Jack Harold Jones, Jr. Plaintiff- Appellant
Wendy Kelley, Director, Arkansas Department of Correction, in her official capacity; Rory Griffin, Deputy Director, Arkansas Department of Correction, in his official capacity; Dale Reed, Chief Deputy Director, Arkansas Department of Correction, in his official capacity Defendants-Appellees
Submitted: April 22, 2017
from United States District Court for the Eastern District of
Arkansas - Pine Bluff
RILEY, GRUENDER, and BENTON, Circuit Judges.
Harold Jones, Jr. appeals the district
court's order denying a preliminary injunction,
and he moves for a stay of his execution scheduled for
tonight, April 24, 2017. Jones argues that, because of his
specific medical conditions, the administration of the
Arkansas Department of Correction's ("ADC")
lethal-injection protocol will inflict cruel and unusual
punishment on him in violation of the Eighth Amendment. We
affirm the district court's order and deny his motion for
6, 1995, Jones entered an accounting office where Mary
Phillips worked as a bookkeeper. On this day, Mary's
eleven-year-old daughter, Lacy, was with her. