Case 3:15-cv-00295-HTW-LRA Document 42 Filed 08/26/15 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RICHARD JORDAN AND RICKY CHASE

PLAINTIFFS

THOMAS EDWIN LODEN, JR.

PUTATIVE INTERVENOR

VS.
CIVIL ACTION NO. 3:15cv295-HTW-LRA
COMMISSIONER MARSHALL L. FISHER,
Commissioner, Mississippi Department
of Corrections, in his Official Capacity;
SUPERINTENDENT EARNEST LEE,
Superintendent, Mississippi State Penitentiary,
in his Official Capacity; THE MISSISSIPPI
STATE EXECUTIONER, in his Official Capacity;
AND UNKNOWNEXECUTIONERS, in their
Official Capacities

DEFENDANTS

ORDER
I.

Background
This lawsuit involves a challenge to Mississippi’s current iteration of its three-drug

lethal injection protocol. On April 16, 2015, plaintiffs Richard Jordan and Ricky Chase
filed this action for declaratory and injunctive relief under 42 U.S.C. § 1983 1 in this
federal forum for alleged violations and threatened violations of plaintiffs’ rights to due
process and to be free from cruel and unusual punishment under the First 2, Eighth 3,

1

Title 42 U.S.C. § 1983, in pertinent part, states:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress….”
2

U.S. Const. amend. I states:
1

 Case 3:15-cv-00295-HTW-LRA Document 42 Filed 08/26/15 Page 2 of 8

and Fourteenth 4 Amendments to the United States Constitution and Article 3, Sections
14 5, 24 6, and 28 7 of the Mississippi Constitution. Plaintiffs’ forty-two page complaint
objects to the use of compounded drugs, including but not limited to compounded
pentobarbital 8, in lethal injections conducted by MDOC.
Named as defendants are: Marshall Fisher, Commissioner of the Mississippi
Department of Corrections (“MDOC”); Earnest Lee, Superintendent of the Mississippi
State Penitentiary; the Mississippi State Executioner; and other Unknown Executioners.

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
Count V of plaintiffs’ complaint alleges that the defendants have violated plaintiffs’ First
Amendment right to have a reasonable opportunity to present legal claims implicating
constitutional rights to the courts.
3

U.S. Const. amend. VIII states: “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”
4
U.S. Const. amend. XIV, § 1 states:
All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
5

Miss. Const., Art.3, § 14 states: “No person shall be deprived of life, liberty, or property except
by due process of law.”

6

Miss. Const., Art. 3, § 24 states:” All courts shall be open; and every person for an injury done
him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right
and justice shall be administered without sale, denial, or delay.”

7

Miss. Const., Art. 3, § 28 states: “Cruel or unusual punishment shall not be inflicted, nor
excessive fines be imposed.”
8

It is agreed here that Mississippi has never before used compounded pentobarbital to execute
a death row inmate.
2

 Case 3:15-cv-00295-HTW-LRA Document 42 Filed 08/26/15 Page 3 of 8

Each of these defendants is being sued in his official capacity. In this order, the court
shall refer to them as “defendants” or as the “State”, since they propose to conduct
executions on behalf of the State of Mississippi.
The State of Mississippi has asked the Mississippi Supreme Court to set an
execution date of August 27, 2015, for plaintiff Richard Jordan. As of today, August 25,
2015, the Mississippi Supreme Court has not acted on the State’s request to execute
Jordan on August 27, 2015. Convicted of capital murder committed in the course of a
kidnapping, Jordan is to die by lethal injection, a procedure approved by Miss. Code.
Ann. § 99-19-51 9. Mississippi currently employs a three-drug approach in performing
this procedure. The condemnee first is provided an anesthetic drug, and then a second
drug, vecuronium bromide which is a chemical paralytic agent. The third drug
administered is potassium chloride, a chemical that disrupts the electrical signals in the
heart, paralyzes the cardiac muscle, and kills the condemnee by cardiac arrest.
Pursuant to Federal Rule of Civil Procedure 65(b) 10, plaintiffs have moved for a
preliminary injunction to enjoin the State defendants from performing the following acts
during the execution of plaintiffs: (1) administering any anesthetic that is not in the
statutorily-mandated class of “ultra short-acting barbiturates”; (2) administering any drug
9

