Case 5:12-cv-00758-M Document 6 Filed 07/10/12 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA MICHAEL HOOPER, ) ) Plaintiff, ) ) v. ) ) JUSTIN JONES, in his capacity as Director ) of the Oklahoma Department of Corrections; ) RANDALL WORKMAN, in his capacity as ) Warden of the Oklahoma State Penitentiary; and ) DOES, UNKNOWN EXECUTIONERS, in their ) capacities as employees or agents of the Oklahoma ) Department of Corrections, ) ) Defendants. )

Case No. __________________

DEATH PENALTY CASE

Execution scheduled August 14, 2012

MOTION FOR PRELIMINARY INJUNCTION Plaintiff Michael Hooper, having filed his Complaint in this matter, moves pursuant to Federal Rule of Civil Procedure 65(a) for a preliminary in junction barring Defendants from executing him on August 14, 2012 under the current Oklahoma Department of Corrections protocol which went into effect on October 28. 2010 (hereafter the protocol.) Mr. Hooper seeks injunctive relief barring Defendants and each of them and/or their agents from acting jointly or severally to execute him in a manner that will deprive him of his Fifth, Eighth and Fourteenth Amendment rights under the United States Constitution and 42 U.S.C.

1983.
In light of his impending execution date, a preliminary injunction is necessary to allow Mr. Hooper to litigate his claims before he is executed in violation of his constitutional

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rights. Mr. Hooper also requests expedited discovery, oral argument, and an evidentiary hearing on his motion. This motion is supported by averments of the Complaint, Doc. 1 herein. I. This Court should grant Mr. Hooper a Preliminary Injunction Plaintiff Hooper seeks a preliminary injunction barring Defendants from executing him according to the October 28, 2010 protocol, or at least barring execution until a backup dose of pentobarbital is available in case the initial does of pentobarbital fails to render Mr. Hooper unable to experience pain and suffering. See Fed. R. Civ. Proc. 65. The purpose of a preliminary injunction is to preserve the status quo until the rights of the parties can be fully and fairly litigated.
There are two approaches to determine whether to grant a preliminary injunction. Under the first approach, a movant must demonstrate (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Under the second approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). When considering the second approach, a preliminary injunction is proper where serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiffs favor, and where there is a likelihood of irreparable injury and the injunction is in the public interest. Cottrell, 632 F.3d at 1135. For the reasons outlined below, Mr. Hooper meets either standard for

obtaining a preliminary injunction.

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A. Plaintiff has raised a serious and specific concern going to the merits of his claims, a concern which points to a defect in the ODOC protocol not addressed in any prior challenges to ODOCs lethal injection protocol. The claim regarding the absence of a backup dose of pentobarbital is likely to succeed on the merits. A preliminary injunction motion meets the likelihood of success prong if at least one claim is likely to succeed. See Compass Bank v. Hartley, 430 F. Supp. 2d 973, 983 (D. Ariz. 2006)(court need not address the validity of each and every claim. Rather, for purposes of determining Plaintiff's likelihood of success on the merits, it is sufficient that the Court finds that Plaintiff is likely to succeed on the breach of contract claims.) 1. Baze v. Rees offers Oklahoma no safe harbor as to Mr. Hoopers execution With only one dose of pentobarbital, Oklahoma cannot accomplish the safeguard contemplated by OSP Procedure 040301-01, Section IX(C)(6), which provides in pertinent part as follows: Prior to the administration of the vecuronium bromide, 1 the physician present in the Execution Room will monitor the condemned offenders level of consciousness through whatever means the physician believes are appropriate, to ensure that the condemned is sufficiently unconscious prior to the administration of the vecuronium bromide. . . . If the physician pronounces death of the condemned before the administration of all three drugs, the injection of any remaining drugs will continue until completed. The protocol here is silent as to what the physician must do should the dose of anesthetic fail

The second drug in the 3-drug protocol, a paralytic.

