by the records in previous executions. Moreover, by their own admission, Defendants 27

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1 deliberately increased the risk of excessive suffering in order to ensure that executions are carried out 2 as quickly as possible. 3 51. Defendants’ failure to address the substantial questions regarding the significant risk of 4 excruciating pain created by the original version of Procedure No. 770, even after the experience of 5 several recent executions during which indicia of inadequate sedation were present, and even after 6 the District Court recognized the seriousness and substantial nature of the risk, amounts to conscious 7 disregard of Plaintiffs’ constitutional right to be free from cruel and unusual punishment. 8 Defendants have flagrantly disregarded their January 16, 2007 representations to the District Court 9 that they intended to conduct a careful review, revision, and implementation of their execution 10 procedures. As a result, Defendants substituted a different version of Procedure No. 770 that simply 11 perpetuated the deficiencies in the previous version and exacerbates the already-significant risk of 12 inadequate anesthesia.

13 COUNT I 14 VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH 15 AMENDMENTS TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983) 16 52. Plaintiff realleges and incorporates by reference the allegations contained in paragraphs 1 17 through 51. 18 53. Defendants James Tilton, Robert Ayers, and Arnold Schwarzenegger, and Doe Defendants 19 are acting under color of California law in causing to be administered to Plaintiff chemicals that will 20 cause unnecessary pain in the execution of a sentence of death, thereby depriving Plaintiff of his 21 rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, 22 in violation of 42 U.S.C. § 1983. 23 54. The CDCR’s Procedure No. 770, which specifies the State’s lethal injection protocol, and the 24 Defendants’ actual practice of implementing the protocol violates Plaintiff’s rights under the cruel 25 and unusual punishment clause of the Eighth Amendment because (a) the protocol creates the 26 unreasonable and unacceptable risk of unnecessary physical and psychological pain; (b) the protocol 27

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1 does not comport with contemporary norms and standards of society; and (c) the protocol offends the 2 dignity of the person and society. 3 55. The CDCR’s lethal injection protocol requires utilization of three dangerous chemicals but 4 does not ensure that the personnel entrusted with the lethal injection procedure possess the proper and 5 necessary training, experience, or expertise to administer those drugs. Moreover, the protocol fails to 6 provide specific guidelines for the administration of the three separate chemicals, which is an 7 essential requirement for their proper administration. 8 56. Procedure No. 770 contains little or no description of the training, credentials, certifications, 9 experience, or proficiency required of any personnel involved in the administration of the lethal 10 injection procedure, notwithstanding the fact that it is a complex medical procedure requiring a great 11 deal of expertise in order to be performed correctly. For example, Procedure No. 770 does not 12 require at the execution the presence of any personnel who possess sufficient expertise to insert an 13 intravenous line properly in all situations, determine if there is a blockage in the intravenous line, or 14 evaluate whether a prisoner is properly sedated before proceeding with the painful parts of the 15 execution process. Nor is it Defendants’ actual practice to require the participation of such 16 personnel. 17 57. The absence of such trained personnel greatly increases the risk that a prisoner would not 18 receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and 19 then experience the painful internal burn of the potassium chloride. The execution logs of California

20 prisoners, and the recent experiences in other states which utilize similar protocols, suggest that many 21 executed prisoners did not receive enough sedative prior to the administration of pancuronium 22 bromide. Moreover, toxicology reports from prisoners executed by other states suggest that some 23 prisoners likely remained conscious during the administration of lethal drugs, which could have 24 occurred because of improper insertion of the intravenous line, an unrecognized blockage in the line, 25 or various other reasons. The factors contributing to the likelihood that prisoners in other states were 26 executed while conscious are present in Procedure No. 770 and the actual practice of CDCR in 27 implementing it.

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1 58. Inducing and maintaining a sufficient level of unconsciousness by correctly administering 2 sodium pentothal is indispensable to preventing the wanton infliction of unnecessary pain when the 3 potassium chloride overdose is administered. Procedure No. 770, however, does nothing to ensure 4 such a level of unconsciousness. Nor does the protocol provide guidelines for ensuring that an 5 inmate is deeply anesthetized prior to injecting the second two drugs, or establish procedures for 6 determining when an additional dose of sodium pentothal should be administered. 7 59. Defendants’ decision to reject their own experts’ opinion that a single sedative should be 8 employed, and their decision to maintain the remote administration of the three drugs without 9 anesthetic monitoring despite evidence that such administration was not effectively sedating inmates, 10 and Defendants’ blind adherence to a procedure that lacks necessary medical safeguards and 11 personnel, despite evidence that such a process has resulted in a substantial and unnecessary risk of 12 undue pain and suffering in past executions and in the executions undertaken by other jurisdictions, 13 constitutes a deliberate decision to disregard the substantial and unnecessary risk of undue pain and 14 suffering in the Procedure as outlined and as employed. 15 60. The CDCR’s lethal injection protocol and practices fail to address any reasonably foreseeable 16 complications with any appropriate medical response, such as difficulty obtaining access to a 17 peripheral vein, or damage to such veins as a result of repeated failed attempts to insert the catheter. 18 Moreover, the protocol and practices include no safeguards that would protect the prisoner in the 19 event a stay of execution is entered or a reprieve granted immediately before or after the lethal

20 injection process has begun. Thus, the protocol and actual practices fail to provide any protections to 21 prevent a prisoner from being wrongly executed should a reprieve or stay be granted after the process 22 has begun but before death has occurred. 23 61. At any time before the potassium chloride is administered, the prisoner could be readily 24 resuscitated if trained personnel and routine resuscitation medication and equipment were present at 25 the execution site. Even after the potassium chloride is administered, resuscitation would still be 26 possible, although admittedly it would be more challenging. Any resuscitation, however, would 27 require the close proximity of the necessary equipment, medication, and properly trained personnel.

