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Gray v. McAuliffe

United States District Court, E.D. Virginia, Richmond Division

January 10, 2017




         Plaintiff Ricky Jovan Gray, a Virginia state inmate sentenced to death, brings this civil rights action under 42 U.S.C. § 1983. Gray is currently scheduled to be executed by lethal injection on January 18, 2017, a date that was set on November 21, 2016. On December 14, 2016, Gray filed this Complaint for Declaratory Judgment, and on December 16, 2016, he filed this Emergency Motion for Temporary Restraining Order and Preliminary Injunction.

         Gray alleges that "[t]here is a constitutionally intolerable risk that, on January 18, 2017, the Virginia Department of Corrections ("VDOC") will chemically torture [him] to death" and that "[t]he VDOC will do so behind a veil of secrecy that frustrates Mr. Gray's efforts to learn any meaningful details about the chemicals that will be used to cause his death." (Compl. ¶ 1, ECF No. 1.) Gray contends that "[t]he risk of chemical torture is in violation of [his] Eighth Amendment right to be free from cruel punishment" and that "[t]he veil of secrecy that the VDOC has pulled across the details surrounding how Mr. Gray is to be executed is a violation of Mr. Gray's Fifth and Fourteenth Amendment right to Procedural Due Process." (Id.) Specifically, Gray speculates that the compounded midazolam that the VDOC intends to use as the first drug in its three-drug protocol will not sufficiently anesthetize him before the administration of the second- and third-stage drugs. Gray also challenges Virginia's plan to use a second compounded drug in the third stage of the lethal injection protocol.

         The Court's central focuses are Gray's Motion for Preliminary Injunction and Defendants' Opposition thereto. On January 3, 2017, the Court heard evidence and oral argument on the Motion for Preliminary Injunction. For the reasons set forth below, Gray's Motion will be denied.

         L Pertinent Procedural and Factual Background

         It has been eleven years since Gray brutally murdered Kathryn and Bryan Harvey and their two young daughters, Stella and Ruby, on New Year's Day, 2006. A Virginia jury convicted Gray of five counts of capital murder and sentenced him to death on two of the counts, the murders of Stella and Ruby Harvey. Since then, Gray has unsuccessfully pursued a host of direct and post-conviction challenges and appeals in both state and federal courts. On October 3, 2016, the United States Supreme Court denied Gray's petition for a writ of certiorari challenging his convictions and death sentences. Gray v. Zook, 137 S.Ct. 84 (2016). Faced with his impending execution, Gray filed the instant challenge.

         The Supreme Court of Virginia aptly summarized the undisputed evidence of his guilt as follows:

