United States District Court, E.D. Virginia, Richmond Division
January 10, 2017
RICKY JOVAN GRAY, Plaintiff,
TERENCE RICHARD McAULIFFE, et al Defendants.
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 ineffective, subjecting him to intolerable
pain from the administration of the second and third drugs.
light of the pressure waged by death penalty opponents, it
has become increasingly difficult to obtain the drugs
Virginia traditionally used to render a prisoner unconscious
during the initial stage of the execution process. For this
reason, in recent years the VDOC has approved the use of
midazolam and pentobarbital as permissible first-stage drugs
in the protocol. Robinson explained that the VDOC has
encountered difficulty obtaining either of these drugs from
its traditional suppliers. (Prelim. Inj. Hr'g Tr. 91.) He
testified that for the last Virginia execution, the VDOC had
to obtain compounded pentobarbital from Texas as its first
drug in the three-drug protocol. (Id. at 92.)
Robinson noted that if Texas had not supplied the VDOC with
the compounded pentobarbital, the VDOC had no other available
source to acquire the necessary drugs for that execution.
(Id.) Robinson attempted to obtain pentobarbital and
sodium thiopental for Plaintiffs execution, but no pharmacy
would supply him with these drugs. (Id. at 99.)
Because death penalty opponents have made it difficult to
obtain FDA-approved drugs customarily used in executions,
Virginia has recently resorted to obtaining drugs from
compounding pharmacies instead of traditional suppliers.
explained that after passage of the Secrecy Statute, the VDOC
spoke with twenty to twenty-five pharmacies in Virginia about
obtaining lethal injection drugs. (Id. at 93.) The
VDOC was required to enter into a Memorandum of Understanding
with a compounding pharmacy before the pharmacy agreed to
provide the VDOC with the necessary drugs. (ECF No. 21-2.)
Total confidentiality about the pharmacy's identity was
an essential term of that agreement. (Prelim. Inj. Hr'g
Facts Pertaining to the Instant Compounded Drugs
October 6, 2016, Gray was aware of the specific drugs that
the VDOC intends to use to execute him:
1. compounded midazolam hydrocholoride ("compounded
midazolam") as the first drug in the protocol (intended
to anesthetize Mr. Gray);
2. manufactured roncuronium [sic] bromide as the second drug
in the protocol (a paralytic drug administered to Mr. Gray to
prevent him from moving and showing outward signs of distress
while the lethal third drug is administered); and
3. compounded potassium chloride as the third drug in the
protocol, which will kill Mr. Gray by causing his heart to
(Br. Supp. Mot. Prelim. Inj. 3.) The VDOC obtained two
batches of compounded midazolam and compounded potassium
chloride from the compounding pharmacy. Robinson himself
picked up both of these batches of drugs. (Prelim. Inj.
Hr'g Tr. 96.) The VDOC has certified that the compounded
drugs were prepared between August 1 and October 31, 2016, by
a pharmacy that is licensed to operate in Virginia under the
direction of a licensed pharmacist. (ECF No. 15-6, at 4.)
Proper chain of custody was maintained at all times, and the
transfers were accomplished in accordance with instructions
from the licensed pharmacist. (Id.) Dr. Fuller
indicated that he received the batches of compounded drugs
and stored the drugs under manufacturer-required
temperatures. (Prelim. Inj. Hr'g Tr. 130.) Dr. Fuller and
the compounding pharmacist Gray learned that the VDOC had
obtained midazolam for his execution on October 4, 2016, and
on October 6, 2016 he learned that it was compounded
midazolam. (ECF No. 15-6, at 7, 10.) who made the drugs
agreed that they should be stored at room temperature in
order to prevent potential precipitate, which would render
the drugs unsuitable for injection. (Id. at 131.)
Dr. Fuller inspected the drugs and confirmed that they had no
visible precipitate, were not cloudy, and that their bottles
were sealed. (Id. at 132-34.)
first batch, the label for the bottle containing midazolam
indicated that the "projected expiration date" was
April 1, 2017 (ECF No. 21-3, at 1-3), and the label for the
first bottle containing compounded potassium chloride stated
that the "projected expiration date" was February
28, 2017 (ECF No. 21-4, at 1). Dr. Fuller explained that
these bottles were not labeled with BUDs, in part, because
the VDOC intended to test the drugs monthly to determine
whether the drugs had deteriorated, alleviating the need for
beyond use dates. (Prelim. Inj. Hr'g Tr. 134-35.) Dr.
Fuller agreed that compounded midazolam and compounded
potassium chloride would be considered high-risk drugs if
used for medicinal purposes and would have BUDs of
twenty-four hours. (Id. at 140-41.) He further
explained that these standards are not relied upon for the
preparation of execution drugs. (Id. at 145.)
October 26, 2016, Shane Wyatt received "two sealed
containers, " one of potassium chloride, and one of
midazolam, that were tested for "[verification of
labeled concentration for each container." (ECF No.
21-5, at l.) The label for the potassium chloride
stated that it was 250 mL of 2 mEq/mL potassium chloride and
the label for the midazolam stated that its concentration was
10 mL of 5 mg/mL midazolam. (Id.) The VDCL's
testing reflected that the compounded potassium chloride had
a concentration of 1.97 plus or minus 0.006mEq/ML Chloride
and 1.91 plus or minus 0.020 mEq/mL Potassium, and the
compounded midazolam was 4.47 plus or minus 0.77 mg/mL
midazolam. (Id.) Dr. Fuller testified that the tests
demonstrated that the concentrations were consistent both
with their labels and with their commercially manufactured
counterparts. (Prelim. Inj. Hr'g Tr. 136.)
testified that the VDOC later obtained a second batch of
drugs from the compounding pharmacy containing one bottle of
compounded midazolam and one bottle of compounded potassium
chloride. (Prelim. Inj. Hr'g Tr. 97.) For the second
batch, the label for the bottle containing midazolam
indicated that "projected expiration date" was May
1, 2017 (ECF No. 21-7), and the label for the bottle
containing compounded potassium chloride stated that the
"projected expiration date" was May 1, 2017 (ECF
No. 21-8). The VDOC sent this second batch, along with the
initial batch that had already been tested, to the VDCL for
testing. On December 5, 2016, Wyatt received "four
sealed containers, " two of potassium chloride and two
of midazolam, that were tested for "[verification of
labeled concentration for each container." (ECF No.
21-6, at 1.) The label for the previously tested potassium
chloride stated that it was 250 mL of 2 mEq/mL potassium
chloride, and the VDCL's second test reflected that the
compounded potassium chloride had a concentration of 1.98
plus or minus 0.006mEq/ML Chloride and 2.05 plus or minus
0.020 mEq/mL Potassium. (Id.) The new bottle of
potassium chloride was labeled as 250 ML of 2 mEq/mL, and the
VDCL's test reflected that it contained 1.99 plus or
minus 0.006 mEq/mL Potassium and 2.08 plus or minus .020
mEq/mL Potassium. (Id.) The label for the previously
tested midazolam stated that its concentration was 10 mL of 5
mg/mL midazolam, and the VDCL's second test reflected
that the compounded midazolam was 5.07 plus or minus 0.77
mg/mL midazolam. (Id.) The label for the second
bottle of midazolam indicated that it contained 10 mL of 5
mg/mL midazolam, and the VDCL's test reflected that the
concentration was 5.00 plus or minus .077 mg/mL midazolam.
(Id.) Dr. Fuller testified that the tests
demonstrated that the concentrations were consistent both
with their labels and with their commercially manufactured
counterparts. (Prelim. Inj. Hr'g Tr. 136.) Wyatt
confirmed that the tests matched the bottles' labeled
concentrations. (Id. at 163.)
testified that he conducted a full scan on these bottles for
total concentration and to confirm the identity of the
contents. (Id. at 156.) He inspected all four
bottles of compounded drugs for any cloudiness or precipitate
and noted that the substances appeared clear. (Id.
at 163.) Wyatt testified that his lab does not test for
sterility or endotoxins. (Id. at 164.) He explained,
however, that any impurities or other substances mixed in the
compound would have resulted in a greater presence of spikes
on the graph created by the mass spectrometer than what he
observed. (Id. at 159.)