Miss. Code. Ann. § 99-19-51 states:
The manner of inflicting the punishment of death shall be by
continuous intravenous administration of a lethal quantity of an
ultra short-acting barbiturate or other similar drug in combination
with a chemical paralytic agent until death is pronounced by the
county coroner where the execution takes place or by a licensed
physician according to accepted standards of medical practice.

10

Rule 65(b) of the Federal Rules of Civil Procedure states: “The court may issue a temporary
restraining order without written or oral notice to the adverse party or its attorney only if: . . . the
movant's attorney certifies in writing any efforts made to give notice and the reasons why it
should not be required.”

3

 Case 3:15-cv-00295-HTW-LRA Document 42 Filed 08/26/15 Page 4 of 8

that is not manufactured under the regulation of the Food and Drug Administration
(“FDA”); (3) administering any drug that is produced by means of “non-traditional
pharmacy compounding” as that term is used by the FDA; (4) administering any drug
which has passed its expiration date; and (5) administering any chemical paralytic
agent and any drug for stopping the heart, including but not limited to potassium
chloride.
Plaintiffs urge this court to halt the execution of Jordan, and all future-planned
executions that would be plagued by the same concerns here raised. Plaintiffs sub
judice are not raising questions about their guilt, or even the trial rulings and procedures
which led to their convictions. Plaintiffs instead focus their energies on the method of
execution, whether this method is an unlawful deviation from § 99-19-51 of the
Mississippi Code, and whether this method will occasion pain and suffering the law
forbids.
Subsequent to the filing of the complaint, the defendants filed a motion to dismiss
the complaint, arguing that this court does not have subject matter jurisdiction over this
matter. On June 8, 2015, say the defendants, MDOC destroyed its entire supply of
pentobarbital, which had expired on May 20, 2015. Defendants claim that MDOC has
not been successful in its efforts to obtain a new supply of this drug. The defense
argues that the unavailability of pentobarbital, the drug directly assailed here by
plaintiffs, renders this case moot and unripe for adjudication. Because no live case or
controversy exists here, as required by Article III of the United States Constitution 11, say
the defendants, this court must dismiss this action.

11

United States Constitution Article III, § 2, Clause 1, states:
4

 Case 3:15-cv-00295-HTW-LRA Document 42 Filed 08/26/15 Page 5 of 8

In support of their motion, defendants submitted to the court Commissioner
Marshall Fisher’s affidavit, wherein he avers, “MDOC has made numerous attempts to
secure a new supply of pentobarbital from multiple sources. Defendants insist that all of
MDOC’s efforts to obtain a new supply of pentobarbital have been wholly unsuccessful.”
Doc. 25-1, Declaration of Commissioner Marshall Fisher at ¶ 8. Commissioner Fisher
further states: “MDOC has been unable to obtain a new supply of pentobarbital, in any
form whatsoever, for use in executions, and MDOC does not anticipate being able to
obtain a new supply of pentobarbital, in any form whatsoever.” Id. at ¶ 9.
On July 28, 2015, the day before the motion hearing held on these matters,
defendants filed a notice informing the court that MDOC, on that same day, had
amended its lethal injection protocol to include an anesthetic drug other than sodium
thiopental or pentobarbital. This new protocol allows for the administration of 500
milligrams of midazolam as the first drug administered in the protocol.
Upon approving this new protocol, the State filed a motion with the Mississippi
Supreme Court to re-set the execution of plaintiff Richard Jordan. The State hopes to
execute Jordan with midazolam on August 27, 2015.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or which shall be made, under their
Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all
Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall
be a Party;--to Controversies between two or more States;--between a State and Citizens of
another State;--between Citizens of different States;--between Citizens of the same State
claiming Lands under Grants of different States, and between a State, or the Citizens thereof,
and foreign States, Citizens or Subjects.

