Original Complaint (Glossip vs. Gross)

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 1 of 33
United States District Court

for the Western District of Oklahoma
Charles F. Warner,
James A. Coddington,
Benjamin R. Cole by and
through his next friend
Robert S. Jackson,
CIV-14-665-C
Carlos Cuesta-Rodriguez,
Nicholas A. Davis,
Richard S. Fairchild,
John M. Grant,
Wendell A. Grissom,
Marlon D. Harmon,
Raymond E. Johnson,
Emmanuel A. Littlejohn,
James D. Pavatt,
Kendrick A. Simpson,
Kevin R. Underwood,
Brenda E. Andrew,
Richard E. Glossip,
Shelton D. Jackson,
Phillip D. Hancock,
Julius D. Jones,
Alfred B. Mitchell, and
Tremane Wood,
Plaintiffs,
v.
Kevin J. Gross,
Michael W. Roach,
Steve Burrage,
Gene Haynes,
Frazier Henke
Linda K. Neal
Earnest D. Ware
Robert C. Patton,
Anita K. Trammell,
Doctor X,
Paramedic Y,
Executioner #1,
Executioner #2 and
Executioner #3,
Defendants.
Complaint
1.
Each of the Plaintiffs is under a sentence of death imposed by the

judgment of an Oklahoma court before November 1, 2011.
2.
The Plaintiff Brenda E. Andrew resides within this District in

Pottawatomie County, Oklahoma. Each of the remaining Plaintiffs
resides within Pittsburg County, Oklahoma.
3.
The Plaintiff Benjamin R. Cole is an incompetent person. He sues by

and through his next friend, Robert S. Jackson.
4.
Defendants, Kevin J. Gross, Michael W. Roach, Steve Burrage, Gene

Haynes, Frazier Henke, Linda K. Neal, and Earnest D. Ware are current
members of the Oklahoma Board of Corrections and have an official
residence within this District.
5.
Defendants Gross, Roach, Burrage, Haynes, Henke, Neal, and Ware

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establish policies for the Oklahoma Department of Corrections. Each

acts under color of Oklahoma law, and is sued in official capacity only.
6.
The Defendant Robert C. Patton is Director of the Department of

Corrections of Oklahoma and has an official residence within this
District. He acts under color of Oklahoma law, and is sued in his official
capacity only.
7.
The Defendant Anita K. Trammell is the warden of the Oklahoma State

Penitentiary and an employee of the Department of Corrections of
Oklahoma. She has an official residence within Pittsburg County,
Oklahoma, acts under color of Oklahoma law, and is sued in her official
capacity only.
8.
The Defendant Trammell is assigned by Oklahoma law with the

responsibility to carry out death warrants issued by Oklahoma courts,
including those issued in the Plaintiffs cases.
9.
The Defendant Patton is assigned by Oklahoma law with authority over

execution of all death sentences, and with responsibility to supervise all
activities of the Department of Corrections, including the official
activities of the Defendant Trammell.
10. The Defendants Patton and Trammell plan to execute Plaintiffs using
written procedures set out in Oklahoma State Penitentiary Field
Memorandum No. OSP-040301-01. This Field Memorandum has been
revised and altered repeatedly, most recently on March 21, April 14, and
April 25, 2014.
11. The Field Memorandum mandates participation in each execution by a
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licensed physician. The functions of this official include insertion of

intravenous lines into the condemned person, and performance of cutdown procedures to gain intravenous access to the condemned person.
12. The Defendant Doctor X is the official who has performed and will
perform the functions described in paragraph 11. Doctor X acts under
color of Oklahoma law, and is sued in an official capacity only.
13. The Field Memorandum mandates participation in each execution by an
emergency medical technician/paramedic or person with similar
qualifications and experience in intravenous line (IV) insertion. The
functions of this official include insertion of intravenous lines into the
condemned person.
14. The Defendant Paramedic Y is the official who has performed and will
perform the functions described in paragraph 13. Paramedic Y acts
under color of Oklahoma law, and is sued in an official capacity only.
15. The Field Memorandum mandates participation in each execution by
three persons whose function is to administer lethal drugs to the
condemned person through the intravenous lines established by the
officials identified in paragraphs 11 and 13.
16. The Defendants Executioners #1, #2, and #3 are the officials who have
performed and will perform the functions described in paragraph 15.
Each acts under color of Oklahoma law, and is sued in an official
capacity only.
17. The Plaintiffs are not challenging their convictions or sentences of death
in this action. They are challenging only the way in which their
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sentences of death will be carried out by the Defendants.

18. This Court has subject matter jurisdiction under 28 U.S.C. 1343(a).
19. Exhaustion of administrative remedies is not necessary because this
action does not challenge prison conditions, and because there are no
available administrative remedies capable of addressing the violations of
federal law challenged in this pleading.
20. The Field Memorandum vests the Defendant Trammell with sole
discretion to select the lethal drugs to be used in the Plaintiffs
executions. The Field Memorandum includes an open-ended list of
authorized lethal drugs and procedures.
21. One of the authorized procedures, set out in section IX.C.7.a of the Field
Memorandum, involves use of sodium thiopental, vecuronium bromide
(or a comparable substitute), and potassium chloride.
22. Sodium thiopental is an ultrashort-acting barbiturate.
23. It would be feasible to use sodium thiopental, either alone or in
combination with the remaining agents specified in section IX.C.7.a of
the Field Memorandum, to execute the Plaintiffs. With sound
procedures and properly trained personnel, use of sodium thiopental to
execute the Plaintiffs would be lawful, and would significantly reduce a
substantial risk of severe pain posed by the other drugs identified in this
pleading.
24. Aside from the procedure identified in paragraph 21, the remaining
authorized execution procedures set out in the Field Memorandum do
not make use of sodium thiopental, or any other ultrashort-acting
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barbiturate.
25. Between 1990 and 2010, the combination of drugs set out in section
IX.C.7.a of the Field Memorandum was used in at least 93 Oklahoma
executions.
26. Starting in 2010, the Defendants began to use pentobarbital in lieu of
sodium thiopental to execute condemned persons, as currently
authorized by section IX.C.7.b of the Field Memorandum. The
pentobarbital first used in several executions was in its originally
manufactured form. In more recent executions, however, pentobarbital
was produced by compounding.
27. In the version adopted March 21, 2014, the Field Memorandum
authorized the use of at least three procedures that had never before
been used in Oklahoma.
28. Two of the newly authorized procedures identified in paragraph 27
involved use of midazolam, a drug never before used in any Oklahoma
execution. The midazolam procedures are set out in sections IX.C.7.d
and IX.C.7.e of the Field Memorandum.
29. The Defendants Patton and Trammell have admitted that no experts
were directly consulted in connection with their development of the
procedures set out in the March 21, 2014 version of the Field
Memorandum.
30. On April 1, 2014, the Defendants Patton and Trammell, through their
counsel, notified the now-deceased Clayton D. Lockett and the Plaintiff
Warner that they would be executed by administration of midazolam,
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pancuronium bromide, and potassium chloride, in accordance with