Effects of Midazolam
VDOC will use 500 mg of midazolam as its first-stage drug in
the three-drug lethal injection protocol. Midazolam is used
as a sedative. It is a central nervous system and respiratory
depressant. Dr. Sasich, Dr. Buffington, and Dr. Groner all
agreed that much smaller amounts of midazolam are used for
medicinal or therapeutic purposes. Midazolam is "dose
dependent, " meaning that the more an individual is
administered, the greater the effect will be, leading to more
progressive levels of sedation. Five milligrams is considered
a high dosage for medicinal or clinical use. Doses as small
as 10 mg to 20 mg have resulted in death. Dr. Buffington
explained that "[t]here would be absolutely no
therapeutic utility or rationale to use" 500 mg of
midazolam "for a clinical purpose." (Prelim. Inj.
Hr'g Tr. 54.) Dr. Buffington noted that administration of
500 mg of midazolam would result in "respiratory
failure" and a "certainty of death."
(Id. at 52, 54.) He further explained that there is
no data to support the idea that midazolam has a so-called
ceiling effect. (Id. at 55, 69.)
Buffington agreed that midazolam is neither approved by the
FDA or other medical licensing agencies for use as a general
anesthetic, nor is it indicated in reference books for that
purpose. (Id. at 61, 64.) He explained that
midazolam would not be used alone during a clinical procedure
to induce general anesthesia because of its significant,
life-threatening, adverse side effects at the doses that
would be required. (Id. at 61, 66.) Dr. Buffington
explained that at higher doses midazolam causes
life-threatening respiratory depression, "which is
consistent with the desired application in this particular
case." (Id. at 62.)
Buffington also explained that he would not expect that a
patient would be conscious during depression of respiratory
symptoms, because "if you're going to say that the
drug is having one effect, you would expect it to have all
the effects. So if you've got a serious profound
respiratory depression, you've also got serious sedation
and significant anesthetic effects all simultaneous. So, I
would not expect the respiratory depression effect to be
something the person would be cognizant of."
(Id. at 63.) Because midazolam suppresses the
respiratory system, any signs of respiratory distress such as
coughing or gasping would be normal reflexes of respiratory
distress, but these signs do not mean the person is
conscious. (Id. at 70.)
Buffington steadfastly confirmed that a dose of midazolam
well below 500 milligrams "would render an individual
unconscious with anterograde amnesia and insensitive to
noxious stimuli." (Id. at 55.) He further
acknowledged that, although midazolam is classified as a
"short acting drug, " it would remain effective
beyond the duration of the lethal injection procedure.
(Id. at 62-63.)
The Compounding Pharmacy
Buffington explained that drugs are compounded
"routinely" and that compounded drugs are as
efficacious as their commercially manufactured counterparts.
(Id. at 50.) Robinson testified that the VDOC
obtained the compounded midazolam and compounded potassium
chloride from a licensed pharmacy and that the compounds were
made by a licensed pharmacist. (Id. at 94.) The
compounding pharmacy selected by the VDOC had no FDA or
Virginia Department of Pharmacy regulatory infractions.
(Id.) While Gray's expert espouses a host of
hypothetical risks that could result from a compounding
pharmacy's preparation of drugs, Dr. Buffington rejoined
that he would have confidence in the integrity of compounded
drugs made in a licensed pharmacy, that the drugs would be
sterile, and that the pharmacy prepared the drugs correctly
and in compliance with appropriate standards. (Id.
at 74-76.) Dr. Buffington noted that the FDA or state boards
of pharmacy do not set standards for execution drugs.
(See Id. at 59.) He also explained that concerns
about drug preparation, storage, and compliance with beyond
use dates are concerns for clinical applications, to avoid
potential harm patients, not for correctional applications.
(See Id. at 71, 73-74.) He explained that for
corrections applications, drugs are used for their adverse
side effect; "the end goal of the combined
administration of these medications is worse than any
potential adverse side effect" from improper storage.
(Id. at 73-74.)
Virginia's Specific Protocol
testified that he has worked for the VDOC for thirty-five
years and has observed thirteen executions. (Id. at
88.) The execution team practices once a month, regardless of
whether an execution is scheduled. (Id.) When an
execution date has been set, the team practices twice a month
and once a week within a month of the execution.
(Id.) Robinson explained that the team simulates the
process by conducting a "dry-run" of both the
electric chair and lethal injection protocols. (Id.
at 89.) A consciousness test is an integral part of that
regimen. (Id.) This consciousness test ensures that
the individual has no reaction to noxious stimuli.
(Id. at 89-90.) Robinson explained that two
experienced medical professionals, who have participated in
prior executions, are a part of the team and ensure the
proper insertion of the IV. (Id. at 90.) Robinson
testified that in the VDOC's execution of Alfredo Prieto
in October 2015, a compounded drug, pentobarbital, was the
first drug administered in the three-drug lethal injection.
(Id. at 92-93.) Robinson observed that execution and
noted that there were no complications. (Mat 93.)
Proffered Alternative Method of Execution
Groner testified that, in his opinion, execution by firing
squad would result in "nearly instantaneous and
painless" death. (Groner Decl. ¶ 7, ECF No. 18.)
According to Utah's protocol, the firing squad would aim
at a target placed over the individual's heart.
(Id. ¶ 9.) A properly aimed bullet would tear
the left ventricle, causing cessation of the blood to the
brain, resulting in unconsciousness within seconds. Death
would follow within three to four minutes. (Id.
¶ 10.) Dr. Groner agreed that an individual would be
conscious when the bullet hit his chest. (Prelim. Inj.
Hr'g Tr. 120.) Dr. Groner admitted that he could not
quantify with any degree of certainty how much pain an
individual would experience. (Id. at 120-21.) Dr.
Groner also admitted that if the bullet missed the target,
the individual "could suffer" and would experience
an "agonizing death." (Id. at 121.) Dr.
Groner, however, offered no convincing testimony as to why
being shot could not be extremely painful.
Robinson testified that the VDOC could not carry out an
execution by firing squad. Because VDOC employees have not
been trained in that methodology, the VDOC does not have a
chamber in which to conduct such an execution, and the VDOC
has not explored the cost of such a procedure. (Id.
at 99-100.) Robinson explained that the VDOC is not
authorized to use a manner of execution that has not been
approved by the Virginia General Assembly. (Id. at
Standard for a Preliminary Injunction
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest."
Glossip v. Gross, 135 S.Ct. 2726, 2736-37 (2015)
(quoting Winter v. Nat. Res. Def. Council Inc., 555
U.S. 7, 20 (2008)). The Fourth Circuit Court of Appeals has
clearly articulated an analytical framework for applying the
teachings of Winter. See Real Truth About Obama, Inc. v.
Federal Election Commission, 575 F.3d 342, 346-47 (4th
Cir. 2009), vacated on other grounds, 559 U.S. 1089
(2010). Gray, as the party seeking a preliminary injunction,
bears the burden of establishing that each factor supports
granting the injunction. Real Truth, 575 F.3d at
346. Each factor must be demonstrated by a "clear
showing." Winter, 555 U.S. at 22. Failure to
satisfy any one of the relevant factors mandates denial of
the preliminary injunction. Real Truth, 575 F.3d at
346. As explained below, Gray fails on all four fronts.
No Likely Success on the Merits and No Showing of Irreparable
Supreme Court has emphasized that "because it is settled
that capital punishment is constitutional, '[i]t
necessarily follows that there must be a [constitutional]
means of carrying it out.'" Glossip v.