5

 Case 3:15-cv-00295-HTW-LRA Document 42 Filed 08/26/15 Page 6 of 8

II.

Discussion
Before addressing the arguments embedded in plaintiffs’ motion for preliminary

injunction, the court, first, must evaluate its basis for exercising subject matter
jurisdiction over this action. The defense contends that jurisdiction does not exist here
due to the allegedly moot and unripe nature of the claims alleged herein.
The court, however, is satisfied that it has subject matter jurisdiction over this
litigation under Title 28 U.S.C. § 1331 12, which provides federal district courts with
subject matter jurisdiction over “all civil actions arising under the Constitution, laws, or
treaties of the United States.” The court finds that a live controversy exists here
because pentobarbital, which is still used by other states to execute inmates, continues
to be an option for use by the State of Mississippi. Furthermore, plaintiffs challenge the
use of midazolam in the three-drug protocol on similar bases as well. Defendants’ Rule
12(b)(1) motion to dismiss for lack of subject matter jurisdiction is, therefore, denied.
The court now addresses plaintiff’s motion for temporary injunctive relief.
When considering a motion for injunctive relief, courts must study the pleadings
and apply the standard enunciated in Canal Auth. v. Callaway, 489 F.2d 567 (5th Cir.
1974), and its progeny. As directed by these legion of cases, the court contemplates
the following: whether the movants, plaintiffs Jordan and Chase, have shown a
substantial likelihood of prevailing on the merits; whether the movants will suffer
substantial and irreparable harm if their requested relief is not granted; whether a
preliminary injunction would injure the defendant, here the State defendants; and
whether an injunction would further the public interest.
12

Title 28 U.S.C. § 1331 states: “The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”

6

 Case 3:15-cv-00295-HTW-LRA Document 42 Filed 08/26/15 Page 7 of 8

After reviewing the pleadings and the arguments presented to the court by the
parties after the State’s amendment to the protocol, the court finds that plaintiffs have
satisfied their burden of persuasion here. First, the court finds that plaintiffs have shown
a substantial likelihood in prevailing, at least, on their claim that Mississippi’s failure to
use a drug which qualifies as an “ultra short-acting barbiturate or other similar drug” as
required by Miss. Code Ann. §99-19-51 violates Mississippi statutory law and the Due
Process Clause of the Fourteenth Amendment of the U.S. Constitution.
Moreover, the court finds that plaintiffs are threatened with substantial and
irreparable harm here, especially considering that the State seeks to execute plaintiff
Jordan on August 27, 2015. Third, the court agrees with plaintiffs that the threatened
harm to the plaintiffs outweighs the same to the defendants. Lastly, the court is not
persuaded that granting the preliminary injunction will disserve the interest of the public
of Mississippi.
Therefore, plaintiffs’ motion for temporary injunctive relief is granted. In granting
plaintiffs’ motion for temporary injunctive relief, this court is not forecasting any ultimate
ruling on the merits. At this juncture, the court merely is persuaded to preserve the
status quo until a final ruling is reached in this case. This order, in its abbreviated form,
enjoins the State from using pentobarbital, specifically in its compounded form, or
midazolam, from executing any death row inmate at this time. The court’s full reasoning
on this matter is forthcoming.
The court is unaware of any other method of execution that the State now
contemplates, but should the State contemplate any other method of execution, the

7

 Case 3:15-cv-00295-HTW-LRA Document 42 Filed 08/26/15 Page 8 of 8

State first must submit said procedure to this court before executing with any other drug,
or combination of drugs, any inmate.

SO ORDERED this 25th day of August, 2015.
__/s/ Henry T. Wingate__________________
UNITED STATES DISTRICT COURT JUDGE

8