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1 The omission of such personnel and equipment under the protocol set forth in Procedure No. 770 2 further undermines the constitutionality of the procedure. 3 62. Although it is possible to conduct executions in a constitutionally compliant manner, the 4 Department of Corrections has deliberately chosen not to do so. The CDCR could choose to use 5 different chemicals that do not cause pain and therefore do not carry extraordinarily grave 6 consequences to a condemned inmate if not properly administered, as all veterinary euthanasia does. 7 Instead, the CDCR has knowingly and recklessly chosen to use chemicals that will subject the inmate 8 to excruciating pain in the likely event of administration error. Moreover, it has not taken 9 precautions to ensure that the personnel who are involved in the process, including the preparation 10 and administration of the lethal injection chemicals, possess the training, experience, and expertise 11 needed to administer those chemicals properly. Thus, while it is possible for the CDCR to choose 12 different lethal injection chemicals and/or retain qualified personnel to administer its chosen 13 chemicals in order to ensure the constitutionality of its lethal injection procedure, the CDCR 14 purposefully has not done so. 15 63. These numerous deficiencies in the CDCR’s lethal injection protocol are the direct result of 16 Defendants’ conscious disregard of the significant risk that the execution procedure will result in the 17 wanton and unnecessary infliction of extreme pain.

18 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF 19 64. The use of pancuronium bromide under the protocol established in Procedure No. 770 to 20 paralyze Plaintiff greatly increases the risk that an inadequately sedated prisoner will be subjected to 21 a painful and protracted death, and will in fact cause such an unnecessarily painful death. Moreover, 22 it serves no legitimate penological purpose. 23 65. Pancuronium bromide does not play a legitimate role in killing the condemned person. The 24 execution protocol provides that potassium chloride kills the condemned. The administration of 25 pancuronium bromide cannot be justified on the grounds that the drug paralyzes the breathing 26 muscles because death by asphyxiation is itself a form of cruel and unusual punishment under the 27 Eighth Amendment.

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1 66. Enjoining the administration of pancuronium bromide will have no appreciable impact on 2 California correctional institution procedures. If anything, it will simplify the execution process by 3 eliminating one step in the process. 4 67. The question of whether there exist readily available alternatives to pancuronium bromide is 5 not an issue in this case because paralyzing a condemned inmate in the execution process is not a 6 legitimate penological goal. 7 68. The Ninth Circuit and this Court have previously held that Defendants and their predecessors, 8 in order to forestall discussion and criticism of California’s lethal injection procedure, have 9 implemented restrictions on the execution process in order to prevent witnesses from being aware of 10 complications experienced during the procedure. 11 69. The CDCR’s failure to require sufficient training, credentials, certification, experience, or 12 proficiency of the personnel involved in the administration of the lethal injection procedure greatly 13 increases the risk that a prisoner will experience excruciating pain as a result of the suffocation 14 caused by the pancuronium bromide and the painful internal burn and cardiac arrest caused by a 15 potassium chloride overdose. Employing untrained personnel to perform executions exacerbates the 16 risks created by the deficiencies in the protocol and the methods and circumstances of drug 17 administration, because untrained personnel will be unable to react to and remedy problems that arise 18 during an execution. Allowing untrained personnel to develop deviations from the protocol that 19 become customary practices also increases the risk of inhumane executions due to the lack of vetting

20 by qualified experts and the danger that execution team turnover will lead to confusion as to how to 21 perform the execution. 22 70. Allowing personnel who lack sufficient training, credentials, certification, experience, or 23 proficiency to conduct the lethal injection procedure does not play a legitimate role in killing the 24 condemned person. Suffocation while inadequately sedated or otherwise aware, as caused by the 25 administration of pancuronium bromide, violates the Eighth Amendment because death by 26 asphyxiation is itself a form of cruel and unusual punishment. Similarly, internal burning and cardiac 27