On the morning of January 1, 2006, Kathryn and Bryan Harvey and their two daughters, Stella and Ruby, were killed in the Harveys' home in the City of Richmond. Firefighters, responding to a call that the Harveys' home was burning, discovered the bodies of Kathryn and Ruby in the basement as they attempted to fight the fire. The house was filled with "black smoke" and the basement was burning and had "[z]ero visibility and a lot of heat." Soon after the firefighters removed the bodies of Kathryn and Ruby from the basement, they determined that the bodies showed evidence of "battle signs" and that the victims' legs had been bound. At that point the firefighters stopped their rescue efforts and summoned the police.
Detective Dwyer of the Richmond Police Department then discovered Stella in the basement under a futon "with her hands behind her back, tape around her mouth." Bryan was discovered on the floor of the basement with orange electrical cord wrapped around his wrists and feet, with "melted tape around his face [and a] large wound to his neck area." Detective Dwyer also found two claw hammers, two broken wine bottles, a knife handle and a separate knife blade in the basement. Those items, as well as several photographs of the scene, were admitted into evidence at trial.
An autopsy revealed that Bryan had been cut eight times in his neck and underneath his chin, and those wounds, although "[v]ery painful, " were not immediately fatal. His mouth had been gagged and taped. Six lacerations were made to the left side and back of Bryan's skull, each caused by blows from a hammer. He experienced severe third degree burns to his skin. Bryan died from the wounds to his skull.
Kathryn had been cut three times in her neck and chest, once in her back, and those wounds caused bleeding and pain but were not fatal. Multiple lacerations were made to Kathryn's skull as a result of blows from a hammer. The hammer blows caused a fracture to the plate above Kathryn's eyes, resulting in bleeding behind her eyes. Kathryn died from the blunt force injuries to her head.
Ruby's throat had been sliced through to her trachea, a wound that was not fatal but obstructed her breathing. Her head was also fractured and cut, causing brain tissue to exude from her skull. She had also been stabbed in the back with enough force that the knife had passed through her ribs and into her lungs. Ruby died from the blunt force injuries to her head and the stab injury to her lungs.
Stella's neck had been cut six times, with the stab wounds having penetrated her trachea and esophagus. Stella's head was also bludgeoned by a hammer, causing brain tissue to exude from her skull. She died from a combination of smoke inhalation, carbon monoxide poisoning and blunt force injury to her head.
Forensic evidence showed that the knife blade recovered from the Harveys' home had traces of blood from Kathryn, Stella, Ruby and Bryan. Bryan and Stella's DNA was discovered on the shaft of one of the recovered hammers. Kathryn's DNA was identified on the handle of the other hammer.
Evidence at trial established that Gray, Ray Dandridge and Ashley Baskerville were driving the streets of Richmond in Gray's van during the mid-morning of January 1, 2006 "looking for a house to rob." Gray and Dandridge "spotted a door open" at the Harveys' home, entered the house, and forced Kathryn, Bryan and Ruby into the basement. Stella was not home when Gray and Dandridge entered. In the basement, Gray assured the three family members that he and Dandridge would leave after they took what they wanted from the home. Gray then used electrical cords to tie Bryan's wrists behind his back and bind his ankles together.
Before Gray and Dandridge could plunder the house, they heard a noise upstairs on the home's main level. Kiersten Perkinson, a family friend, had arrived at the Harveys' home to deliver the Harveys' daughter, Stella, along with Perkinson's own daughter, Grace Lynn, from a slumber party the previous evening.
Hearing the commotion, Kathryn explained to Gray that her daughter had returned from a slumber party, so Gray permitted Kathryn to go upstairs to bring her daughter downstairs to the basement. Perkinson heard Kathryn "running up the stairs" from the basement, and upon reaching the top of the basement stairs, she appeared "pale and ashen." Stella ran past her mother and down the stairs into the basement, but Kathryn blocked Grace Lynn's path so she could not follow Stella downstairs. Kathryn told Perkinson that she did not feel well, so Perkinson and Grace Lynn left the house.
Downstairs, Gray bound the hands and feet of all the Harveys and placed clear packing tape over their mouths, but he assured them that everything would be okay. Gray and Dandridge then began collecting the items from the home they intended to steal. Kathryn attempted to comfort her distraught daughters, and she told Gray that he should take what he wanted and just leave. Suddenly, Gray took a razor knife and cut Kathryn's throat and then cut the throats of the young girls and Bryan. When Gray saw that his victims were still moving, he took a nearby claw hammer and began repeatedly beating each of the Harveys in the head. When they stopped moving, Gray poured two bottles of wine on an easel in the basement and lit a match, starting the fire. Gray and Dandridge then left the burning home with the items they had stolen.
John Hott, a family friend of the Harveys, arrived at the Harveys' home for a New Year's Day party at about 1:45 p.m. and noticed smoke coming from the house. He immediately ran to a neighbor's home and called "911".
Less than a week later, Richmond police received a tip that Gray was a suspect in the murders, and a member of the Richmond Police Department contacted the Philadelphia, Pennsylvania Police Department requesting they investigate a location where Gray may be staying and to be on the lookout for a particular vehicle believed related to the Harvey murders. In the early morning hours of January 7, 2006, Philadelphia police obtained a search warrant, and a SWAT team entered the location where Gray was suspected to be staying and found him in the basement. Gray was arrested and advised of his Miranda rights. After learning that Dandridge was also being questioned, he asked the Philadelphia police: "Can I tell you my side of the story?" As part of a signed confession, Gray described in detail how he and Dandridge entered the Harveys' home and attacked the Harveys, in which he stated:
[I]t was a real nasty scene. How am I suppose[d] to explain something like what happened? I started cutting their throats and they kept getting up and they [were] scaring me. I remember seeing the hammer and picking it up, and then . . . I was just hitting them all with the hammer. All I know is nobody was moving when I left out there.
Gray admitted that Dandridge spent most of this time searching the home for items to steal, and that only Gray used the hammers to attack the Harvey s.
Gray stipulated at trial that Bryan's wedding ring, as well as a cookie plate and a basket from the Harveys' home, were discovered in a location Gray provided to police, who also recovered from Gray a computer stolen from the Harveys' home. Gray also stipulated that the boots found at the residence in Philadelphia belonged to him. Bryan and Stella's blood stains were discovered on Gray's boots. The Commonwealth also introduced photographs of the dead bodies as exhibits during the trial, and the jury was permitted to view these exhibits. At the time of the murders, Gray was twenty-eight years old. Ruby was four years old at the time of her death, and Stella was nine years old at the time of her death.