section IX.C.7.e of the Field Memorandum.
31. In the April 1 notice identified in paragraph 30, the Defendants Patton
and Trammell stated that the pancuronium bromide and midazolam
would be compounded by a compounding pharmacy.
32. On April 4, 2014, the Defendants Patton and Trammell countermanded
the April 1 notice with regard to the source of midazolam. According to
the Defendants, the midazolam would now be obtained from [a] source
of manufactured midazolam, while the pancuronium bromide would
remain compounded.
33. On April 11, 2014, the Defendants Patton and Trammell countermanded
the April 1 and April 4 notices with regard to pancuronium bromide.
According to these Defendants, pancuronium bromide would no longer
be used to execute the Plaintiffs. Instead, vecuronium bromide would be
used, and would be obtained from a manufactured source.
34. On April 14, 2014, the Defendants Patton and Trammell changed the
written procedures in section IX.C.7.e of the Field Memorandum, which
had previously been noticed as those that would be used in the
executions of Charles Lockett and the Plaintiff Warner. In the new
procedures, the prescribed concentration of midazolam in each lethal
injection syringe was raised tenfold, from 50mg/100 ml to 50mg/10 ml.
35. On April 25, 2014, the Defendants Patton and Trammell once again
changed the written procedures set out in the Field Memorandum, this
time with an addendum.
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36. On April 29, 2014, the Defendants purportedly used the drugs and
procedures identified in paragraphs 30-35 in an attempt to execute
Clayton Lockett.
37. About 13 minutes after the attempt began, Clayton Lockett began to
speak and roll his head from side to side. Soon, Clayton Locketts body
began to buck and writhe, as if he was trying to raise himself from the
gurney to which the Defendants had bound him. Clayton Lockett next
tried to raise his head and shoulders away from this gurney. As he did
so, he clenched his teeth and grimaced in pain. After enduring 43
minutes of agony, Clayton Lockett was declared dead.
38. The attempted execution identified in paragraphs 36 and 37 inflicted
severe pain, unnecessary suffering, and a lingering death on Clayton
Lockett, and violated the Eighth and Fourteenth Amendments to the
United States Constitution.
39. The attempted execution of Clayton Lockett was the latest in a series of
executions by the Defendants that have violated the Eighth and
Fourteenth Amendments to the United States Constitution by inflicting
severe pain and needless suffering. Other such violations have occurred
during the executions of Robyn L. Parks, Scott D. Carpenter, Loyd W.
LaFevers, and Michael L. Wilson.
Count 1 - Eighth Amendment - Lockett Drugs and Procedures.
40. There is a real and immediate threat that the Defendants will attempt
to execute the Plaintiffs using the same drugs and procedures used in
the attempted execution of Clayton Lockett, or with similarly untried,
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untested, and unsound drugs and procedures.

41. There is a substantial risk that use of the drugs and procedures
identified in paragraph 36 will produce severe pain, needless suffering,
and a lingering death for the Plaintiffs. This risk is illustrated by the
severe pain, needless suffering, and lingering death inflicted by the
Defendants during their attempted execution of Clayton Lockett.
42. The Defendants have acted, and will act, with deliberate indifference to
the risk described in paragraph 41.
43. If attempted executions of the Plaintiffs are allowed to proceed in the
manner described in paragraph 36, the Plaintiffs will be subjected to
cruel and unusual punishment, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution.
Count 2 - Eighth Amendment - Midazolam.
to execute the Plaintiffs using midazolam.
45. The procedure identified in paragraph 30 requires sequential
intravenous injection of 100 milligrams of midazolam, 40 milligrams of
vecuronium bromide or a comparable non-depolarizing neuromuscular
blocking drug of comparable strength, and 200 milliequivalents of
potassium chloride.
46. When administered to an aware individual, 40 milligrams of vecuronium
bromide, or a comparable non-depolarizing neuromuscular blocking drug
of comparable strength, will produce paralysis and a slow and painful
death by asphyxiation. After this agent takes full effect, a person under
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its influence will be unable to communicate the severe pain and needless
suffering being experienced.
47. When administered to an aware individual, 200 milliequivalents of
potassium chloride will produce burning and intense pain as it circulates
through the body, eventually causing death by cardiac arrest.
48. Either of the modes of death described in paragraphs 46 and 47 violates
the Eighth and Fourteenth Amendments to the United States
Constitution, by inflicting severe pain, needless suffering, and a
lingering death.
49. As used in the procedure identified in paragraph 30, midazolam is
incapable of producing a state of unawareness that will be maintained
after either of the other two pain-producing drugs, vecuronium bromide
(or its substitute) and potassium chloride, is injected.
50. One of the characteristics of midazolam is that it cannot relieve pain. A
person who is rendered unaware by midazolam and then subjected to
severe pain will return to awareness and experience that pain. For that
reason, midazolam is not suitable as a stand-alone anesthetic.
51. The domestic suppliers of midazolam have not labeled it for use as a
stand-alone anesthetic.
52. The federal Food and Drug Administration has not approved midazolam
for use as a stand-alone anesthetic.
53. A person subjected to lethal injection with midazolam can suffer severe
pain and be aware of that pain even if that person is unable to
demonstrate the awareness of that pain, owing to paralysis by
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vecuronium bromide, or its substitute.