Gross, 135 S.Ct. 2726, 2732-33 (2015) (alterations in
original) (quoting Baze v. Rees, 553 U.S. 35, 47
(2008)). Because "[s]ome risk of pain is inherent in any
method of execution-no matter how humane, " the Eighth
Amendment "does not demand the avoidance of all risk of
pain in carrying out executions." Baze, 553
U.S. at 47. More specifically, "[s]imply because an
execution method may result in pain, either by accident or as
an inescapable consequence of death, does not establish the
sort of 'objectively intolerable risk of harm' that
qualifies as cruel and unusual." Id. at 50. As
another district court has astutely noted: "The
pharmaceutical manufacturers' withdrawal of the best
drugs from use in executions does not end capital
punishment." First Amendment Coal of Az. v. Ryan,
___ F.Supp.3d ___, 2016 WL 2893413, at *5 (D. Az. May
cannot successfully challenge a method of execution unless
they establish that the method presents a risk that is
sure or very likely to cause serious illness and
needless suffering, and give rise to sufficiently
imminent dangers." Glossip, 135 S.Ct.
at 2737 (internal quotation marks omitted) (quoting
Baze, 553 U.S. at 50). "A stay of execution may
not be granted on grounds such as those asserted here unless
the condemned prisoner establishes that the State's
lethal injection protocol creates a demonstrated risk of
severe pain." Id. (quoting Baze, 553
U.S. at 61). The inmate must also show that "the risk is
substantial when compared to the known and available
alternatives." Id. (quoting Baze, 553
U.S. at 61). The burden rests with Gray to "plead and
prove" both prongs of the test. Id. at 2739;
see Brooks v. Warden, Comm V Ala. Dep'tof
Corr., 810 F.3d 812, 819 (11th Cir. 2016) (citation
omitted), cert, denied, 136 S.Ct. 979 (2016).
Supreme Court has rejected a similar Eighth Amendment
challenge to the three-drug protocol that the VDOC will use
here to execute Gray. Glossip, 135 S.Ct. at 2737-38
(affirming district court's denial of preliminary
injunction because inmate failed to establish that the use of
midazolam was sure or very likely to cause needless
suffering). Although Gray makes much of the fact that the
VDOC will use compounded midazolam, he fails to
demonstrate that compounded midazolam is pharmacologically
inferior to non-compounded midazolam. In fact, persuasive
evidence in the case at hand is to the contrary.
Midazolam as the First Drug in Protocol
Gray argues that midazolam "is not an
anesthetic at all" (Br. Supp. Mot. Prelim. Inj. 1),
and that "midazolam in any form is wholly
unsuited to the task of anesthetizing [him]"
(Id. at 6), because it "poses a recognized and
substantial risk of causing [him] severe pain."
(Id.) Gray supports his arguments with the following
contentions: (1) midazolam is an anxiety medicine, and while
it "can render inmates initially unconscious, it cannot
produce and maintain anesthesia" (Id. at 8-9
(footnote omitted)); (2) midazolam has a "ceiling
effect" (Id.); (3) midazolam itself could cause
Gray pain (Id.); and, (4) three inmates who were
executed using midazolam in 2014 and 2015 twitched or gasped
for air. (Id. 8-9.)
United States Supreme Court and several appellate courts have
uniformly rejected challenges to lethal injection protocols
that use midazolam as the first drug in a three-drug lethal
injection protocol because the plaintiffs had not established
that it poses a constitutionally unacceptable risk of pain.
See Glossip, 135 S.Ct. at 2731; Grayson v.
Warden, ___ F.App'x ___, 2016 WL 7118393, at *4-5
(11th Cir. Dec. 7, 2016) (explaining that "Supreme Court
and 'numerous other courts' have concluded that
midazolam is an adequate substitute for pentobarbital as the
first drug in a three-drug lethal injection protocol"
(citing Brooks, 810 F.3d at 822-24))). Based on the
evidence in the immediate case, the Court fails to discern
any reason to conclude otherwise.
acknowledges that the United States Supreme Court has
categorically rejected each of these arguments. See
Glossip, 135 S.Ct. at 2731; see also Brooks,
810 F.3d at 818-22 (rejecting similar arguments after
Glossip). Nevertheless, counsel argues that the
"Supreme Court has not 'approved5 the use of
midazolam in three-drug protocol lethal-injection
executions." (Br. Supp. Mot. Prelim. Inj. 7 n.4.) While
the Court does not suggest that the Supreme Court has
endorsed midazolam's constitutionality in all
applications, Gray cannot ignore that in similar, if not
identical, challenges to the use of the drug, the Supreme
Court found those arguments unpersuasive and declined to
order a stay of execution. See Glossip, 135 S.Ct. at
2726, 2740-44. The Supreme Court explicitly rejected
Gray's arguments that midazolam could not maintain
anesthesia and that midazolam had a "ceiling
the Supreme Court rejected the testimony of Gray's own
witness, Dr. Sasich, that midazolam was "powerful enough
to induce unconsciousness/5 but "too weak to maintain
unconsciousness and insensitivity to pain." Id.
at 2740-41. Instead, the Supreme Court found credible
testimony that 500 mg of midazolam would render a person
insensate to pain. Id. at 2741. The Supreme Court
further found Dr. Sasich's theory about midazolam having
a "'ceiling effect" when administered in high
doses "speculative" and unconvincing. Id.
at 2743-44. The Supreme Court also found no merit in the
argument that midazolam itself can cause paradoxical
reactions. Id. at 2740 n.3. Having weighed the
testimony of Dr. Sasich and Dr. Buffington, the Court is
firmly convinced that a 500 mg injection of midazolam would
render a person insensate to pain. Dr. Sasich's testimony
is inconsistent with the weight of credible authority.
Supreme Court also rejected Gray's fourth argument, that
"[Clayton] Lockett['s execution in Oklahoma] and
Arizona's July 2014 execution of Joseph Wood establish
that midazolam is sure or very sure to cause serious
pain." Id. at 2745. The Supreme Court
explained: "When all circumstances are considered, the
Lockett and Wood executions have little probative value for
the present purposes." (Id. at 2746.) The Court
finds the same holds true here. The Supreme Court pointed out
that as of June 29, 2015: "Aside from the Lockett
execution, 12 other executions have been conducted using the
three-drug protocol at issue here, and those appear to have
been conducted without any significant problems."
(Id. at 2745-46.)
for Gray now adds that Ronald Bert Smith, executed in Alabama
several weeks ago, "struggled for breath and heaved and
coughed and clenched his left fist" after receiving the
injection of midazolam. (Br. Supp. Mot. Prelim. Inj. 1
(internal quotation marks omitted) (citation omitted).)
However, the fact that Smith struggled for breath, heaved,
coughed, and clenched his fist, without more, falls far short
of showing that midazolam "is sure or very
likely to cause serious illness and needless
suffering." Glossip, S Ct. at 2737 (citation
omitted); see also Id. at 2733 (citation omitted)
(recognizing that "some risk of pain is inherent in any
method of execution" and "that the Constitution
does not require the avoidance of all risk of
that fact that almost every argument advanced by Gray is
contrary to settled Eighth Amendment jurisprudence, he has
been afforded the opportunity to present evidence to support
his allegations. See Id. at 2740 (emphasis added)
(explaining that "an inmate challenging a protocol bears
the burden to show, based on evidence presented to the court,
that there is a substantial risk of severe pain"). Even
considering the subtle variances in Gray's contentions
from those offered by the plaintiff in Glossip, he
still fails to make any showing, much less a clear showing,
that midazolam poses "an objectively intolerable risk of
harm." Id. at 2737 (citing Baze, 553
U.S. at 50; see also Id. at Glossip, 135
S.Ct. at 2740-46.
evidence presented by Defendants establishes that the
administration of 500 mg of midazolam can render a prisoner
unconscious and insensate to pain during the remainder of the
three-drug protocol. The evidence demonstrates that even 500
mg of midazolam used alone will result in a "certainty
of death." (Prelim. Inj. Hr'g Tr. 54.)
allegations about a ceiling effect and the possibility that
he could experience seizures or paradoxical effects are
similarly conjectural. Gray's own witness acknowledged
that there "might be" a ceiling effect, but it has
never been empirically confirmed. (Id. at 36.) Dr.
