United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING MOTION FOR PRELIMINARY
INJUNCTION AND TEMPORARY RESTRAINING ORDER)
E.HUDSONUNITED STATES DISTRICT JUDGE.
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.
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.
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
Pertinent Procedural and Factual Background
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.
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
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
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
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
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
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
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).
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
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.
Pertinent Allegations in the Complaint and Motion for
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).)
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.)
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.)
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.)
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.
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.
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.)
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.
Summary of the Evidence from Evidentiary Hearing
produced three witnesses in support of his Motion for
Preliminary Injunction and Temporary Restraining
Order. 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.
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.)
the Court notes an absence of expert testimony quantifying
the risk Gray actually faces in the current execution
scheme. 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.
Factual Background Relating to Lethal Injection
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
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 ...