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1 arrest while insufficiently sedated or otherwise aware, as caused by a potassium chloride overdose, 2 constitute unnecessary physical and psychological pain in violation of the Eighth Amendment. 3 71. If Plaintiff suffers unnecessary pain, he will have no alternative “reasonable and effective 4 means of communication” to communicate the fact that he was not properly anesthetized because he 5 will be unable to do so and the pancuronium bromide will paralyze him and he will be dead at the 6 conclusion of the procedure. 7 72. Enjoining the administration of the lethal injection procedure by personnel who lack 8 sufficient training, credentials, certification, experience, or proficiency will have no appreciable 9 impact on the correctional institution. 10 73. The question of whether there exist readily available alternatives to requiring personnel who 11 possess sufficient training, credentials, certification, experience, or proficiency to conduct the lethal 12 injection procedure is not an issue in this case because causing a prisoner who has not been properly 13 anaesthetized as a result of administration error to experience excruciating pain from the conscious 14 suffocation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused 15 by a potassium chloride overdose is not a legitimate penological goal. 16 74. CDCR’s continued use of remote administration of the three-drug cocktail without 17 sufficient means of ensuring adequate sedation throughout the procedure greatly increases the risk 18 that a prisoner will experience excruciating pain as a result of the suffocation caused by the 19 pancuronium bromide and the painful internal burn and cardiac arrest caused by a potassium chloride

20 overdose. Enjoining the use of remote administration of the three-drug cocktail without sufficient 21 safeguards will have no appreciable impact on the correctional institution. The question of whether 22 there exist readily-available alternatives to employing emote administration of the three-drug cocktail 23 without sufficient safeguards because needlessly exposing inmates to an unreasonable risk of 24 excruciating pain is not a legitimate penological goal. 25 / / 26 27

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1 EXHAUSTION ALLEGATIONS 2 75. On January 9, 2006, Plaintiff filed an inmate appeal on CDC Form 602 alleging that his 3 execution under the lethal injection protocol of the CDCR would constitute cruel and unusual 4 punishment. Plaintiff asked that his appeal be processed as an emergency appeal pursuant to 15 Cal. 5 Code Regs. § 3084.7 on the ground that the State of California shortly intended to seek his execution 6 date. On or about January 27, 2006, the Director’s Level Appeal Decision was issued, which stated 7 that “no further relief shall be afforded the appellate at the Director’s Level of Review.” The 8 decision stated that “This decision exhausts the administrative remedy available to the appellant 9 within CDCR.” 10 76. Notwithstanding his filing of an appeal on CDC Form 602, Plaintiff is not required to exhaust 11 administrative remedies before bringing this claim because resolution of the grievance seeking 12 modification of Procedure No. 770 is not possible through the appeal process and exhaustion is futile. 13 77. On November 24, 2004, Donald J. Beardslee, San Quentin Inmate No. C-82702, raised a 14 challenge similar to Plaintiff’s claim here when he filed two inmate appeals on CDC Form 602 15 alleging that the Department of Correction’s lethal injection procedure violated his rights under the 16 First and Eighth Amendments to the United States Constitution. After being considered on an 17 emergency basis, the appeals were first denied by the Warden and then denied by the Director of the 18 Department of Corrections on Third Level Review. In denying Beardslee’s appeal, the Director’s 19 Level Appeal Decision stated that Beardslee’s “sentence and penalty were established by court in

20 California; therefore relief at the Director’s Level of Review cannot be afforded the appellant.” 21 Administrative review therefore cannot resolve any of the issues raised in Plaintiff’s appeal. 22 78. Moreover, pursuit of administrative review is futile for additional reasons. In subsequent 23 proceedings in Beardslee’s case, the Court of Appeals for the Ninth Circuit observed that “by 24 regulation the California Department of Corrections does not permit challenges to anticipated 25 action[s]. 15 Cal. Code Regs. § 3084.3(c)(3).” Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th 26 Cir. 2005). Thus, no administrative challenge to the lethal injection protocol is possible here. 27

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1 79. Plaintiff’s challenge to the lethal injection protocol that the CDCR intends to use to execute 2 him is ripe for adjudication now. 3 PRAYER FOR RELIEF

4 WHEREFORE, Michael Angelo Morales prays for:

5 1. Temporary, preliminary, and permanent injunctive relief to enjoin the Defendants, 6 their officers, agents, servants, employees, and all persons acting in concert with them from 7 executing Plaintiff by lethal injection using Procedure No. 770 and the practices associated with the 8 protocol; 9 2. In the event that Procedure No. 770 is not enjoined in its entirety as violating the 10 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to 11 12 enjoin Defendants, their officers, agents, servants, employees, and all persons acting in concert with 13 them from administering pancuronium bromide and potassium chloride during the execution process;

14 3. In the event that Procedure No. 770 is not enjoined in its entirety as violating the

15 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to 16 enjoin Defendants, their officers, agents, servants, employees, and all persons acting in concert with 17 them from allowing personnel who lack sufficient training, credentials, certification, experience, or 18 proficiency to conduct the lethal injection procedure; 19 4. Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of the United 20 States; 21 22 5. Costs of suit; and

23 6. Any such other relief as the Court deems just and proper. 24 25 26

27

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1 MICHAEL ANGELO MORALES Dated: July 2, 2007 2