Buffington convincingly testified that the whole theoretical
phenomenon of a ceiling effect with midazolam would be
inconsequential because the individual would be deeply
sedated prior to reaching that level. (Id. at
55-56.) Gray also puts forth no cogent evidence that he could
experience seizures or "paradoxical reactions, " or
that those seizures or reactions in and of themselves
indicate that the individual was experiencing needless
suffering. See Warner v. Gross, 776 F.3d 721, 730,
732, 735-36 (10th Cir. 2016) (rejecting ceiling effect
argument and paradoxical effects argument about midazolam as
record, Gray fails to establish a substantial likelihood that
Virginia's use of 500 mg of midazolam as the first drug
in its lethal injection protocol "is sure or very
likely to cause serious illness and needless suffering,
and give rise to sufficiently imminent
dangers." Glossip, 135 S.Ct. at 2737 (internal
quotation marks omitted) (quoting Baze, 553 U.S. at
50); see Grayson, 2016 WL 7118393, at *5 (explaining
that prior decisions about the use of midazolam "make it
clear that it is not just unlikely that [Gray] will be able
to make the showing required by the first prong of
Glossip, but in fact it is virtually certain that he
will be unable to do so"). Thus, he fails to demonstrate
any likelihood of success on the merits with respect to his
general challenge to midazolam as the first drug in the
lethal injection protocol or that he is likely to suffer
irreparable harm from its use.
Compounded Midazolam and Compounded Potassium
next contends that midazolam and potassium chloride prepared
by a compounding pharmacy "adds an additional layer of
intolerable risk." (Br. Supp. Mot. Prelim Inj. 6.) Again
Gray fails to meet his burden of persuasion. Although he
posits a list of potential hazards that may result from using
compounded forms of midazolam and potassium chloride, he
again fails to make any showing, much less a clear showing,
that the drugs pose "an objectively intolerable risk of
harm." Glossip, 135 S.Ct. at 2737 (internal
quotation marks omitted) (quoting Baze, 553 U.S. at
50). Gray's attempt to suggest that the compounded drugs
here are more dangerous than FDA-approved drugs is
unsupported by the evidence.
United States Court of Appeals for the Fifth Circuit recently
rejected nearly identical arguments by a Texas death row
inmate that "compounded drugs are unregulated and
subject to quality and efficacy problems." Laddv.
Livingston, 777 F.3d 286, 289 (5th Cir. 2015); see
also Wellons v. Cornrn'r, Ga. Dep't of Corr.,
754 F.3d 1260, 1264-66 (11th Cir. 2014) (rejecting similar
challenge to a compounded drug). The court concluded that
such arguments are "essentially speculative, " and
"speculation cannot substitute for evidence that the use
of the drug is sure or very likely to cause serious
illness and needless suffering." Ladd, 777 F.3d
at 289 (quoting Brewer v. Landigran, 562 U.S. 996,
996 (2010)). The Fifth Circuit explained that to succeed, an
inmate must "offer some proof that the state's own
process-that its choice of pharmacy, that its lab results,
that the training of its executioners, and so forth, are
suspect." Id. (citing Whitaker v.
Livingston, 732 F.3d 465, 468 (5th Cir. 2013)). The
court went on to observe that Texas was able to conduct its
last fourteen executions with "a single-drug
pentobarbital injection from a compounded pharmacy ...
without significant incident." Id. at 290. This
Court previously refused to halt the execution of a Virginia
inmate, Alfredo Prieto, whose lethal injection protocol used
a compounded drug as its first ingredient. See Prieto v.
Clarke, No. 3:15CV587-HEH, 2015 WL 5793903 (E.D. Va.
Oct. 1, 2015). Prieto's execution using the compounded
drug was completed without incident.
and his expert, Dr. Sasich, question whether a compounding
pharmacy could maintain the optimal standards necessary to
produce midazolam that would retain its effectiveness for the
period of time represented on the midazolam bottle. That
disbelief, however, fails to substitute for persuasive
and Sasich recounted a number of possible problems that could
conceivably occur during the compounding process, including
contamination and not maintaining the compounded drugs or
their ingredients in the appropriate conditions. Again, this
mere "speculation cannot substitute for evidence that
the use of the drug is sure or very likely to cause
serious illness and needless suffering." Ladd,
777 F.3d at 289 (quoting Brewer, 562 U.S. at 996).
Gray has identified no deficiencies in Virginia's
procurement of the drugs in question that would support a
viable Eighth Amendment claim. See Id. (citing
Whitaker, 732 F.3d at 468). Hypotheticals are not
sufficient to warrant a stay. See id., 777
contrary, the evidence before the Court reflects that the
VDOC selected a licensed pharmacy and a licensed pharmacist
to make the compounded drugs. Moreover, the compounded
midazolam and potassium chloride have been tested by the
VDCL. The testing confirms that each bottle contains the
substance and concentration that each label reflects and that
the substance meets the concentration level of comparable
manufactured drugs. The presence of contaminants in the
compounded drugs would have been revealed in the VDCL's
test results. Compounded drugs are utilized routinely, even
in clinical settings, and are just as efficacious as their
manufactured counterparts. Gray fails to point to any
instance where a state has unsuccessfully used compounded
midazolam or compounded potassium chloride in the execution
also contends that high-risk drugs such as those at issue
have BUDs of twenty-four hours at room temperature. He also
points out that the high-risk drugs here are being maintained
at room temperature but have expiration dates that far exceed
twenty-four hours. Gray fails to supply any probative
evidence that Virginia's maintenance of the drugs at room
temperature or beyond twenty-four hours is "sure or
very likely to cause serious illness and needless
suffering." Glossip. 135 S.Ct. at 2737 (quoting
Baze, 553 U.S. at 50). To the contrary, the VDOC
tested the compounded drugs and found that they have retained
their labeled concentration.
put, Gray puts forth no evidence that compounded drugs
subject him to "a substantial risk of serious
harm." Id. (quoting Baze, 553 U.S. at
50). As such, Gray fails to a make a clear showing that he is
likely to succeed on the merits or suffer irreparable
Lethal Injection Protocol As it Relates to Gray
challenge to the use of the three-drug lethal injection
protocol also is premised on the allegation that its use will
be unconstitutional as applied to him because he suffers from
psychological issues that "would create particular fear
and suffering relating to paralysis and
unconsciousness." (Lisak Decl. ¶ 10, ECF No. 17.)
Dr. Lisak speculates that Gray may have Posttraumatic Stress
Disorder ("PTSD") based on Gray's statements
that he suffers from nightmares in which he is paralyzed. Dr.
Lisak proffers that the three-drug protocol's paralyzing
effect may trigger Gray's PTSD-like symptoms. However,
Dr. Lisak acknowledged that he had failed to address his
concerns that Gray may have PTSD with the mental health
professionals treating Gray at his place of incarceration.
(Id. at 151.)
evidence before the Court is wholly insufficient to
demonstrate that Virginia's use of the three-drug lethal
injection protocol creates a "substantial risk of
serious harm" as applied to Gray. Dr. Lisak's
testimony is entirely speculative and unpersuasive, as he
fails to quantify the likelihood that Gray would experience
constitutionally significant harm. See Arthur, 840
F.3d at 1309-12 (holding that as-applied challenge failed
where inmate was unable to produce anything more than
speculation that midazolam, as applied to him, would cause a
heart attack before full sedation). The evidence before the
Court "necessitates the conclusion that any estimation
of what side effects are likely to occur and the severity of
those side effects is wholly speculative." Coeey v.
Strickland, 604 F.3d 939, 944 (6th Cir. 2010) (internal
quotation marks omitted) (citation omitted). Speculation of
this nature "cannot meet the standard of a sure or very
likely risk of serious pain ... that is substantial when
compared to the known and available alternatives."
Id. (internal quotation marks omitted) (citation
Gray fails to produce evidence that there are known and
available alternatives that are feasible, readily
implemented, and would significantly reduce a substantial
risk of severe pain as applied to him. See Gissendaner v.