54. As used in the procedure identified in paragraph 30, the high dosage of
midazolam carries a substantial risk of producing tonic-clonic seizures
and convulsions. Such conditions can result in severe pain and needless
suffering.
55. Use of midazolam to execute the Plaintiffs also carries a substantial risk
of paradoxical reaction, which occurs when a drug does not work as
intended. A paradoxical reaction to midazolam would cause an
individual to remain aware as the execution proceeds. As a result of
remaining aware, such an individual would experience severe pain and
needless suffering as the other injected lethal drugs do their work.
56. There is a substantial risk of paradoxical reaction when midazolam is
administered in high doses to individuals with a history of aggression or
impulsivity, a history of alcohol abuse, or other psychiatric disorders.
These conditions are endemic in Oklahomas death- row population.
57. There is a substantial risk that use of midazolam to execute the
Plaintiffs will produce severe pain, needless suffering, and a lingering
death. This risk is illustrated by the severe pain, needless suffering, and
lingering death inflicted by the Defendants as they attempted to execute
Clayton Lockett using midazolam.
58. By specifying the use of midazolam in executions, and in carrying out
executions with that drug, the Defendants have acted and will act with
deliberate indifference to the risk identified in paragraph 57.
59. If the attempted executions of the Plaintiffs are allowed to proceed with
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the use of midazolam, the Plaintiffs will be subjected to cruel and

unusual punishment, in violation of the Eighth and Fourteenth
Amendments to the United States Constitution.
Count 3 - Eighth Amendment - Compounded Drugs.
to execute the Plaintiffs using one or more drugs that have been
compounded by a compounding pharmacy.
61. American healthcare providers and patients have long relied on the
regulation of pharmaceutical manufacturers by the Food & Drug
Administration in order to set the standard for identity, purity, potency,
and efficacy of prescription medications.
62. Pharmacy compounding is a practice by which a pharmacist combines,
mixes, or alters ingredients in response to a prescription to create a
medication tailored to the medical needs of an individual patient.
63. Compounded drugs are not FDA-approved. This means that the FDA
does not verify the identity, purity, potency, quality, safety, or
effectiveness of compounded drugs. This also means that compounded
drugs lack any FDA finding of manufacturing quality.
64. Drugs that have not have been manufactured in a FDA-registered
facility under current Good Manufacturing Practices, have no assurance
of consistent quality from lot to lot or from container to container.
65. Without FDA approval of a drug and its manufacturing process, there is
no reasonable assurance that the drug has the identity, purity, potency,
and efficacy that it is represented to have.
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66. With compounded drugs, there is a substantial risk that excepient

ingredients and active pharmaceutical ingredients, will be obtained from
non-FDA-approved sources.
67. There is a substantial risk that any compounded drug to be used in the
Plaintiffs executions will lack the identity, purity, potency, and/or
efficacy of its FDA-approved counterpart.
68. There is a substantial risk that use of compounded drugs having the
characteristics identified in paragraph 67 will produce severe pain,
needless suffering, and a lingering death for the Plaintiffs. Specific
harms that can result from use of compounded drugs include lack of
efficacy of the anesthetic drug, due to an ingredient of different identity
than its FDA-approved counterpart. Even if the anesthetic drug is fully
or partially effective, compounded drugs can cause serious harm and
severe pain before loss of awareness. Such harms include painful
pulmonary embolisms resulting from deviations in potency or formation
of precipitates within the body; nausea and vomiting resulting from
deviations in potency; suffocation and gasping for breath; immediate
anaphylactic reactions or other excruciating effects resulting from
contamination with dangerous allergens, bacteria, fungus. or other
impurities; and serious burning pain on injection, as a result of incorrect
pH.
69. The risks identified in paragraphs 67 and 68 were illustrated by the
Defendants execution of Michael L. Wilson on January 9, 2014, using
one or more compounded drugs. Michael Wilsons last words and dying
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declaration, uttered shortly after he was injected with a compounded

drug, were I feel my whole body burning.
70. In procuring drugs that have been compounded, and in carrying out
executions with those drugs, the Defendants have acted and will act
with deliberate indifference to the risks identified in paragraphs 67 and
68.
71. If the attempted executions of the Plaintiffs are allowed to proceed with
the use of compounded drugs, the Plaintiffs will be subjected to cruel
and unusual punishment, in violation of the Eighth and Fourteenth
Count 4 - Eighth Amendment - Unsound Procedures and Inadequate
Training.
to execute the Plaintiffs using the procedures set out in the Field
Memorandum.
73. The Defendants Patton and Trammell lack the expertise needed to
develop procedures that will ensure against severe pain, needless
suffering, and a lingering death in the execution process. Moreover, the
Defendants Patton and Trammell have admitted that experts were not
directly consulted in connection with their development of the
procedures set out in the Field Memorandum. The deliberate failure of
the Defendants Patton and Trammell to seek out expert assistance has
resulted in execution procedures that create a substantial risk of severe
pain, needless suffering, and a lingering death.
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74. Placement of a central-line is an invasive surgical procedure that is

difficult to perform, even by a physician, without specific training and
experience. Central line placement can cause great pain, as it requires
inserting a catheter into a vein that is not externally visible, and that is
situated below layers of skin, tissue, and muscle.
75. The procedures set out in the Field Memorandum authorize the
physician to establish a central line, but do not require that physician to
first attempt to gain peripheral intravenous access in the arms, hands,
ankles or feet. This defect was illustrated in the attempted execution of
Clayton Lockett, where a purported central line was established in
Clayton Locketts groin, despite the ample availability of sites that could
have provided peripheral venous-access.
76. The procedures set out in the Field Memorandum do not require that
any backup intravenous line be established in the condemned person. If
necessary, such a backup line can serve as a means of delivering an
anesthetic drug in the event of a misplaced or faulty primary line. No
backup intravenous line was established prior to the attempted
execution of Clayton Lockett.
77. The procedures set out in the Field Memorandum do not require that
the intravenous catheter and venous-access site remain visible and
uncovered, nor do they require that any person on the execution team
observe the venous-access site. Without visual observation, those on the
execution team cannot monitor for swelling, fluid leakage, or catheter
dislodgement. These conditions can indicate intravenous line
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infiltration, extravasation, migration, or failure, all of which require