3 By: /s/ Benjamin D. Weston . 4 One of his attorneys David A. Senior (# 108759) 5 Benjamin D. Weston (#240641) McBreen & Senior 6 1880 Century Park East, Suite 1450 7 Los Angeles, CA 90067 Phone: (310) 552-5300 8 Fax: (310) 552-1205 [email protected] 9 John R. Grele (# 167080) 10 Law Offices of John R. Grele 703 Market Street, Suite 550 11 San Francisco, CA 94103 Phone: (415) 348-9300 12 Fax: (415) 348-0364 13 [email protected] 14 Richard P. Steinken (admitted pro hac vice) Stephanie L. Reinhart (admitted pro hac vice) 15 Jenner & Block LLP 330 N. Wabash Avenue 16 Chicago, IL 60611-7603 Phone: (312) 923-2938 17 Fax: (312) 840-7338 18 [email protected]

19 Ginger D. Anders (admitted pro hac vice) Jenner & Block LLP 20 601 Thirteenth Street, NW Suite 1200 South 21 Washington DC 20005-3823 Phone: (202) 639-6000 22 Fax: (202) 639-6066 23 [email protected]

24

25

26

27

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1 David A. Senior (# 108759) McBreen & Senior 2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 3 Phone: (310) 552-5300 Fax: (310) 552-1205 4 [email protected] 5 John R. Grele (# 167080) Law Offices of John R. Grele 6 703 Market Street, Suite 550 San Francisco, CA 94103 7 Phone: (415) 348-9300 Fax: (415) 348-0364 8 [email protected] 9 Richard P. Steinken Jenner & Block LLP 10 One IBM Plaza Chicago, IL 60611-7603 11 Phone: (312) 923-2938 Fax: (312) 840-7338 12 [email protected] 13 Attorneys For Plaintiff MICHAEL ANGELO MORALES 14 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 15 MICHAEL ANGELO MORALES, ) Case No. 16 ) Plaintiff, ) COMPLAINT FOR EQUITABLE AND 17 ) INJUNCTIVE RELIEF 18 ) [42 U.S.C. § 1983] ) 19 v. ) ) 20 RODERICK Q. HICKMAN, Secretary of the ) EXECUTION IMMINENT: California Department of Corrections; STEVEN ) EXPEDITED REVIEW REQUESTED 21 ORNOSKI, Warden, San Quentin State Prison, ) San Quentin, CA; and DOES 1-50, ) 22 ) 23 Defendants. ) ) 24 25 26 27 28 1 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Excerpts of Record - 288 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, DocumentID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 2 281 of 14 of 297

1 NATURE OF ACTION 2 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of 3 the right of plaintiff to be free from cruel and unusual punishment under the Eighth and Fourteenth 4 Amendments of the United States Constitution. Plaintiff seeks temporary, preliminary, and 5 permanent injunctive relief to prevent the defendants from executing plaintiff by means of lethal 6 injection, as that method of execution is currently used in California. Plaintiff contends that lethal 7 injection, as performed in California, unnecessarily risks infliction of pain and suffering. Plaintiff 8 further contends that the use of pancuronium bromide, a paralytic agent that acts as a chemical veil 9 over the lethal injection process, disguises the pain and suffering to which he will be subjected. 10 Plaintiff additionally contends that defendants, as a result of their failure to use medically approved 11 procedures and properly trained personnel, have inflicted pain and torture on several executed 12 prisoners in the past, making plaintiff certain he will suffer the same fate unless defendants adopt a 13 humane and safe execution protocol. 14 JURISDICTION AND VENUE 15 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil 16 rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This action arises under the 17 Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983. 18 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that plaintiff is currently incarcerated at 19 San Quentin State Prison (“San Quentin”) in San Quentin, California, located in this District. All 20 executions conducted by the State of California (“State”) occur at San Quentin. The events giving 21 rise to this complaint have occurred and will occur in this District. 22 23 THE PARTIES 24 4. Plaintiff Michael Angelo Morales is a United States citizen and a resident of the State. He is 25 currently a death-sentenced prisoner under the supervision of the California Department of 26 Corrections. He is held at San Quentin State Prison, San Quentin, California, 94974. 27 5. Defendant Roderick Q. Hickman is the Secretary of the California Department of Corrections. 28 2 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 289 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, DocumentID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 3 282 of 14 of 297

1 6. Defendant Steven Ornoski is the Warden of San Quentin State Prison, where the plaintiff is 2 incarcerated and where the plaintiff’s execution is scheduled to occur. 3 7. Plaintiff is ignorant of the true names of Does 1-50 but alleges that they have or will 4 participate in plaintiff’s execution by virtue of their roles in designing, implementing, and/or carrying 5 out the lethal injection process. When plaintiff discovers the Doe Defendants’ true identities, he will 6 amend his complaint accordingly. 7 GENERAL ALLEGATIONS 8 8. On January 6, 2006, the clerk of the Superior Court of Ventura County issued a Notice of 9 Public Session in the case of People v. Morales, No. CR 17960, scheduling a public session on 10 January 31, 2006 for the purpose of the setting of the date of execution of judgment of death of 11 February 21, 2006. 12 9. Under California law, death sentences shall be carried out by “administration of a lethal gas 13 or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause 14 death, by standards established under the direction of the Department of Corrections.” Cal. Penal 15 Code § 3604(a). The statute prescribes no specific drugs, dosages, drug combinations, or the manner 16 of intravenous line access to be used in the execution process; nor does the statute prescribe any 17 certification, training, or licensure required of those who participate in the execution process. All of 18 the details of the execution process are to be determined by the Department of Corrections. 19 10. The Department of Corrections has decided to execute plaintiff by poisoning him with a lethal 20 combination of three chemical substances: sodium pentothal, a short-acting barbiturate; pancuronium 21 bromide, which paralyzes all voluntary muscles; and potassium chloride, an extremely painful 22 chemical which activates the nerve fibers lining the prisoner’s veins and interferes with the heart’s 23 contractions, causing cardiac arrest. 24 11. In performing plaintiff’s execution by lethal injection, the Department of Corrections will 25 follow the protocol established in San Quentin Operational Procedure No. 770. The protocol by 26 which lethal injection executions are performed under Procedure No. 770 violates constitutional and 27 statutory provisions enacted to prevent cruelty, pain, and torture. 28 3 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 290 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, DocumentID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 4 283 of 14 of 297