Comm 'r, Ga. Depyt of Corr. 779 F.3d
1275, 1283 (11th Cir. 2015) (finding fatal for the purposes
of Fed.R.Civ.P. 12(b)(6) an inmate's failure to identify
alternative method "that would substantially reduce the
risks she identifies based on her gender, obesity, and
possible sleep apnea"). As discussed below, the only
available alternative that Gray offers is a firing squad, a
method that is neither available nor likely to substantially
reduce the risks Gray identifies based on his alleged
psychological fear of being paralyzed.
Gray Fails to Suggest a Known and Available Alternative
Method of Execution
addition to the above failings, Gray is unlikely to succeed
on the merits of his Eighth Amendment claim because he has
failed to shoulder his responsibility to suggest an
alternative method of execution that is "known and
available" as well as "feasible, readily
implemented, and in fact significantly [likely to] reduce a
substantial risk of severe pain.'" Glossip,
135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 52).
attempt to carry this substantial burden, Gray alleges that
the Commonwealth "ha[s] refused to provide a
constitutional execution method, " and he proffers an
alternative beyond Virginia's execution statute-the
firing squad. (Br. Supp. Mot. Prelim. Inj. 19.)
principal assertion that both of Virginia's statutorily
provided methods of execution-lethal injection and
electrocution-are unconstitutional contravenes settled
precedent and is without merit. As an initial matter, Gray
does not contend that lethal injection is per se
unconstitutional. Instead, he merely challenges
Virginia's current protocol. As discussed above, the
Court finds that Gray is unlikely to prevail on his claim
that the Commonwealth's proposed use of compounded
midazolam and potassium chloride violates his Eighth
Amendment right to be spared from cruel and unusual
punishment. Moreover, the Court finds that Gray's
argument that electrocution is unconstitutional defies over a
century of settled case law to the contrary.
Supreme Court first upheld electrocution as a
constitutionally permissible method of execution in In re
Kemmler, 136 U.S. 436, 447 (1890). Though the Court did
not decide that case under the Eighth Amendment-instead
analyzing the claim under the Fourteenth Amendment-In re
Kemmler has been cited numerous times, both before and
after the Eighth Amendment was incorporated against the
states in Robinson v. California, 370 U.S. 660
(1962), for the proposition that electrocution remains a
constitutional method of execution. And the Supreme Court has
never reversed or distinguished its decision, despite being
afforded numerous opportunities to do so.
argues through anecdotal accounts and the testimony of his
expert witness, Dr. Groner, that the Court should reverse the
polarity of the law by holding that electrocution violates
the Eighth Amendment. As the Supreme Court has noted, its
"decisions remain binding precedent until [it] see[s]
fit to reconsider them, regardless of whether subsequent
cases have raised doubts about their continuing
vitality." Hohn v. United States, 524 U.S. 236,
252-53 (1998). The Supreme Court's decision in In re
Kemmler and subsequent refusal to overrule it remains
binding on this Court, and this Court lacks the authority to
the Court were to re-assess the constitutionality of
electrocution, it would find that Gray is not substantially
likely to prevail on the merits of his claim. As the Supreme
Court noted in Baze, "it is difficult to regard
a practice as 'objectively intolerable5 when it is in
fact widely tolerated." Baze, 553 U.S. at 53.
Alabama, Arkansas, Florida, Kentucky, Oklahoma, South
Carolina, Tennessee, Virginia, and the federal government
have all statutorily authorized electrocution as a method of
execution, demonstrating that this method is widely practiced
in many jurisdictions that enforce capital
punishment. That some states have chosen to depart
from electrocution in favor of other methods-and that Georgia
and Nebraska have found it unconstitutional under their
respective state constitutions-is irrelevant to this
Gray has failed to satisfy his burden of showing that he is
likely to succeed on the merits of his claim that death by
electrocution carries a "risk that is sure or very
likely to cause serious illness and needless
suffering." Glossip, 135 S.Ct. at 2737
(citation omitted). Gray's reference to eyewitness
accounts only demonstrate that the physical effects of
electrocution-namely burn marks, catching on fire, and smoke
rising from the points of contact with the electrodes-may be
visually disturbing to those witnessing the execution. (Br.
Supp. Mot. Prelim. Inj. 15-17.) They do not provide evidence
that the condemned inmates were conscious or able to feel
these effects before dying. And Dr. Groner's testimony
does not controvert this. Instead, he merely notes that
"the tvi&Qncs fails to show that inmates
are rendered instantly senseless by the flow of electricity
through the scalp electrode." (Groner Decl. ¶
17.) Absent evidence to the contrary-namely,
that electrocution fails to render the condemned unconscious
and insensate-the Court would be unable to conclude that
electrocution creates a "substantial" or
"objectively intolerable risk of harm."
Glossip, 135 S.Ct. at 2737 (citations omitted).
the Court finds that Gray is unlikely to satisfy the first
prong of the Glossip analysis with respect to
Virginia's lethal injection protocol and that, in the
alternative, the Commonwealth has already provided him with a
constitutionally "known and available" alternative
method of execution by electrocution, the Court need not
proceed in its analysis beyond the confines of Virginia's
execution statute to consider a further alternative method of
execution. Put succinctly, Virginia has provided Gray with
two constitutional methods of execution. Gray is "not
free to simply disregard those methods (and substitute his
own) without satisfactorily establishing that those methods
violate the constitutional command barring cruel and unusual
punishment." Arthur, 840 F.3d at 1317.
"Absent a showing that [the Commonwealth's] chosen
methods of execution present an unconstitutional risk of
severe pain, [Virginia] is under no obligation to deviate
from its widely accepted, presumptively constitutional
methods in favor of [Gray's] retrogressive
alternative." Id. at 1318.
as an alternative and independent ground, even if Gray had
shown that he was likely to succeed on his Eighth Amendment
claims as they pertain to lethal injection and electrocution,
the Court would find that the firing squad is neither
"feasible, readily implemented/' nor
"available" in Virginia. Gloss ip, 135
S.Ct. at 2737 (citations omitted).
undisputed that the firing squad is not currently a valid or
lawful method of execution in the Commonwealth. See
Va. Code Ann § 53.1-234. Therefore, a Virginia trial
court "would be without any authority to order [Gray] to
be executed by [that method]." Arthur, 840 F.3d
at 1316. Additionally, the VDOC would be unable to carry out
Gray's preferred death sentence without the General
Assembly fundamentally rewriting its statute. Notwithstanding
this, Gray argues that a method of execution need not be
authorized by statute for it to be "feasible, readily
implemented, " or "available" under
Glossip's second prong.
Court disagrees and instead will join the panoply of courts
that have confronted this issue in holding that a proposed
alternative method of execution must be authorized by statute
in order to be considered
"available." This finding comports with the
Supreme Court's recognition that requiring a state to
amend its method-of-execution statute "impos[es]
significant costs on the State and the administration of its
penal system." Nelson v. Campbell, 541 U.S.
637, 644 (2004). The Court concludes that the substantial
burden that would be imposed on Virginia if it had to hastily
amend its execution statute rings the death knell for
Gray's argument that an extra-statutory method satisfies
Glossip's second prong.
Robinson testified that the firing squad has never been used
in the Commonwealth of Virginia, that no correctional
officers in the VDOC have been trained to carry out an
execution by firing squad, and that no chamber currently
exists where such an execution could take place. (Prelim.
Inj. Hr'g Tr. 99-100.) Further, Virginia has not
developed a protocol to carry out an execution by firing
squad. While Gray has pointed to Utah's firing squad
protocol as an exemplar, Virginia would not be bound to adopt
an identical protocol if it chose to authorize this method of
although Gray has presented the Court with evidence that the
VDOC officers are certified in handling firearms and that
those firearms are readily available in the Commonwealth,
there is no way for the Court to determine whether these
officers and firearms would satisfy the requirements of a
hypothetical protocol that the VDOC has not yet adopted.
reality is that formulating a new protocol and locating the
people and resources necessary to carry out such an
alternative ... would take considerable time and would,
inevitably, lead to an entire new round of legal challenges
regarding the details of the protocols for constitutionally
conducting an execution by firing squad."