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to induce unconsciousness sufficient to ensure Mr. Hooper or prisoners similarly subjected to lethal injection will not experience cruel and unusual punishment. The risk is substantial as anesthesia has failed to take hold in a number of executions in Oklahoma and throughout the United States. The logical course when the physician monitors consciousness is to administer more anesthetic if the prisoner is still conscious. That cannot happen with Mr. Hooper if the first dose fails to do its job. Kentuckys protocol, the safe harbor protocol in Baze v. Rees, 553 U.S. 35 (2008), contemplates having a second injection if the first fails. See Complaint, Paragraph 1, at 2-3. Thus in this circumstance regarding Mr. Hoopers pending execution, ODOCs protocol is clearly outside Bazes safe harbor. 2. The ODOC protocol is outmoded and, compared to the one-drug protocol now employed by four states in over twenty executions, creates a risk of cruel and unusual punishment which is now unacceptable. This claim also enjoys a likelihood of success. The Complaint details the concerns of a Kentucky Circuit Court Judge, Hon. Phillip J. Shepherd, that developments after the decision in Baze v. Rees may make the one-drug protocol necessary to comply with the Eighth Amendment. See Complaint discussion and citations at Paragraph 12, pages 6-8. ODOCs choice to forego the less stringent and risky one-drug protocol, despite explicit legislative authorization for a one-drug protocol in 22 O.S. 1014, and to adhere to the three-drug protocol which risks extreme pain from the use of vecuronium bromide and potassium chloride, serves no legitimate governmental or public interest, let alone a compelling interest. Ordering a change to the one-drug protocol would do Oklahoma no harm; ordering this execution deferred until a backup dose is obtained cannot risk as much

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harm to Oklahoma as Mr. Hooper risks by being subjected to the risks of an excruciating death. The Complaint has detailed the irreparable harm Mr. Hooper could well suffer, and the demonstrated efficacy of a one-drug protocol more than tips the equities in favor of granting the preliminary injunction. ODOCs adherence choice to the three-drug protocol is thus arbitrary and capricious. 3. The test for granting the prel i mi nary injunction sought is met as to each prong. The Complaint herein specifically and explicitly details the irreparable harm Mr. Hooper will suffer of a preliminary injunction is not granted. Mr. Hooper has raised colorable claims of threatened violation of his Eighth Amendment rights under the Constitution of the United States. Deprivation of constitutional rights alone had been held by many courts to constitute irreparable injury. See, e.g., Bean v. Southwestern Waste Management Corp., 482 F.Supp. 673, 677 (S.D. Texas 1979); Warsoldier v. Woodford, 418 F.3d 989, 1001-1002 (9th Cir. 2005)(When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary) (citing 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, 2948.1 (2d ed. 2011). If Mr. Hooper is subjected to unconstitutional cruel and unusual punishment, the harm is certainly irreparable; nothing can assuage or ameliorate it. His claims are likely to succeed, he will suffer irreparable harm if the execution proceeds as now planned by ODOC, the balance of equities favor him, and the public interest will be rendered a disservice of his execution results in realization of the substantial risk of pain and suffering needlessly presented by the current protocol and its defect in not providing that a backup dose is

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minimally necessary. WHEREFORE, Plaintiff Michael Hooper respectfully requests a preliminary injunction be granted son that he may fully and fairly litigate the claims in his Complaint filed herein as Doc. 1. Respectfully submitted this 10th day of July, 2012.

/s/ James Alexander Drummond _______________________________________ James Alexander Drummond Jim Drummond Law Firm, PLC 220 East Main Street, Suite 2 Norman, Oklahoma 73069-1350 405-310-4040; FAX 404-310-4041 Jim@jimdrummondlaw.com ATTORNEY FOR MICHAEL HOOPER

CERTIFICATE OF SERVICE I hereby certify that on the 10th day of July, 2012, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrant: Robert Whittaker, Asst. Attorney General.

/s/ James Alexander Drummond _________________________________________