Gray v. Commonwealth, 645 S.E.2d 448, 452-54 (Va. 2007) (alterations in original).

         During the sentencing phase of his criminal proceedings, "[e]xtensive evidence was also presented to show a history of violent acts perpetrated by Gray." Id. at 454.

Lieutenant Daniel Stanek of the City of Washington, Pennsylvania Police Department testified about the discovery of the dead body of Gray's wife, Treva, on November 5, 2005. Gray was questioned at the time but was not arrested for her murder. After his arrest for the murders of the Harveys in January 2006, Gray also confessed to killing his wife with the help of Dandridge by bludgeoning her to death with a lead pipe.
Detective William Brerton of the Richmond Police Department described how, also on January 1, 2006, he learned of another set of murders committed in Richmond. Executing a search warrant, police discovered the dead bodies of Percy ell Tucker, his wife, Mary, and Mary's daughter, Ashley Baskerville all in their home. Dr. Darin Trelka, a medical examiner, testified that the autopsy revealed Percy ell's head had been "covered with Saran Wrap, " with a sock stuffed into his mouth and duct-taped shut. Percyell probably struggled for several minutes before he died from suffocation. Mary's mouth had been gagged, with duct tape over her eyes. Her neck and chest had been cut four times. Mary struggled several minutes before she died from suffocation. Ashley was found with a plastic shopping bag over her head and taped to her neck with duct tape. Her face was wrapped in duct tape and a sock stuffed into her mouth. Ashley also struggled for several minutes before she died from suffocation.
Gray's vehicle was discovered three blocks from the Tucker's home, and the Tucker's stolen vehicle was located in Philadelphia where Gray was arrested. Gray confessed to murdering the Tucker family.
Police also learned that Gray assaulted a man in Arlington, Virginia on New Year's Eve, 2005. At the sentencing phase of Gray's trial, Ryan Carey testified that as he arrived at his parent's home after work on December 31, he was attacked by two men. He was forced to the ground and stabbed multiple times. Carey escaped the assault and rushed to his father's home covered in blood. Carey's father contacted emergency personnel, who took Carey to a hospital where his condition was stabilized. After two months of hospitalization, Carey was able to return home, although he lost the use of his right arm. Gray confessed to assaulting Carey with Dandridge's assistance and stipulated that Carey's blood was found on Gray's boots.
Also testifying at the penalty phase of the trial were Mark Harvey, Bryan's older brother, and Steven Culp, Kathryn's older brother. Each described a loving relationship with their sibling and the devastating grief and emotional impact of the murders upon the extended families.

Id. at 454-55.

         II. Pertinent Allegations in the Complaint and Motion for Preliminary Injunction

         Gray contends that "this Court should temporarily and preliminarily enjoin Defendants from executing Mr. Gray on January 18, 2017, and order that Mr. Gray may take discovery-including discovery that may reveal the identity of the compounding pharmacy that prepared th[e] compounded midazolam and compounded potassium chloride at issue in this matter" (Br. Supp. Mot. Prelim. Inj. 30, ECF No. 14.) Gray claims that midazolam "presents a host of serious risks" (Id. at 9), because while it "can render inmates initially unconscious, it cannot produce and maintain anesthesia." (Id. at 7-8 (footnote omitted).) Gray argues that the VDOC's planned use of compounded drugs, including compounded midazolam, carries a demonstrated risk of inflicting severe pain upon him. (Id. at 9-13.) Gray contends that using midazolam and potassium chloride prepared by a compounding pharmacy "adds an additional layer of intolerable risk" because, "[u]nlike ordinary pharmaceutical manufacturers, non-traditional compounding pharmacies are not subject to federal Good Manufacturing Practice Guidelines and FDA oversight." (Id. at 10 (citation omitted).)