Arthur, 840 F.3d at 1319-20. The lack of currently
available resources and inevitable delay that would accompany
the implementation of a new method of execution necessarily
undercut any potential argument that the firing squad is
presently feasible or readily implemented.
even if the Court were to determine that the firing squad is
a "known and available" as well as "feasible,
[and] readily implemented" method of execution in
Virginia, it would conclude that the method is not
"significantly [likely to] reduce a substantial risk
of severe pain." Glossip, 135 S.Ct. at 2737
(citations omitted). As discussed above, the Court finds that
Gray has failed to demonstrate that he is likely to suffer
from "severe pain" under Virginia's current
lethal injection protocol. Consequently, he faces a high
burden in attempting to demonstrate that the firing squad
would somehow be a constitutionally superior method.
entire argument on this point is premised on Virginia's
hypothetical adoption of an identical or similar protocol to
the one used in Utah. (See Groner Decl. ¶ 9.)
As previously noted, should Virginia choose to amend its
execution statute and adopt the firing squad, the
Commonwealth would be free to adopt whatever protocol it sees
fit. This means that it could choose to adopt a substantially
different procedure, including, but not limited to, requiring
a different number of marksmen, a different caliber of
ammunition, or a different location on the inmate's body
at which to aim. A change in any one of these elements could
have a drastic impact on the likelihood that human error
would occur, which, by Dr. Groner's own testimony, could
potentially result in an "agonizing" death.
Virginia were to adopt Utah's firing squad protocol, the
potential for human error still exists as the inmate could
flinch or the executioners could miss their mark. There is no
way for the Court to weigh a risk of human error in a
not-yet-adopted firing squad protocol against any harm that
Gray might face if the compounded midazolam does not render
him fully unconscious and insensate. Consequently, Gray has
not carried his burden of proposing an alternative method of
execution that is "significantly [likely to]
reduce a substantial risk of severe pain."
Glossip, 135 S.Ct. at 2737 (quotations omitted)
of the above, the Court concludes that Gray's failure to
satisfy Glossip's second prong further supports
a finding that he is unlikely to succeed on the merits of his
Eighth Amendment claim.
Due Process Challenge to Secrecy Statute
his Eighth Amendment claim, Gray is also unlikely to succeed
on the merits of his procedural due process claim. Gray
contends that Virginia's Secrecy Statute, Va. Code Ann.
§ 53.1-234, is unconstitutional because it denies him
access to information about Virginia's lethal injection
drugs. Gray asserts that this is a violation of his
procedural due process rights. However, this argument
founders at the starting gate because no such right exists.
constitutional right to procedural due process applies
"only to the deprivation of interests encompassed by the
Fourteenth Amendment's protection of liberty and
property." Bd of Regents of State Colleges v.
Roth, 408 U.S. 564, 569 (1972). Thus, "the range of
interests protected by procedural due process is not
infinite." Wofford v. Evans, 390 F.3d 318, 325
(4th Cir. 2004) (quoting Bd. of Regents, 408 U.S. at
570). The United States Court of Appeals for the Fourth
Circuit has never decided whether a death row inmate has a
right to discover information pertaining to his
execution. But every other circuit to address
a prisoner's procedural due process challenge to a
secrecy statute has squarely rejected it.
than a year ago, the Eleventh Circuit held that a prisoner
has no procedural due process right "to know where, how,
and by whom the lethal injection drugs will be manufactured,
as well as the qualifications of the person or persons who
will manufacture the drugs, and who will place the
catheters." Jones v. Comm 3r, Ga.
Depyt of Corr., 811 F.3d 1288, 1292-93 (11th
Cir.), cert, denied sub norn. Jones v. Bryson, 136
S.Ct. 998 (2016). The Fifth, Sixth, and Eighth Circuits have
reached similar conclusions. See Phillips v. DeWine,
841 F.3d 405, 420 (6th Cir. 2016) ("Plaintiffs argue
that HB 663 prevents them from bringing an effective
challenge to Ohio's execution procedures. Specifically,
they maintain that HB 663 'denies [them] an opportunity
to discover and litigate non-frivolous claims.' But no
constitutional right exists to discover grievances or to
litigate effectively once in court." (internal quotation
marks omitted) (citation omitted)); Zink v.
Lombardi, 783 F.3d 1089, 1109 (8th Cir.), cert,
denied, 135 S.Ct. 2941 (2015) ("[T]he Constitution
does not require such disclosure. A prisoner's assertion
of necessity-that [the State] must disclose its protocol so
he can challenge its conformity with the Eighth
Amendment-does not substitute for the identification of a
cognizable liberty interest." (internal quotation marks
omitted) (citations omitted)); Trottie v.
Livingston, 766 F.3d 450, 452 (5th Cir.), cert,
denied, 135 S.Ct. 41 (2014) ("A due process right
to disclosure requires an inmate to show a cognizable liberty
interest in obtaining information about execution protocols
.... However, we have held that an uncertainty as to the
method of execution is not a cognizable liberty
interest." (citation omitted)). Likewise, this Court
will adopt the same reasoning as the Fifth, Sixth, Eighth,
and Eleventh Circuits in finding that Gray has no procedural
due process right to discover information about
Virginia's lethal injection drugs. Therefore, because
Gray is unlikely to succeed on the merits of his procedural
due process claim, this factor weighs strongly against
granting a preliminary injunction.
also argues that the Court should stay his execution to
provide time for discovery regarding his perceived Eighth
Amendment claim. Gray requests that the Court order discovery
to occur prior to the parties' initial Rule 26(f)
conference pursuant to Fed.R.Civ.P. 26(d)(1). However, that
request will be denied because, as discussed, Gray is
unlikely to succeed on the merits of his underlying claims.
As such, the Court is unwilling to delay Gray's execution
so that he can embark on a fishing expedition. The Court,
therefore, declines to address whether the privilege provided
by Virginia's secrecy statute would hypothetically apply
to this federal litigation.
the Court has devoted the majority of this opinion to
addressing how Gray falls woefully short of demonstrating
that he is likely to succeed on the merits of his claims or
that he is likely to suffer irreparable harm, two additional
factors firmly foreclose the availability of injunctive
relief. Namely, Gray fails to make any showing that the
balance of the equities favor him or that the public interest
and equitable principles favor the grant of an injunction.
The Balance of the Equities Favors the Commonwealth
the balance of equities requires the Court to assess the
relative harm facing both parties. See E.I. DuPont de
Nemours & Co. v. Kolon Ind.y Inc., 894
F.Supp.2d 691, 708 (E.D. Va. 2012). Thus, on Gray's side
of the scale is the possibility that he will experience some
incremental discomfort and associated pain in his inevitable
execution should the compounded midazolam fail to perform as
potential harm is "a thin shadow compared to the
certain, profound and [significant] harm to the state if an
injunction is issued." Reidv. Johnson, 333
F.Supp.2d 543, 552 (E.D. Va. 2004). It is well settled that
the state has "a significant interest in meting out a
sentence of death in a timely fashion." Nelson v.
Campbell, 541 U.S. 637, 644 (2004) (citing Calderon
v. Thompson, 523 U.S. 538, 556-57 (1998); In re
Blodgett, 502 U.S. 236, 238 (1992) (per curiam);
McCleskey v. Zant, 499 U.S. 467, 491 (1991)
("[T]he power of a State to pass laws means little if
the State cannot enforce them")). The state's
interest in finality and in carrying out a sentence of death
in a timely manner acquires "an added moral
dimension" when the lengthy state and federal
proceedings reviewing the conviction and sentence have run
their course. Calderon, 523 U.S. at 556. At this
point, the state and the victims of crime can expect the
moral judgment of the state to be carried out without delay.