immediate corrective action. This defect was illustrated in the attempted
execution of Clayton Lockett, when the central-line catheter and venousaccess site were kept covered and unobserved during the portions of the
execution viewed by outside witnesses.
78. The procedures set out in the Field Memorandum do not require
preparation or administration of backup dosages of any of intravenous
drugs in case any of the primary dosages prove ineffective. This defect
was illustrated in the attempted execution of Clayton Lockett, where no
backup dosages were available after depletion of the primary dosages.
79. The procedures set out in the Field Memorandum fail to require any
particular level of experience for the physician, paramedic, executioners,
and other personnel, nor do they require any particular training or
proficiency level for these personnel. As a result, there is a substantial
risk that the procedures will not be administered as written. Such
deviations create a substantial risk of severe pain and needless suffering
due to, for example, improper placement of intravenous catheters and/or
inadequately administered anesthesia.
80. The procedures set out in the Field Memorandum grant broad discretion
to the Defendant Trammell to deviate from any or all of those
procedures. The Defendant Trammell has unlimited discretion to modify
execution procedures, including modifications to the drugs used, their
dosages, the number of intravenous lines used to deliver the drugs, and
the personnel involved in carrying out executions.
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81. When problems arise, as they did during the attempted execution of
Clayton Lockett, the procedures set out in the Field Memorandum vest
ultimate supervisory and decision-making authority in the Defendant
Trammell. Yet her position requires no medical training nor even
training in the written procedures set out in the Field Memorandum.
The Defendant Trammell is not subject to oversight in making changes
or modifications to her lethal-injection procedures, nor are there
appropriate checks and balances to ensure against severe pain, needless
suffering, and a lingering death during the execution process.
82. Feasible, readily implemented alternative procedures exist that would
significantly reduce the substantial risk that the procedures set out in
the Field Memorandum will produce severe pain, needless suffering, and
a lingering death. These alternative procedures include, but are not
limited to, procedures that remedy the deficiencies described above.
83. There is a substantial risk that use of the procedures set out in the Field
Memorandum to execute the Plaintiffs will produce severe pain,
needless suffering, and a lingering death. This risk is illustrated by the
severe pain, needless suffering, and lingering death inflicted by the
Defendants as they purportedly used those procedures in an attempt to
execute Clayton Lockett.
84. In adopting and implementing the procedures set out in the Field
Memorandum, and in carrying out executions with those procedures, the
Defendants Patton and Trammell have acted and will act with
deliberate indifference to the risk set out in paragraph 83.
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85. If the attempted executions of the Plaintiffs are allowed to proceed in

accordance with the deficient procedures identified above, the Plaintiffs
will be subjected to cruel and unusual punishment, in violation of the
Eighth and Fourteenth Amendments to the United States Constitution.
Count 5 - Notice and Opportunity to Be Heard.
86. There is a real and immediate threat that the Defendants Patton and
Trammell will attempt to execute the Plaintiffs without providing them
with timely and meaningful notice as to how they will be executed,
including identification of the drugs to be used, the source and
characteristics of those drugs, and the method of their administration,
including the way that venous access will be obtained.
87. The written procedures set out in the Field Memorandum fail to require
any notice to a condemned person as to how that person will be
executed, much less identification of the drugs to be used, the source and
characteristics of those drugs, and the method of their administration,
including the way that venous access will be obtained.
88. The written procedures set out in the Field Memorandum do not
themselves provide sufficient notice to the Plaintiffs of how they will be
executed. These procedures list multiple options, do not exclude unlisted
and unwritten options, and allow the Defendant Trammell to deviate
from any of those procedures at will and without notice, thereby making
those writings virtually meaningless as a form of notice.
89. In practice, any additional notice that the Defendants Patton and
Trammell have undertaken to provide to a condemned person about how
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they will be executed has been incomplete, untimely, and insufficient.

Any such notice has always come in the context of near-constant revision
to the drugs, their sources, and the procedures to be used in any
attempted execution.
90. Without timely and meaningful notice, the Plaintiffs will be unable to
make a timely and effective legal challenge to unlawful aspects of their
proposed execution. The risk of unlawful action by the Defendants is
substantial, as evidenced by the severe pain, needless suffering, and
lingering death that the Defendants inflicted during their attempt to
execute Clayton Lockett, in violation of the Eighth and Fourteenth
91. The Defendants Patton and Trammell are aware that the Plaintiffs need
and desire timely and meaningful notice as to how they will be executed,
and have acted and will act with deliberate indifference to that need.
92. By failing to require and provide meaningful and effective notice of how
the Plaintiffs will be executed, the Defendants Patton and Trammell are
depriving Plaintiffs of their right to notice and an opportunity to be
heard, in violation of the Due Process Clause of the Fourteenth
Amendment, and are subjecting the Plaintiffs to cruel and unusual
punishment, in violation of the Eighth and Fourteenth Amendments to
the United States Constitution.
Count 6 - Ex Post Facto Punishment and Failure to Protect StateCreated Rights.
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to execute the Plaintiffs without using an ultrashort-acting barbiturate.