1 12. Procedure No. 770 was adopted without any medical research or review to determine that a 2 prisoner would not suffer a painful death. No member of the medical community was involved in its 3 adoption. The procedure was adopted by the former Warden of San Quentin, Daniel Vasquez, after 4 observing two executions in Texas, without any input from or consultation with medical personnel. 5 13. The absence of standardized procedures for administration of the chemicals, the lack of 6 qualifications of the personnel involved in the process, and the combination of the three particular 7 chemicals used in Procedure No. 770 create a grave and substantial risk that plaintiff will be 8 conscious throughout the execution process and, as a result, will experience an excruciatingly painful 9 and protracted death. 10 14. Procedure No. 770 lacks medically necessary safeguards, thus increasing the risk that plaintiff 11 will suffer unnecessary pain during the lethal injection process. There is no standardized time to 12 administer each of the three chemicals. The protocol identifies no procedures for ensuring that the 13 anesthetic agent is properly flowing into the prisoner, and it identifies no procedures for ensuring that 14 the prisoner is properly sedated prior to the administration of the lethal chemicals as would be 15 required in any medical or veterinary procedure before the administration of a neuromuscular 16 blocking agent, such as pancuronium bromide, or the administration of a painful potassium chloride 17 overdose. 18 15. The protocol established in Procedure No. 770 does not establish any minimum qualifications 19 or expertise required of the personnel who perform all of the tasks in the lethal injection process. 20 There are no guidelines upon which these personnel can rely if they are required to exercise their 21 discretion during the process. The protocol has no plan in place if the plaintiff requires medical 22 assistance during the execution. 23 16. Sodium pentothal, in an ordinary clinical dose, is a very short-acting barbiturate that is 24 usually administered only during the preliminary phase of anesthesia administration. There is a 25 reasonable likelihood that sodium pentothal, if ineffectively delivered (which is particularly likely 26 given the inadequacy of the administration procedures under Procedure No. 770), will not provide a 27 sedative effect for the duration of the execution process. Without adequate sedation, plaintiff will 28 4 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 291 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, DocumentID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 5 284 of 14 of 297

1 experience excruciating pain as a result of the conscious asphyxiation caused by pancuronium 2 bromide and the painful internal burn and cardiac arrest caused by a potassium chloride overdose. 3 17. Pancuronium bromide, the second chemical administered in the lethal injection process, 4 paralyzes voluntary muscles, including the diaphragm, but it does not affect consciousness or the 5 perception of pain. Pancuronium bromide, administered by itself as a “lethal dose,” would not result 6 in a quick death; instead, it would ultimately cause someone to suffocate to death while still 7 conscious. There is no indication in the Department of Correction’s lethal injection protocol, 8 however, that pancuronium bromide is used to cause death. It therefore is completely unnecessary in 9 the lethal injection process and only serves to mask any pain or suffering that the plaintiff may 10 experience. 11 18. Pancuronium bromide could not lawfully be used alone as the fatal agent because causing 12 death by suffocation violates the Eighth Amendment’s prohibition against cruel and unusual 13 punishment. 14 COUNT I 15 VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH 16 AMENDMENTS TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983) 17 19. Plaintiff realleges and incorporates by reference the allegations contained in paragraphs 1 18 through 18. 19 20. Defendants Roderick Q. Hickman, Steven Ornoski, and Doe Defendants are acting under 20 color of California law in causing to be administered to plaintiff chemicals that will cause 21 unnecessary pain in the execution of a sentence of death, thereby depriving plaintiff of his rights 22 under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in 23 violation of 42 U.S.C. § 1983. 24 21. The California Department of Corrections Procedure No. 770, which specifies the State’s 25 lethal injection protocol, violates plaintiff’s rights under the cruel and unusual punishment clause of 26 the Eighth Amendment because (a) the protocol creates the unreasonable and unacceptable risk of 27 28 5 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 292 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, DocumentID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 6 285 of 14 of 297

