Judge Tosses Claims|From Botched Execution

     OKLAHOMA CITY (CN) – A federal judge dismissed a lawsuit from the family of Clayton Lockett, criticizing their claims of “torture” and “human experimentation” in his botched execution as “bombast.”
     It took Lockett 43 minutes to die after being lethally injected on April 29, 2014. His lengthy death throes fueled a movement that seeks an end to capital punishment.
     U.S. District Judge Joe Heaton on Wednesday dismissed with prejudice Lockett’s brother’s claims against Gov. Mary Fallin, Department of Corrections Director Robert Patton, State Penitentiary Warden Anita Trammell, and the attending doctor, Johnny Zellmer. He dismissed without prejudice Gary Lockett’s claims against unidentified compounding pharmacies and drug manufacturers.
     Traditional execution drugs have become scarce as large pharmaceutical companies have been pressured into stopping their production. Several states, including Texas and Oklahoma, have compounding pharmacies produce substitute execution drugs.
     Lockett’s brother claimed that the “barbaric spectacle” of his brother’s execution was due to the “untested mixture” of execution drugs.
     Witnesses said Lockett clenched his teeth and strained to lift his head off a pillow as midazolam was injected. A curtain separating the death chamber from witnesses was closed as he gasped for breath. He died of a heart attack.
     Heaton said the state actors in the execution are protected by sovereign immunity. He said Gary Lockett’s “hyperbolic allegations about ‘torture,’ ‘crimes against humanity,’ and the like” were “bombast” and “conclusory allegations.”
     After pointing out that Clayton Lockett “was sentenced to death after being convicted of assault and battery, murder, rape, forcible sodomy, and kidnapping,” Heaton said his brother’s torture allegation is based upon improper insertion of the intravenous line, inadequate observation of the injection site, prematurely declaring Lockett unconscious and failing to give Lockett more drugs that were to be used to kill another inmate that night – his execution was called off.
     “Even assuming these allegations are true, they do not violate a right that was clearly established at the time,” Heaton wrote.
     He said the first three allegations amount to negligence, which does not rise to the level of an Eighth Amendment violation.
     “These allegations suggest nothing more than the sort of ‘isolated mishap,’ which ‘alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty.'” (Baze v. Rees, 553 U.S. 35, 50 (2008)).
     Nor was the judge persuaded by the claim based on the use of “untested” drugs, saying it identified no authority showing a right to the use of a drug other than midazolam to be “clearly established.”
     “Even assuming that defendants actually used a compounded drug and that this, on some basis, violated Mr. Lockett’s constitutional rights, that right was not clearly established at the time of his execution,” Heaton wrote. “Plaintiff has not identified any Supreme Court or Tenth Circuit authority suggesting that the use of compounded drugs in general, or of this one in particular, is unconstitutional.” (Whitaker v. Livingston, 732 F.3d465 (5th Cir. 2013)).
     Lockett was convicted in 2000 of the rape and murder of Stephanie Neiman, 19. He was convicted of shooting her with a sawed-off shotgun and watching two accomplices bury her alive.
     A group of Oklahoma death row inmates have filed their own federal lawsuit against the replacement lethal injection formula, claiming it violates their constitutional rights and is the equivalent of burning a man alive through drugs. Executions are on hold pending a ruling by the U.S. Supreme Court that is expected imminently , Glossip v. Gloss.
     Heaton noted that the Supreme Court could rule against Oklahoma’s execution protocol.
     “However, what is determinative for present purposes is that the claimed constitutional violations asserted here as to Mr. Lockett are not based on standards that were ‘clearly established’ at the time of his execution,” Heaton wrote in his 21-page ruling. “The law therefore recognizes that these defendants should not be held personally liable for any violation which may have occurred.”
     Plaintiff’s attorney David Lane, with Killmer Lane in Denver, told The Oklahoman the Lockett family will appeal.
     “It is an absolute travesty that the judge believes that when you torture a man to death and engage in human medical experimentation, as doctor Johnny Zellmer did on Clayton Lockett, that somehow that does not state any claim under the Constitution of the United States of America,” Lane told the newspaper. “That is a travesty of justice.”
     Oklahoma Attorney General Scott Pruitt’s spokesman Aaron Cooper told The Oklahoman it was pleased with the ruling.
     “The attorney general appreciates the thoughtful consideration of the court and its decision to dismiss the claims against the state,” he said.
     “This case is DISMISSED, with all claims against the individual defendants being dismissed with prejudice,” Heaton concluded. “The claims against the as-yet unidentified compounding pharmacies are dismissed without prejudice, but without leave to amend here.”

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