Id. at 556 (citing Payne v. Tennessee, 501
U.S. 808 (1991)). "To unsettle these expectations is to
inflict a profound injury to the powerful and legitimate
interest in punishing the guilty, an interest shared by the
State and the victims of crime alike." Id.
(internal quotation marks omitted) (citations omitted). Here
these harms are magnified by the appalling number of people,
including two children ages four and nine, whom Gray tortured
and killed. Accordingly, the balance of the equities firmly
favors the Commonwealth.
The Public Interest and Equitable Principles Favor Denying
the Request for an Injunction
not an instance where there are any questions as to innocence
or sufficiency of due process of an individual set to be
executed. Gray's "claim to receive a sentence of
death without any unnecessary pain pales in comparison to the
interest the general public has in the orderly administration
of justice." Reid, 333 F.Supp.2d 543 at 553
(citing Calderon, 523 U.S. at 556-57). Thus, the
Fourth Circuit has admonished that, "[l]ast minute stays
[of execution] ... represent an interference with the orderly
processes of justice which should be avoided in all but the
most extraordinary circumstances." Stockton v.
Angelone, 70 F.3d 12, 13 (4th Cir. 1995) (per curiam).
This is not such a case. The public interest in denying a
stay rests firmly on the side of the Commonwealth.
the Court must consider the timing and nature of Gray's
request under general equitable principles. See
Nelson, 541 U.S. at 649-50. In this respect, the Supreme
Court instructed that courts should not countenance
manipulation of the judicial process and emphasized that
"there is a strong equitable presumption against the
grant of a stay where a claim could have been brought at such
a time as to allow consideration of the merits without
requiring entry of a stay." Id. at 650.
received two death sentences for the murders of Ruby and
Stella Harvey on October 23, 2006, yet he waited until one
month before his scheduled execution to bring a challenge to
Virginia's method for carrying out his sentence. At the
time Gray committed the horrific murders, Virginia used
lethal injection as one method to execute those individuals
sentenced to death. Moreover, ever since his 2006 sentencing,
Gray was aware that Virginia would carry out that sentence
either by electrocution or lethal injection. Gray's
suggestion, that he could not have not challenged the method
of his execution before October 2016, when he discovered that
Virginia intended to perform his execution with compounded
midazolam and potassium chloride, rings hollow. The
difficulty states have faced in obtaining the appropriate
drugs for conducting a lethal injection has been widely
publicized and a topic of public debate for a number of
years. Gray should have anticipated that Virginia might face
similar problems in securing the drugs to execute him,
particularly in the wake of an almost identical challenge in
October 2015. See Prieto v. Clarke, No.
3:15CV587-HEH, 2015 WL 5793903 (E.D. Va. Oct. 1, 2015).
Additionally, despite Gray's contention that he only
learned that the state would use two compounded drugs in
October, the underlying challenge to these two drugs is
hardly novel. Gray fails to put forth any evidence that
compounded drugs, in and of themselves, pose a risk that is
"sure or very likely to cause serious illness
and needless suffering." Glossip. 135 S.Ct. at
2737 (internal quotation marks omitted) (quoting
Baze, 553 U.S. at 50).
acted with appropriate diligence, he would have had ample
opportunity to address his concerns without disrupting the
execution date set by the state court. By waiting as long as
he did, Gray "leaves little doubt that the real purpose
behind his claim is to seek a delay of his execution, not
merely to effect an alteration in the manner in which it is
carried out." Harris v. Johnson, 376 F.3d 414,
418 (5th Cir. 2004). Gray's delay in this matter is of
significant magnitude and weighs heavily against him. See
Gomez v. U.S. Dist. Ct.for the Northern Dist. of Cal,
503 U.S. 653, 653-54 (1992) (per curiam); Grayson v.
Warden, Comm'r, Ala. Dep't of Corr., ___
F.App'x ___, 2016 WL 7118393, at *8 (11th Cir. 2016)
("While each death case is very important and deserves
our most careful consideration, the fact that [the prisoner]
has petitioned us for a stay of execution only at the very
last moment, and without adequate explanation, also suggests
to us that the equities do not lie in his favor."
(quoting Jones v. Comm 'r, Ga. Dep Y of
Corr., 811 F.3d 1288, 1297-98 (11th Cir. 2016)));
Brooks v. Warden, Comm 'r, Ala. Dep't of
Corr., 810 F.3d 812, 825-26 (11th Cir. 2016).
grant of interim injunctive relief is "an extraordinary
remedy involving the exercise of a very far-reaching power,
which is to be applied only in the limited circumstances
which clearly demand it." Direx Israel Ltd. v.
Breakthrough Medical Corp., 952 F.2d 802, 811 (4th Cir.
1991) (internal quotation marks omitted). Each of the factors
the Court must consider in granting such relief weigh
decidedly and firmly against Gray. Accordingly, Plaintiffs
Motion for Preliminary Injunctive Relief (ECF No. 13) will be
denied. Plaintiffs Motion for a Temporary Restraining Order
(ECF No. 12) will be denied as moot.
appropriate Order will accompany this Memorandum Opinion.
The parties agreed to admit Gray's
experts' previously filed declarations and supplement
their testimony with specifically focused questions.
 Gray's experts were more inclined
to provide irrelevant information about midazolam's
unsuitability as a general anesthetic in a medicinal
procedure, rather than the efficacy of a 500 mg dose of
midazolam in the lethal injection context. For example, the
Court inquired of Dr. Sasich whether it was his "belief
that the administration of 500 milligrams of midazolam would
not be reasonably calculated to render the person
unconscious?" (Prelim. Inj. Hr'g Tr. 39.) Dr.
Sasich's responses were pure obfuscation:
DR. SASICH: It certainly depends on the individual,
the effect of the -
THE COURT: Five hundred milligrams is not reasonably
calculated, the average anesthesiologist?
DR. SASICH: I don't think the average
anesthesiologist would have prescribed 500 milligrams of
 Dr Fuller also explained that the
primary reason that the drugs were labeled with a projected
expiration date rather than a beyond use date was that the
Virginia Code required the label to have a projected
expiration date. (Prelim. Inj. Hr'g Tr. 135.) That
statute provides, in pertinent part: "The pharmacy ...
shall label each such drug with the drug name, its quantity,
& projected expiration date for the drug, and a
statement that the drug shall be used only by the Department
for the purpose of carrying out an execution by lethal
injection." Va. Code Ann. § 53.1-234 (emphasis
 The VDCL issued an initial certificate
of analysis and then two amended certificates of analysis due
to mathematical errors. Wyatt averred that there was no error
with respect to the actual testing of the drugs. (Prelim.
Inj. Hr'g Tr. 158-59.)
 Robinson testified that the VDOC
decided to conduct regular testing of the drugs to ensure
their integrity and potency. (Prelim. Inj. Hr'g Tr.
96-97.) Gray's expert, Dr. Sasich, who has testified in a
number of challenges to executions, noted that this is the
first state-conducted testing of execution drugs he has seen.
(Id. at 31.) Dr. Sasich also admitted that to his
knowledge no state requires testing lethal injection drugs
prior to use. (Id. at 18.)
 Buffington further testified that
midazolam administered at ¶ 500 mg does "is clearly
capable of inducing general anesthesia . .. ." (Prelim.
Inj. Hr'g Tr. 67.)
As the Supreme Court explained:
Lockett was administered only 100 milligrams of
midazolam, and Oklahoma's investigation into that
execution concluded that the difficulties were due primarily
to the execution team's inability to obtain an IV access
site. And the Wood execution did not involve the protocol at
issue here. Wood did not receive a single dose of 500
milligrams of midazolam; instead, he received fifteen
50-milligram doses over the span of two hours. And Arizona
used a different two-drug protocol that paired midazolam with
hydromorphone, a drug that is not at issue in this case. When
all of the circumstances are considered, the Lockett and Wood
executions have little probative value for present purposes.
Glossip, 135 S.Ct. at 2746 (internal citations
omitted) (footnote omitted).