94. Prior to November 1, 2011, an Oklahoma statute, 22 O.S.
1014(A), required that the sentence of death be carried out by
continuous, intravenous administration of a lethal quantity of an
ultrashort-acting barbiturate in combination with a chemical paralytic
drug. This method has never, on its face, been held unconstitutional by
any appellate court of competent jurisdiction. Each of the Plaintiffs was
sentenced while this statute was in effect.
95. In conformity with the statute cited in paragraph 94, each of the
Plaintiffs is subject to a judicial death warrant directing that they be
executed by continuous, intravenous administration of a lethal quantity
of an ultrashort-acting barbiturate in combination with a chemical
paralytic drug.
96. The statute identified in paragraph 94 was amended, effective
November 1, 2011, to require that the punishment of death be carried
out by administration of a lethal quantity of a drug or drugs. The
amended statute imposes no requirement that any of the drugs be an
ultrashort-acting barbiturate.
97. An ultrashort-acting barbiturate can induce and maintain anesthesia
more quickly and effectively than other chemical agents, such as those
used by the Defendants in their attempted execution of Clayton Lockett.
These characteristics assure that an individual will swiftly lose
awareness and remain unaware as other agents that produce severe
pain are administered to produce death.
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98. As applied to the Plaintiffs, the amended statute increases the

punishment for the offense, and makes that punishment less humane
and more painful. If the Defendants are permitted to execute the
Plaintiffs pursuant to that amended statute, then the Defendants will
violate the Ex Post Facto clause of article I, 10 of the United States
Constitution.
99. The statute described in paragraph 94 and the death warrants described
in paragraph 95 give each Plaintiff the protected right to be executed by
administration of a lethal quantity of an ultrashort-acting barbiturate in
combination with a chemical paralytic drug. This right represents an
interest in life and liberty protected by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
100. The Oklahoma state courts have refused to protect the right identified in
paragraph 99.
101. The Defendants are aware of the right identified in paragraph 99, yet
seek to execute the Plaintiffs without using an ultrashort-acting
barbiturate, in disregard of that right.
102. If the attempted executions of the Plaintiffs are allowed to proceed
without the use of an ultrashort-acting barbiturate, the right described
in paragraph 99 will be unlawfully extinguished and thereby deprive
each Plaintiff of life and liberty in violation of the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.
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Count 7 - Eighth Amendment - Experimentation on Captive Human

Subjects.
103. By attempting to conduct executions with an ever-changing array of
untried drugs of unknown provenance, using untested procedures, the
Defendants are engaging in a program of biological experimentation on
captive and unwilling human subjects. The Defendants most recent
experiment, on Clayton Lockett, was a failure that produced severe pain,
needless suffering, and a lingering death.
104. There is a real and immediate threat that the Defendants will continue
their program of human experimentation as they attempt to execute the
Plaintiffs.
105. The Defendants are conducting the experiments identified in paragraph
103 without any scientifically sound expectation that these experiments
will succeed in producing an execution that does not inflict severe pain,
needless suffering, or a lingering death.
106. The Defendants lack the scientific skills needed to design an execution
procedure using lethal drugs that does not inflict severe pain, needless
suffering, or a lingering death. Moreover, the Defendants have willfully
refused to consult directly with any experts having those skills. Human
experiments designed without the benefit of these skills have no
reasonable prospect of success.
107. The Defendants have failed to test their lethal drugs and execution
procedures on non-human animals before using them on captive and
unwilling human subjects. Without the benefit of non-human animal-
22
testing results, the Defendants have no reasonable justification for

conducting high-risk experiments with lethal drugs on human subjects.
108. There is a substantial risk that the Defendants will continue their
unsound and defective experimentation as they attempt to execute the
Plaintiffs, and that this experimentation will cause the Plaintiffs to
experience severe pain, needless suffering, and a lingering death. This
risk is illustrated by the severe pain, needless suffering, and lingering
death that the Defendants inflicted on Clayton Lockett.
109. In conducting the experimentation on captive and unwilling human
subjects identified in paragraph 103, the Defendants have acted and will
act with deliberate indifference to the risk identified in paragraph 108.
110. If the attempted executions of the Plaintiffs are allowed to proceed, the
Plaintiffs, who do not consent to being subjects for Defendants
experiments, will be subjected to cruel and unusual punishment, in
violation of the Eighth and Fourteenth Amendments to the United
States Constitution.
Count 8 - Interference with Access to Counsel, Government and the
Courts.
111. Each Plaintiff has a right to petition the government and the courts,
guaranteed by the First and Fourteenth Amendments to the United
States Constitution. This right continues to exist during every stage of
any attempt to execute that Plaintiff.
112. Each Plaintiff is represented by counsel, and will remain represented by
counsel during every stage of any attempt to execute that Plaintiff.
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113. Each Plaintiff has a right to consult with and be represented by his
counsel before the government and the courts, guaranteed by 18 U.S.C.
3599 and the Fourteenth Amendment to the United States
Constitution. This right continues to exist during every stage of any
attempt to execute that Plaintiff.
114. The right to counsel and the right to petition the government and courts
afford the only mechanism whereby a Plaintiff can challenge violations
of the Eighth and Fourteenth Amendment that may occur as any
attempted execution proceeds. These rights also afford the sole
mechanism for remedying deviations from the procedures set out in the
Field Memorandum as an execution takes place.
115. The risk of violations and deviations of the type described in paragraph
114 is substantial, as evidenced by the severe pain, needless suffering,
and lingering death inflicted on Clayton Lockett.
116. There is a real and immediate threat that the Defendants Patton and
Trammell will attempt to execute the Plaintiffs while interfering with
and denying to the Plaintiffs the rights identified in paragraphs 111 and
113.
117. The denial and interference described in paragraph 116 will be effected
in part by the Field Memorandum, which prohibits a condemned
individual from communicating with his counsel, either in person or by
telephone, at any time after 4:30 p.m. on the day set for his execution.
The steps of any attempted execution, including insertion and
maintenance of intravenous catheters, begin only after communication
24
with counsel is cut off.