1 unnecessary physical and psychological pain; (b) the protocol does not comport with contemporary 2 norms and standards of society; and (c) the protocol offends the dignity of the person and society. 3 22. The Department of Correction’s lethal injection protocol requires utilization of three 4 dangerous chemicals but does not ensure that the personnel entrusted with the lethal injection 5 procedure possess the proper and necessary training, experience, or expertise to administer those 6 drugs. Moreover, the protocol fails to specify any timing for the administration of the three separate 7 chemicals, which is an essential requirement for their proper administration. 8 23. The use of pancuronium bromide as administered under the Department of Correction’s lethal 9 injection protocol increases the risk that the use of this chemical, in combination with the initial dose 10 of sodium pentothal, will result in plaintiff being paralyzed but conscious and suffering death from 11 the burning veins and heart failure caused by the administration of the potassium chloride. 12 Moreover, because the Department of Correction’s protocol calls for the potassium chloride to be 13 administered in a lethal dose, the use of pancuronium bromide serves no purpose in the execution 14 process. Pancuronium bromide unnecessarily increases the risk that a conscious prisoner will be 15 paralyzed during the injection of an extremely painful drug, yet be entirely unable to inform the 16 attendants of his condition. Without the use of pancuronium bromide, a prisoner would be able to 17 indicate that he was still conscious prior to the administration of potassium chloride. This is 18 particularly crucial because the Department of Correction’s protocol indicates that the prisoner will 19 be alone in a room when he is executed, making it impossible to determine whether a prisoner is 20 conscious once he is paralyzed by the pancuronium bromide. 21 24. The American Veterinary Medical Association (AVMA) states that a combination of a 22 barbiturate and a neuromuscular blocking agent such as pancuronium bromide, a combination similar 23 to that called for by Procedure No. 770, is not an acceptable euthanasia method for animals when 24 used alone. 25 25. Sodium pentothal, which is an extremely fast-acting but not long-lasting barbiturate in an 26 ordinary clinical dose, is used as the anesthetic agent in the Department of Correction’s lethal 27 injection procedure. In veterinary medicine, sodium phenobarbital, a somewhat slower-acting but 28 6 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 293 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, DocumentID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 7 286 of 14 of 297

1 longer-lasting barbiturate, is used for animal euthanasia. The AVMA states that when potassium 2 chloride is used for euthanasia, it is extremely important for the personnel who perform euthanasia to 3 be trained and knowledgeable in anesthetic techniques and competent in assessing the anesthetic 4 depth appropriate for potassium chloride administration, a depth at which animals are in a surgical 5 plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of 6 response to noxious stimuli. California law requires non-veterinary personnel who perform animal 7 euthanasia to undergo strict training by a veterinarian and/or a registered veterinary technician who 8 specializes in anesthesia. The Department of Correction’s lethal injection protocol under Procedure 9 No. 770 includes no comparable requirement; in fact, it does not require any training of the personnel 10 who use the same drug in executing prisoners. 11 26. The Department of Correction’s lethal injection procedure fails to address the individual 12 prisoner’s medical condition and history. Several regularly prescribed drugs at San Quentin interfere 13 with the ability of sodium pentothal to act properly as an anesthetic. Moreover, the lethal injection 14 protocol allows for prisoners to take Valium shortly before the execution, a drug which can also 15 interfere with the sodium pentothal’s effectiveness. 16 27. Procedure No. 770 contains no description of the training, credentials, certifications, 17 experience, or proficiency required of any personnel involved in the administration of the lethal 18 injection procedure, notwithstanding the fact that it is a complex medical procedure requiring a great 19 deal of expertise in order to be performed correctly. For example, Procedure No. 770 does not 20 require at the execution the presence of any personnel who possess sufficient expertise to insert an 21 intravenous line properly, determine if there is a blockage in the intravenous line, or evaluate whether 22 a prisoner is properly sedated before proceeding with the painful parts of the execution process. 23 28. The absence of such trained personnel greatly increases the risk that a prisoner would not 24 receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and 25 then experience the painful internal burn of the potassium chloride. Toxicology reports from 26 prisoners executed by other states suggest that some prisoners likely remained conscious during the 27 28 7 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 294 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, DocumentID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 8 287 of 14 of 297

1 administration of lethal drugs, which could have occurred because of improper insertion of the 2 intravenous line, an unrecognized blockage in the line, or various other reasons. 3 29. Inducing unconsciousness by correctly administering sodium pentothal is indispensable to 4 preventing the wanton infliction of pain when the potassium chloride overdose is administered. 5 Procedure No. 770, however, does not require the preparation of backup syringes of sodium 6 pentothal. 7 30. The Department of Correction’s lethal injection protocol fails to address any reasonably 8 foreseeable complications with any appropriate medical response. Moreover, the protocol includes 9 no safeguards that would protect the prisoner in the event a stay of execution is entered after the 10 lethal injection process has begun. Thus, the protocol fails to provide any protections to prevent a 11 prisoner from being wrongly executed should a reprieve be granted after the process has begun but 12 before death has occurred. 13 31. At any time before the potassium chloride is administered, the prisoner could be readily 14 resuscitated if trained personnel and routine resuscitation medication and equipment were present at 15 the execution site. Even after the potassium chloride is administered, resuscitation would still be 16 possible, although admittedly it would be more challenging. Any resuscitation, however, would 17 require the close proximity of the necessary equipment, medication, and properly trained personnel. 18 The omission of such personnel and equipment under the protocol set forth in Procedure No. 770 19 further undermines the constitutionality of the procedure. 20 32. Although it is possible to conduct executions in a constitutionally compliant manner, the 21 Department of Corrections has chosen not to do so. The Department of Corrections could choose to 22 use different chemicals that pose a low risk of administration error yet do not cause extraordinarily 23 grave consequences to a condemned inmate if not properly administered; instead, it has knowingly or 24 recklessly chosen to use chemicals that pose a high risk of administration error. Moreover, it has not 25 taken precautions to ensure that the personnel who administer the lethal injection chemicals possess 26 the training, experience, and expertise needed to administer those chemicals properly. Thus, while it 27 is possible for the Department of Corrections to choose different lethal injection chemicals and/or 28 8 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 295 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, DocumentID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 9 288 of 14 of 297