         Gray argues that "[i]t is nearly impossible to verify the quality of [the raw ingredients, called Active Pharmaceutical Ingredients ("APIs"), ] used in compounding" (Id.), which "create[s] a significant risk that compounded preparations will not be pharmacologically similar to the FDA-approved drugs they imitate." (Id. at 11.) Gray also cites concerns about mislabeling and the risk of contamination during the manufacturing process. (Id. at 11-12.)

         Gray notes that high-risk sterile drugs like midazolam and potassium chloride would have a maximum beyond use date ("BUD") of 24 hours if stored at room temperature, 72 hours if refrigerated, and 45 days if frozen. (Id. at 12.) Gray explains that "[t]he bottles holding the purported compounded midazolam and compounded potassium chloride supplied by the VDOC have labels suggesting that the 'projected expiration dates' (not the BUD) are in February and May of 2017." (Id. (citation omitted).) Gray contends that "[t]he VDOC has not provided any evidence to support this as a BUD, and for the reasons noted above, it is unlikely that these compounded drugs will remain stable and effective over this period of time." (Id. at 12-13.) Finally, Gray identifies three instances where compounded pentobarbital, which is not a drug that the VDOC intends to use here, allegedly caused problems in an execution. (Id. at 13-14.)

         Gray also contends that because he suffered "severe and protracted sexual abuse, " he now "faces terrifying nightmares in which Mr. Gray continues to experience himself as a child, being raped." (Id. at 14; see also Lisak Decl. ¶¶ 13-14, ECF No. 17.) According to Gray and his expert, Dr. Lisak, the VDOC's lethal injection protocol "will cause Mr. Gray extreme terror, and play upon one of Mr. Gray's most significant and longstanding fears" of being paralyzed. (Br. Supp. Mot. Prelim. Inj. 15 (citing Lisak Decl. ¶ 16).) Dr. Lisak speculates that, based on Gray's description of his nightmares where he cannot move his legs or arms, Gray experiences "tonic immobility." (Lisak Decl. ¶ 14.) Dr. Lisak also states that "Gray exhibits many symptoms of Post-Traumatic Stress Disorder." (Id. ¶15.) According to Gray, he "will therefore experience the psychological torture from his nightmare of being harmed while immobilized, a personalized torment that counsels in favor of an alternative method of execution." (Br. Supp. Mot. Prelim. Inj. 15.)

         Gray argues that the VDOC has at least one alternative to the three-drug lethal injection protocol. He alleges that electrocution, in the legal sense, is not a known and available alternative because it is unconstitutional, and instead proposes a firing squad.

         Finally, Gray argues that he "has been stymied in his attempts to learn any [of a host of purportedly] critical facts about the efficacy of drugs that the VDOC intends to use to execute him" by Virginia's "Secrecy Statute, " contained in section 53.1-234 of the Code of Virginia ("Secrecy Statute"). (Id. at 24.) That statute states in pertinent part:

The identities of any pharmacy or outsourcing facility that enters into a contract with the Department for the compounding of drugs necessary to carry out an execution by lethal injection, any officer or employee of such pharmacy or outsourcing facility, and any person or entity used by such pharmacy or outsourcing facility to obtain equipment or substances to facilitate the compounding of such drugs and any information reasonably calculated to lead to the identities of such persons or entities, including their names, residential and office addresses, residential and office telephone numbers, social security numbers, and tax identification numbers, shall be confidential, shall be exempt from the Freedom of Information Act (§ 2.2-3700 et seq.), and shall not be subject to discovery or introduction as evidence in any civil proceeding unless good cause is shown.

         Va. Code Ann. § 53.1-234. Gray alleges that the Secrecy Statute is unconstitutional or, in the alternative "does not apply in this federal court proceeding adjudicating federal rights." (Id. at 25.)