118. In order to effectively represent their clients before the government and
the courts, counsel must be able to communicate confidentially with
their clients during the steps of any attempted execution.
119. The denial and interference described in paragraph 116 will be further
effected by denying counsel the ability to observe critical stages of the
execution process as an outside witness. An Oklahoma statute, 22 O.S.
1015 (b), directs the Defendants Patton and Trammell to allow each
execution be observed by outside witnesses. These witnesses may
include counsel for the condemned person.
120. Notwithstanding the statute identified in paragraph 119, the
Defendants Patton and Trammell have used and will use blinds and
soundproof barriers to block outside witnesses from seeing and hearing
critical stages of the execution process. Outside witnesses will be blocked
from seeing and hearing such critical stages as insertion and
maintenance of intravenous catheters, proceedings after an attempted
execution is called off, and death.
121. In order to effectively represent their clients before government and the
courts, counsel must be able to observe all steps of any attempted
execution.
122. During the attempted execution of Clayton Lockett, the Defendants
Patton and Trammell intentionally denied outside witnesses, including
counsel for Clayton Lockett, audiovisual access to such critical stages as
insertion and maintenance of intravenous catheters, proceedings after
25
his attempted execution was called off by Director Patton under

authority granted by the governor, and the death of Clayton Lockett.
123. The Defendants Patton and Trammell know that the Plaintiffs are
represented by counsel, and know that the Plaintiffs want to maintain
access to their counsel during each step of the execution process. The
Defendants Patton and Trammell also know that the Plaintiffs want
their counsel to petition the government and the courts, should
violations or deviations of the type described in paragraph 114 take
place.
124. If the attempted executions of the Plaintiffs are allowed to proceed while
their access to counsel is subject to interference and denial, the
Plaintiffs rights under the First and Fourteenth Amendments to the
United States Constitution and under 18 U.S.C. 3599 will be violated
by the Defendants Patton and Trammell.
Relief Requested.
The Plaintiffs request:
A.
That the Defendants be enjoined from attempting to execute the

Plaintiffs, or allowing any attempt to execute the Plaintiffs:
1.
using the drugs and procedures employed in the attempt to execute

Clayton Lockett, or similarly untried, untested and unsound drugs
and procedures;
2.
using midazolam;
3.
using compounded drugs;
4.
using any of the types of unsound procedures and inadequately

26
trained personnel identified above;

5.
without providing timely and meaningful notice to the Plaintiffs of

how they will be executed, including identification of the drugs to
be used, the source and characteristics of those drugs and the
method of their administration, including the way that venous
access will be obtained;
6.
using drugs that do not include an ultrashort-acting barbiturate;
7.
in the course of human experimentation with drugs and procedures

of scientifically unproven efficacy in avoiding severe pain, needless
suffering and a lingering death;
8.
while the Plaintiffs access to counsel is subject to interference or

denial.
B.
That a declaratory judgment be awarded declaring that the Plaintiffs

have the legal right not to be executed:
1.
using the drugs and procedures employed in the attempt to execute

Clayton Lockett, or similarly untried, untested and unsound drugs
and procedures;
2.
using midazolam;
3.
using compounded drugs;
4.
using any of the types of unsound procedures and inadequately

trained personnel identified above;
5.
without providing timely and meaningful notice to the Plaintiffs of

how they will be executed, including identification of the drugs to
be used, the source and characteristics of those drugs and the
27
method of their administration, including the way that venous

access will be obtained;
6.
using drugs that do not include an ultrashort-acting barbiturate;
7.
in the course of human experimentation with drugs and procedures

of scientifically unproven efficacy in avoiding severe pain, needless
suffering and a lingering death;
8.
while the Plaintiffs access to counsel is subject to interference or

denial.
C.
An award of attorney fees and costs.1
D.
Such other relief to which the Plaintiffs may be entitled.
s/ Patti Palmer Ghezzi

Patti Palmer Ghezzi
OBA #:
office:
address:
6875
Federal Public Defender
215 Dean A. McGee Ave. Suite 109
Oklahoma City, 73102
405 609 5975
405 609 5976
patti_ghezzi@fd.org
telephone:
fax:
email:
Attorney for Plaintiffs Cole, Cuesta-Rodriguez, Davis, Fairchild, Grant,

Grissom, Harmon, Johnson, Littlejohn, Pavatt, Simpson, and Underwood
Counsel for Plaintiffs represented by Federal Public Defender offices do not

request attorney fees and costs.
28
s/ Randy A. Bauman*
Randy A. Bauman
OBA #:
office:
address:
telephone:
fax:
email:
610
215 Dean A. McGee Ave Suite 109
Oklahoma City, OK 73102
405 609 5975
405 609 5976
randy_bauman@fd.org
Attorney for Plaintiffs Cole, Cuesta-Rodriguez, Davis, Fairchild, Grant,
Grissom, Harmon, Johnson, Littlejohn, Pavatt, Simpson, and Underwood
s/ Seth A. Day*
Seth A. Day
OBA #:
firm:
address:
telephone:
fax:
email:
20670
Hall, Estill, Hardwick, Gable, Golden, & Nelson, P.C.
100 N. Broadway Suite 2900
Chase Tower
405 553 2828
405 553 2855
sday@hallestill.com
Attorney for Plaintiffs Warner and Coddington
*Signed by filing attorney with permission.
29
s/ Susanna M. Gattoni*
OBA #:
firm:
address:
telephone:
fax:
email:
Susanna M. Gattoni
16922
Chase Tower
405 553 2828
405 553 2855
sgattoni@hallestill.com
s/ Mark Henricksen*
OBA #:
firm:
address:
telephone:
fax:
email:
Mark Henricksen
4102
Henricksen & Henricksen, Lawyers, Inc.
600 N. Walker Ave. Suite 220
405 609 1970
405 609 1973
mark@henricksenlaw.com
Attorney for Plaintiffs Andrew, Glossip and Jackson
30
s/ David B. Autry*
OBA #:
address:
telephone:
fax:
email:
David B. Autry
11600
1021 N.W. 16th St.
405 521 9600
405 521 9669
dbautry44@hotmail.com
Attorney for Plaintiff Hancock
s/ Mark H. Barrett*
OBA #:
address:
telephone:
fax:
email:
Mark H. Barrett
557
111 N. Peters Ave. Suite 200
Norman, OK 73069
405 364 8367
405 364 8329
barrettlawoffice@gmail.com
Attorney for Plaintiff Jones
s/ Fred L. Staggs*
OBA #:
address:
telephone:
email:
Fred L. Staggs
8534
510 N.W. 17th St.
405 990 5523
staggslaw@aol.com
Attorney for Plaintiff Mitchell
31
s/ Gary Peterson*
OBA #:
address:
telephone:
fax:
email:
Gary Peterson
7068
211 N. Robinson Ave. Suite 450 South
Two Leadership Square
405 606 3367
866 628 0506
gp@garypeterson.com
Attorney for Plaintiff Warner
s/ Dale A. Baich*
Dale A. Baich
office:
address:
telephone:
fax:
email:

850 W. Adams St. Suite 201
Phoenix, AZ 85007
602 382 2816
602 889 3960
dale_baich@fd.org
Attorney for Plaintiff Wood
32
s/ Kelly Culshaw*
office:
address:
telephone:
fax:
email:
Kelly Culshaw
Phoenix, AZ 85007
602 382 2816
602 889 3960
kelly_culshaw@fd.org
s/ Robin C. Konrad*
Robin C. Konrad
office:
address:
telephone:
fax:
email:

Phoenix, AZ 85007
602 382 2816
602 889 3960
robin_konrad@fd.org
33
Case 5:14-cv-00665-F Document 1-1 Filed 06/25/14 Page 1 of 2
Plaintiffs:
Name
Inmate Number
Mailing Address
Charles F. Warner
273669
P.O. Box 97
McAlester, OK
74502
James A. Coddington
194169
P.O. Box 97
McAlester, OK
74502
Benjamin R. Cole
489814
P.O. Box 97
McAlester, OK
74502
Carlos Cuesta-Rodriguez
563531
P.O. Box 97
McAlester, OK
74502
Nicholas A. Davis
414338
P.O. Box 97
McAlester, OK
74502
Richard S. Fairchild
241527
P.O. Box 97
McAlester, OK
74502
John M. Grant
102816
P.O. Box 97
McAlester, OK
74502
Wendell A. Grissom
575281
P.O. Box 97
McAlester, OK
74502
Marlon D. Harmon
581143
P.O. Box 97
McAlester, OK
74502
Raymond E. Johnson
207742
P.O. Box 97
McAlester, OK
74502
Emmanuel A. Littlejohn
190341
P.O. Box 97
McAlester, OK
74502
Name
Inmate Number
Mailing Address
James D. Pavatt
455677
P.O. Box 97
McAlester, OK
74502
Kendrick A. Simpson
568612
P.O. Box 97
McAlester, OK
74502
Kevin R. Underwood
576482
P.O. Box 97
McAlester, OK
74502
Brenda E. Andrew
483397
29501 Kickapoo Rd
McLoud, OK
74851-8339
Richard E. Glossip
267303
P.O. Box 97
McAlester, OK
74502
Shelton D. Jackson
270308
P.O. Box 97
McAlester, OK
74502
Phillip D. Hancock
126307
P.O. Box 97
McAlester, OK
74502
Julius D. Jones
270147
P.O. Box 97
McAlester, OK
74502
Alfred B. Mitchell
206964
P.O. Box 97
McAlester, OK
74502
Termane Wood
271967
P.O. Box 97
McAlester, OK
74502
Attorneys for Plaintiffs:
office:
address:
telephone:
fax:
email:
Patti P. Ghezzi
405 609 5975
405 609 5976
patti_ghezzi@fd.org
Attorney for Plaintiffs Cole, Cuesta-Rodriguez, Davis, Fairchild,
Grant, Grissom, Harmon, Johnson, Littlejohn, Pavatt, Simpson,
and Underwood
office:
address:
telephone:
fax:
email:
Randy A. Bauman
405 609 5975
405 609 5976
randy_bauman@fd.org
and Underwood
firm:
address:
telephone:
fax:
email:
Seth A. Day
Chase Tower
405 553 2828
405 553 2855
sday@hallestill.com
firm:
address:
telephone:
fax:
email:
Susanna M. Gattoni
Chase Tower
405 553 2828
405 553 2855
firm:
address:
telephone:
fax:
email:
Mark Henricksen
405 609 1970
405 609 1973
address:
telephone:
fax:
email:
David B. Autry
1021 N.W. 16th St.
405 521 9600
405 521 9669
address:
telephone:
fax:
email:
Mark H. Barrett
Norman, OK 73069
405 364 8367
405 364 8329
address:
telephone:
email:
Fred L. Staggs
510 N.W. 17th St.
405 990 5523
staggslaw@aol.com
address:
telephone:
fax:
email:
Gary Peterson
405 606 3367
866 628 0506
gp@garypeterson.com
office:
address:
telephone:
fax:
email:
Dale A. Baich
Phoenix, AZ 85007
602 382 2816
602 889 3960
dale_baich@fd.org
office:
address:
telephone:
fax:
email:
Kelly Culshaw
Phoenix, AZ 85007
602 382 2816
602 889 3960
office:
address:
telephone:
fax:
email:
Robin C. Konrad
Phoenix, AZ 85007
602 382 2816
602 889 3960
robin_konrad@fd.org
Defendants:
Kevin J. Gross
Michael W. Roach
Steve Burrage
Gene Haynes
Frank Frazier Henke
Linda K. Neal
Earnest D. Ware
Robert C. Patton
Anita K. Trammell
Doctor X
Paramedic Y
Executioner #1
Executioner #2
Executioner #3
-65HY
CIVIL COVER SHEET
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statutes unless diversity. ([DPSOH86&LYLO6WDWXWH86&%ULHI'HVFULSWLRQ8QDXWKRUL]HGUHFHSWLRQRIFDEOHVHUYLFH
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Date and Attorney Signature.'DWHDQGVLJQWKHFLYLOFRYHUVKHHW
Plaintiffs:
Name
Inmate
Number
Mailing Address
Charles F. Warner
273669
P.O. Box 97
McAlester, OK
74502
James A. Coddington
194169
P.O. Box 97
McAlester, OK
74502
Benjamin R. Cole
489814
P.O. Box 97
McAlester, OK
74502
Carlos Cuesta-Rodriguez
563531
P.O. Box 97
McAlester, OK
74502
Nicholas A. Davis
414338
P.O. Box 97
McAlester, OK
74502
Richard S. Fairchild
241527
P.O. Box 97
McAlester, OK
74502
John M. Grant
102816
P.O. Box 97
McAlester, OK
74502
Wendell A. Grissom
575281
P.O. Box 97
McAlester, OK
74502
Marlon D. Harmon
581143
P.O. Box 97
McAlester, OK
74502
Raymond E. Johnson
207742
P.O. Box 97
McAlester, OK
74502
Name
Inmate
Number
Mailing Address
Emmanuel A. Littlejohn
190341
P.O. Box 97
McAlester, OK
74502
James D. Pavatt
455677
P.O. Box 97
McAlester, OK
74502
Kendrick A. Simpson
568612
P.O. Box 97
McAlester, OK
74502
Kevin R. Underwood
576482
P.O. Box 97
McAlester, OK
74502
Jeremy A. Williams
533491
P.O. Box 97
McAlester, OK
74502
Brenda E. Andrew
483397
29501 Kickapoo
Rd
McLoud, OK
74851-8339
Richard E. Glossip
267303
P.O. Box 97
McAlester, OK
74502
Shelton D. Jackson
270308
P.O. Box 97
McAlester, OK
74502
Phillip D. Hancock
126307
P.O. Box 97
McAlester, OK
74502
Julius D. Jones
270147
P.O. Box 97
McAlester, OK
74502
Name
Inmate
Number
Mailing Address
Alfred B. Mitchell
206964
P.O. Box 97
McAlester, OK
74502
Termane Wood
271967
P.O. Box 97
McAlester, OK
74502
Attorneys for Plaintiffs:
office:
address:
telephone:
fax:
email:
Patti P. Ghezzi
405 609 5975
405 609 5976
patti_ghezzi@fd.org
Underwood and Williams
office:
address:
telephone:
fax:
email:
Randy A. Bauman
405 609 5975
405 609 5976
randy_bauman@fd.org
Underwood and Williams
firm:
address:
telephone:
fax:
email:
Seth A. Day
Chase Tower
405 553 2828
405 553 2855
sday@hallestill.com
firm:
address:
telephone:
fax:
email:
Susanna M. Gattoni
Chase Tower
405 553 2828
405 553 2855
firm:
address:
telephone:
fax:
email:
Mark Henricksen
405 609 1970
405 609 1973
address:
telephone:
fax:
email:
David B. Autry
1021 N.W. 16th St.
405 521 9600
405 521 9669
address:
telephone:
fax:
email:
Mark H. Barrett
Norman, OK 73069
405 364 8367
405 364 8329
address:
telephone:
email:
Fred L. Staggs
510 N.W. 17th St.
405 990 5523
staggslaw@aol.com
address:
telephone:
fax:
email:
Gary Peterson
405 606 3367
866 628 0506
gp@garypeterson.com
office:
address:
telephone:
fax:
email:
Dale A. Baich
Phoenix, AZ 85007
602 382 2816
602 889 3960
dale_baich@fd.org
office:
address:
telephone:
fax:
email:
Kelly Culshaw
Phoenix, AZ 85007
602 382 2816
602 889 3960
office:
address:
telephone:
fax:
email:
Robin C. Konrad
Phoenix, AZ 85007
602 382 2816
602 889 3960
robin_konrad@fd.org
Defendants:
Robert C. Patton
Anita K. Trammell
Doctor X
Paramedic Y
Executioner #1
Executioner #2
Executioner #3