1 retain qualified personnel to administer its chosen chemicals in order to ensure the constitutionality 2 of its lethal injection procedure, the Department of Corrections has not done so. 3 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF 4 33. The use of pancuronium bromide under the protocol established in Procedure No. 770 to 5 paralyze plaintiff greatly increases the risk that a conscious prisoner will be subjected to a painful and 6 protracted death. Moreover, it serves no legitimate penological purpose. 7 34. Pancuronium bromide does not play a legitimate role in killing the condemned person. The 8 execution protocol provides that potassium chloride kills the condemned. The administration of 9 pancuronium bromide cannot be justified on the grounds that the drug paralyzes the breathing 10 muscles because death by asphyxiation is itself a form of cruel and unusual punishment under the 11 Eighth Amendment. 12 35. If pancuronium bromide is administered, paralyzing plaintiff during the execution procedure, 13 he will have no alternative “reasonable and effective means of communication” to communicate that 14 he was not properly anaesthetized because he will be dead at the conclusion of the procedure. 15 36. Enjoining the administration of pancuronium bromide will have no appreciable impact on 16 California correctional institution procedures. If anything, it will simplify the execution process by 17 eliminating one step in the process. 18 37. The question of whether there exist readily available alternatives to pancuronium bromide is 19 not an issue in this case because paralyzing a condemned inmate in the execution process is not a 20 legitimate penological goal. 21 38. The Ninth Circuit and this Court have previously held that Defendants and their predecessors, 22 in order to forestall discussion and criticism of California’s lethal injection procedure, have 23 implemented restrictions on the execution process in order to prevent witnesses from being aware of 24 complications experienced during the procedure. 25 39. The Department of Correction’s failure to require sufficient training, credentials, certification, 26 experience, or proficiency of the personnel involved in the administration of the lethal injection 27 procedure greatly increases the risk that a conscious prisoner will experience excruciating pain as a 28 9 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 296 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 10 289 of 14of 297

1 result of the conscious suffocation caused by the pancuronium bromide and the painful internal burn 2 and cardiac arrest caused by a potassium chloride overdose. Moreover, it serves no legitimate 3 penological purpose. 4 40. Allowing personnel who lack sufficient training, credentials, certification, experience, or 5 proficiency to conduct the lethal injection procedure does not play a legitimate role in killing the 6 condemned person. Conscious suffocation, as caused by the administration of pancuronium bromide, 7 violates the Eighth Amendment because death by asphyxiation is itself a form of cruel and unusual 8 punishment. Similarly, conscious internal burning and cardiac arrest, as caused by a potassium 9 chloride overdose, constitute unnecessary physical and psychological pain in violation of the Eighth 10 Amendment. 11 41. If plaintiff remains conscious during the administration of the pancuronium bromide and 12 potassium chloride, he will have no alternative “reasonable and effective means of communication” 13 to communicate the fact that he was not properly anaesthetized because the pancuronium bromide 14 will paralyze him and he will be dead at the conclusion of the procedure. 15 42. Enjoining the administration of the lethal injection procedure by personnel who lack 16 sufficient training, credentials, certification, experience, or proficiency will have no appreciable 17 impact on the correctional institution. 18 43. The question of whether there exist readily available alternatives to requiring personnel who 19 possess sufficient training, credentials, certification, experience, or proficiency to conduct the lethal 20 injection procedure is not an issue in this case because causing a prisoner who has not been properly 21 anaesthetized as a result of administration error to experience excruciating pain from the conscious 22 suffocation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused 23 by a potassium chloride overdose is not a legitimate penological goal. 24 EXHAUSTION ALLEGATIONS 25 44. On January 9, 2006, plaintiff filed an inmate appeal on CDC Form 602 alleging that his 26 execution under the lethal injection protocol of the California Department of Corrections would 27 constitute cruel and unusual punishment. A copy of the Form 602 is attached hereto as Exhibit A. 28 10 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 297 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 11 290 of 14of 297