Indeed, Smith's reaction appears to
be consistent with signs of respiratory distress identified
during Gray's evidentiary hearing.
 In the hours before his execution,
Alfredo Prieto's expert asserted that compounded
pentobarbital would have at most a seventy-two hour effective
potency and thus the much older compounded pentobarbital
proposed for Prieto's execution would not render Prieto
insensitive to the second and third drugs for his execution.
These assertions about the compounded drug were completely
wrong as there were no complications with Prieto's
 Gray also fails to make any showing
that improper preparation or handling of midazolam or
potassium chloride by either the compounding pharmacy or the
VDOC will impact its effectiveness for the correctional
purpose of execution. Instead, the evidence
demonstrates that improper preparation or storage and beyond
use dates are concerns when these drugs are used in a
clinical context for therapeutic purposes. Moreover, to the
extent any accidental mishandling might have occurred,
"[t]he risk of accident cannot and need not be
eliminated from the execution process in order to survive
constitutional review." Reidv. Johnson, 333
F.Supp.2d 543, 553 (E.D. Va. 2004) (quoting Campbell v.
Wood, 18 F.3d 662, 687 (9th Cir. 1994)).
Gray's arguments focus on
compounded midazolam. Gray wholly fails to identify, and the
Court fails to discern, how compounded potassium chloride
"presents a risk that is sure or very likely to
cause serious illness and needless suffering, and give rise
to sufficiently imminent dangers."
Glossip, 135 S.Ct. at 2737 (internal quotation marks
omitted) (quoting Baze, 553 U.S. at 50). Potassium
chloride is the third drug in the lethal injection protocol
and is used to induce cardiac arrest. At most, Gray and Dr.
Sasich vaguely suggest that the combination of two compounded
drugs "creates an additional layer of risk that the
drugs will cause Mr. Gray immediate harm and pain."
(Sasich Decl. ¶ 8, ECF No. 16.) This is insufficient to
meet his burden. Gray will be insensate by the time the
potassium chloride is administered.
In his Reply, Gray argues that
Defendants only discussed each risk factor separately, not in
the aggregate, and that in the aggregate, the various factors
will cause's Gray's execution to be cruel and
unusual. (PL's Reply Br. 3-4, ECF No. 26.) The Court is
dissuaded by this argument. Even considered in the aggregate,
Gray has put forth no quantifiable risk from the VDOC's
three-drug lethal injection protocol.
Gray also suggests in passing that
the Commonwealth could use "a single-dose lethal
injection protocol using barbiturates such as pentobarbital
or sodium thiopental, as other states are increasingly
adopting." (Br. Supp. Mot. Prelim. Inj. 16 n.7.)
Robinson testified that the VDOC attempted to obtain either
pentobarbital or sodium thiopental for use in Gray's
execution, but was unsuccessful in that effort. The Eleventh
Circuit's analysis on a nearly identical assertion is
persuasive here: "(1) 'the fact that the drug[s] .
.. w[ere] available in [other states] at some point .. . does
not, without more, make it likely that it is available to
[Virginia] now'; and (2) '[Gray] ha[s] not shown that
there is now a source for pentobarbital that would sell it to
the [VDOC] for use in executions.'" Arthur,
840 F.3d at 1300 (quoting Brooks, 810 F.3d at
819-220). Given Gray's inability to provide a source for
pentobarbital or sodium thiopental that would be willing to
sell either drug to the VDOC for use in executions, the Court
concludes that both drugs are unavailable. As such,
Gray's attempt to point to another lethal injection
protocol does not satisfy Glossip's requirement
that he provide a "known and available" alternative
method of execution.
 See e.g., Glossip, 135
S.Ct. at 2732; Baze, 553 U.S. at 48-49;
McCleskey v. Kemp, 481 U.S. 279, 299 (1987);
Rummel v. Estelle, 445 U.S. 263, 288 (1980) (Powell,
J., dissenting); Ingraham v. Wright, 430 U.S. 651,
667 (1977); Gregg v. Georgia, 428 U.S. 153, 170, 178
(1976); Louisiana ex rel. Francis v. Resweber, 329
U.S. 459, 474-76 (1947); Poyner v. Murray, No.
93-6052, 1993 WL 13119345, at *l-2 (4th Cir. Jan. 19, 1993),
cert, denied, 508 U.S. 931 (1993); Martin v.
Commonwealth, 221 Va. 436, 439 (1980).
 Gray's argument that In re
Kemmler is inapplicable under current Supreme Court
precedent is unavailing as the Court referenced the
constitutionality of electrocution in both Glossip
and Baze, See Glossip, 135 S.Ct. at 2732 ("In
In re Kemmler, the Court rejected a challenge to the
use of the electric chair. And the Court did not retreat from
that holding even when presented with a case in which a
State's initial attempt to execute a prisoner by
electrocution was unsuccessful. Louisiana ex rel Francis
v. Resweber, 329 U.S. 459, 463-64 (1947) (parallel
citation omitted)); Baze, 553 U.S. at 48-49
("We carried [the principle that forbidden punishments
included those where there was a deliberate infliction of
pain for the sake of pain] further in In re Kemmler.
There we rejected an opportunity to incorporate the Eighth
Amendment against the States in a challenge to the first
execution by electrocution to be carried out by the State of
New York. In passing over that question, however, we
observed: 'Punishments are cruel when they involve
torture or a lingering death; but the punishment of death is
not cruel, within the meaning of that word as used in the
Constitution. It implies there something inhuman and
barbarous, something more than the mere extinguishment of
life.'" (citation omitted)).
 Ala. Code § 15-18-82; Ark. Code
Ann. § 5-4-617; Fla. Stat. § 922.105; Ky. Rev.
Stat. § 431.220; 22 Okla. Stat. § 1014; S.C. Code.
Ann. § 24-3-530; Tenn. Code Ann. § 40-23-114; Va.
Code Ann. § 53.1-234; 18 U.S.C. § 3596.
Dr. Groner conceded during his
testimony that he is unfamiliar with Virginia's
electrocution protocol and that his opinions are based solely
on injuries that he observed on two patients who survived a
severe electrocution. (Prelim. Inj. Hr'g Tr.
 See, e.g., Arthur,
840 F.3d at 1314-20, petition for cert, filed, No.
16-602 (U.S. Nov. 3, 2016); Arthur v. Dunn, ___ F.3d
___, 2016 WL 3912038, at *2 n.5 (M.D. Ala. July 19, 2016);
Boyd v. Myers, No. 2:14-cv-1017-WKW, 2015 WL
5852948, at *4 (M.D. Ala. Oct. 7, 2015); Kelley v.
Johnson, 496 S.W.3d 346, 359-60 (Ark. 2016),
petition for cert, filed, No. 16-6496 (U.S. Oct. 20,
 This Court lacks the authority
to order that Virginia adopt a specific protocol. See
Baze, 553 U.S. at 52 n.3 ("[C]ourts have neither
the authority nor the expertise to function as boards of
inquiry determining best practices for executions.").
Even if the Court had the authority to do so, none of the
named Defendants in this case have the power to unilaterally
amend Virginia's method-of-execution statute in order to
adopt a hypothetically ordered protocol.
 In the context of
Virginia's statutory bar preventing prisoners from making
Freedom of Information Act requests, the Fourth Circuit has
generally disclaimed the notion that a prisoner has a right
to "discover grievances, and to litigate effectively
once in court." Giarratano v. Johnson, 521 F.3d
298, 306 (4th Cir. 2008) (citation omitted).
The Ninth Circuit is the only
circuit court to reach the opposite conclusion. In a First
Amendment challenge to Arizona's secrecy statute, the
Ninth Circuit reversed the district court's denial of
plaintiff s motion for a preliminary injunction. Wood v.
Ryan, 759 F.3d 1076, 1088 (9th Cir. 2014). However, the
United States Supreme Court promptly reversed and vacated
that opinion. Ryan v. Wood, 135 S.Ct. 21