Original Complaint (Glossip vs. Gross)

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Original Complaint (Glossip vs. Gross)

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Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 1 of 33

United States District Court

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 2 of 33

Each of the Plaintiffs is under a sentence of death imposed by the

The Plaintiff Brenda E. Andrew resides within this District in

The Plaintiff Benjamin R. Cole is an incompetent person. He sues by

Defendants, Kevin J. Gross, Michael W. Roach, Steve Burrage, Gene

Defendants Gross, Roach, Burrage, Haynes, Henke, Neal, and Ware

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 3 of 33

establish policies for the Oklahoma Department of Corrections. Each

The Defendant Robert C. Patton is Director of the Department of

The Defendant Anita K. Trammell is the warden of the Oklahoma State

The Defendant Trammell is assigned by Oklahoma law with the

The Defendant Patton is assigned by Oklahoma law with authority over

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 4 of 33

licensed physician. The functions of this official include insertion of

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 5 of 33

sentences of death will be carried out by the Defendants.

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 6 of 33

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 7 of 33

pancuronium bromide, and potassium chloride, in accordance with

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 8 of 33

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 9 of 33

untested, and unsound drugs and procedures.

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 10 of 33

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 11 of 33

vecuronium bromide, or its substitute.

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 12 of 33

the use of midazolam, the Plaintiffs will be subjected to cruel and

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 13 of 33

66. With compounded drugs, there is a substantial risk that excepient

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 14 of 33

declaration, uttered shortly after he was injected with a compounded

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 15 of 33

74. Placement of a central-line is an invasive surgical procedure that is

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 16 of 33

infiltration, extravasation, migration, or failure, all of which require

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 17 of 33

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 18 of 33

85. If the attempted executions of the Plaintiffs are allowed to proceed in

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 19 of 33

they will be executed has been incomplete, untimely, and insufficient.

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 20 of 33

to execute the Plaintiffs without using an ultrashort-acting barbiturate.

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 21 of 33

98. As applied to the Plaintiffs, the amended statute increases the

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 22 of 33

Count 7 - Eighth Amendment - Experimentation on Captive Human

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 23 of 33

testing results, the Defendants have no reasonable justification for

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 24 of 33

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 25 of 33

with counsel is cut off.

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 26 of 33

his attempted execution was called off by Director Patton under

That the Defendants be enjoined from attempting to execute the

using the drugs and procedures employed in the attempt to execute

using compounded drugs;

using any of the types of unsound procedures and inadequately

Case 5:14-cv-00665-F Document 1 Filed 06/25/14 Page 27 of 33

trained personnel identified above;

without providing timely and meaningful notice to the Plaintiffs of

using drugs that do not include an ultrashort-acting barbiturate;

in the course of human experimentation with drugs and procedures

&LWHWKH86&LYLO6WDWXWHXQGHUZKLFK\RXDUHILOLQJ(Do not cite jurisdictional statutes unless diversity)

Plaintiffs-Defendants.(QWHUQDPHVODVWILUVWPLGGOHLQLWLDORISODLQWLIIDQGGHIHQGDQW,IWKHSODLQWLIIRUGHIHQGDQWLVDJRYHUQPHQWDJHQF\XVH

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