         The Court has considered the evidence presented by the parties and the testimony received during the evidentiary hearing, and as discussed below, finds that Gray falls far short of demonstrating entitlement to a preliminary injunction.

         III. Facts

         A. Summary of the Evidence from Evidentiary Hearing

         Gray produced three witnesses in support of his Motion for Preliminary Injunction and Temporary Restraining Order.[1] Larry D. Sasich, PharmD, MPH, FASHP, testified that midazolam is inappropriate for a use as an anesthetic drug and described the risks of compounded drugs generally. (See generally Prelim. Inj. Hr'g Tr. 13-44, 82-86, ECF No. 30.) Dr. Jonathan Groner, a medical doctor and Professor of Clinical Surgery, testified that execution by firing squad was "nearly instantaneous and painless" and that the current midazolam protocol or the electric chair has a far greater risk of causing pain and suffering than execution by firing squad. (Groner Decl. ¶ 7, 13, 15-17, ECF No. 18; see generally Prelim. Inj. Hr'g Tr. 110-27.) David Lisak, Ph.D., a psychologist who conducted a clinical interview of Gray in January 2016, testified that execution by lethal injection would be cruel and unusual for Gray because of reoccurring nightmares where he is paralyzed that stem from his childhood abuse. (See generally Prelim. Inj. Hr'g Tr. 147-54.)

         The Commonwealth called four witnesses to address the issues raised by Gray. Dr. Daniel Buffington, an expert in clinical pharmacology and toxicology described the efficacy of 500 mg of midazolam as the first-drug in the three-drug protocol. (See generally Id. at 46-80.) A. David Robinson, the Chief of Corrections Operations for the VDOC, recounted the difficulty encountered by the VDOC in acquiring lethal injection drugs. He also explained the methodology the VDOC has employed for monitoring and controlling the potency of the compounded drugs at issue. (See generally Id. at 87-109.) Dr. Frank Fuller, a VDOC pharmacist, detailed the procedure for storage and potency monitoring of the compounded drugs at issue. (See generally Id. at 129-46.) Finally, Shane Wyatt, a chemist at the Virginia Department of Consolidated Laboratory Services, General Services Division ("VDCL"), described the tests he conducted on the compounded midazolam and compounded potassium chloride designated for use in this case, to ensure the integrity and continued potency of the drugs. (See generally Id. at 155-68.)

         Initially, the Court notes an absence of expert testimony quantifying the risk Gray actually faces in the current execution scheme.[2] Mere speculation is insufficient to support an Eighth Amendment claim. Gray's evidence fails to show that the VDOC's current three-drug lethal injection protocol "presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers." Glossip v. Gross, 135 S.Ct. 2726, 2736-37 (2015) (internal quotation marks omitted) (quoting Baze v. Rees, 553 U.S. 35, 50 (2008)). In contrast, the Court finds the Defendants' evidence credible and compelling. It clearly demonstrates that any discomfort experienced by Gray in the execution process is unlikely to cause serious pain or suffering. Moreover, given the constraints placed upon the Commonwealth in obtaining other effective lethal injection drugs, Virginia appears to have implemented the most efficacious way for executing Mr. Gray's sentence.

         B. Factual Background Relating to Lethal Injection

         As an alternative to execution by electric chair, Virginia adopted lethal injection on January 1, 1995. Since then, Virginia has successfully executed 80 inmates by lethal injection. Virginia employs a three-drug protocol to perform an execution by lethal injection. (VDOC Operating Procedure 460 at 10-11, ECF No. 21-1.) Clearly, this method of execution was used by Virginia long before Gray committed the violent murders of the Harvey family in 2006. Virginia has also employed a three-drug protocol during the ensuing eleven years while Gray has been challenging his convictions and death sentence.

         The first drug in Virginia's protocol renders the condemned inmate unconscious. As has been alleged in prior cases, see, e.g., Prieto v. Clarke, No. 3:15CV587-HEH, 2015 WL 5793903, at *1 (E.D. Va. Oct. 1, 2015); Reid v. Johnson,333 F.Supp.2d 543, 551 (E.D. Va. 2004), Gray primarily speculates that the first drug in Virginia's protocol may be ...

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