1 Plaintiff asked that his appeal be processed as an emergency appeal pursuant to 15 Cal. Code Regs. 2 § 3084.7 on the ground that the State of California shortly intended to seek his execution date. 3 Plaintiff’s claim has not yet been ruled upon. 4 45. Notwithstanding his filing of an appeal on CDC Form 602, Plaintiff is not required to exhaust 5 administrative remedies before bringing this claim because resolution of the grievance seeking 6 modification of Procedure No. 770 is not possible through the appeal process and exhaustion is futile. 7 46. On November 24, 2004, Donald J. Beardslee, San Quentin Inmate No. C-82702, raised a 8 challenge similar to plaintiff’s claim here when he filed two inmate appeals on CDC Form 602 9 alleging that the Department of Correction’s lethal injection procedure violated his rights under the 10 First and Eighth Amendments to the United States Constitution. After being considered on an 11 emergency basis, the appeals were first denied by the Warden and then denied by the Director of the 12 Department of Corrections on Third Level Review. In denying Beardslee’s appeal, the Director’s 13 Level Appeal Decision stated that Beardslee’s “sentence and penalty were established by court in 14 California; therefore relief at the Director’s Level of Review cannot be afforded the appellant.” 15 Administrative review therefore cannot resolve any of the issues raised in plaintiff’s appeal. 16 47. Moreover, pursuit of administrative review is futile for additional reasons. In subsequent 17 proceedings in Beardslee’s case, the Court of Appeals for the Ninth Circuit observed that “by 18 regulation the California Department of Corrections does not permit challenges to anticipated 19 action[s]. 15 Cal. Code Regs. § 3084.3(c)(3).” Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th 20 Cir. 2005). Thus, no administrative challenge to the lethal injection protocol is possible here. 21 48. Plaintiff’s challenge to the lethal injection protocol that the Department of Corrections intends 22 to use to execute him is ripe for adjudication now. 23 PRAYER FOR RELIEF

24 WHEREFORE, Michael Angelo Morales prays for:

25 1. Temporary, preliminary, and permanent injunctive relief to enjoin the defendants,

26 their officers, agents, servants, employees, and all persons acting in concert with them from 27 executing plaintiff by lethal injection using Procedure No. 770; 28 11 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 298 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 12 291 of 14of 297

1 2. In the event that Procedure No. 770 is not enjoined in its entirety as violating the

2 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to

3 enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with

4 them from administering pancuronium bromide during the execution process; 5 3. In the event that Procedure No. 770 is not enjoined in its entirety as violating the 6 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to 7 enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with 8 them from allowing personnel who lack sufficient training, credentials, certification, experience, or 9 10 proficiency to conduct the lethal injection procedure; 11 4. Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of the United 12 States;

13 5. Costs of suit; and

14 6. Any such other relief as the Court deems just and proper. 15 MICHAEL ANGELO MORALES 16 17 18 By:______One of his attorneys 19 Dated: January 11, 2006 20 David A. Senior (# 108759) 21 McBreen & Senior 1880 Century Park East, Suite 1450 22 Los Angeles, CA 90067 Phone: (310) 552-5300 23 Fax: (310) 552-1205 24 [email protected] 25 26 27 28 12 COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF CHICAGO_1355066_6 Excerpts of Record - 299 Case:Case 18-16547, 3:06-cv-00219-RS 11/21/2018, Document ID: 11096832, 5 Filed DktEntry: 01/20/06 15-2, Page Page 13 292 of 14of 297

1 John R. Grele (# 167080) Law Offices of John R. Grele 2 703 Market Street, Suite 550 San Francisco, CA 94103 3 Phone: (415) 348-9300 Fax: (415) 348-0364 4 [email protected] 5 Richard P. Steinken 6 Benjamin J. Bradford Janice H. Lam 7 Stephanie L. Reinhart Jenner & Block LLP 8 One IBM Plaza Chicago, IL 60611-7603 9 Phone: (312) 923-2938 10 Fax: (312) 840-7338 [email protected] 11 Ginger D. Anders 12 Jenner & Block LLP 601 Thirteenth Street, NW 13 Suite 1200 South Washington DC 20005-3823 14 Phone: (202) 639-6000 Fax: (202) 639-6066 15 [email protected] 16

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1 VERIFICATION

2 I, David A. Senior, hereby declare:

3 1. I am a member of the State Bar of California and admitted to practice before all courts

4 of this state, as well as this Court, the U.S. Court of Appeals for the Ninth Circuit, and the U.S. 5 Supreme Court. I am appointed counsel for Plaintiff Michael Angelo Morales in this matter. I have 6 personal knowledge of the matters set forth in this complaint, except as otherwise indicated, and I 7 could and would competently testify to them if called upon to do so. 8 2. Mr. Morales is in custody and restrained of his liberty in a county other than where my 9 10 office is situated. Additionally, many of the facts alleged herein are more within my knowledge. 11 Therefore, I make this verification on his behalf. 12 3. I have reviewed the foregoing complaint. I verify that all of the alleged facts that are

13 not otherwise supported by citations to the record or declarations to the attached petitions are true and

14 correct to my own knowledge, except as to any matters stated in it on information and belief, which I 15 am informed and believe are true and correct. 16 4. I declare under penalty of perjury under the laws of the State of California and the 17 United States of America that the foregoing is true and correct. 18 Executed on January 11, 2006 in Los Angeles, California. 19 20 21 22 By:______David A. Senior 23 Subscribed and sworn to before me 24 this _____ day of ______. 25 26

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9th Circuit Case Number(s) 18-6547

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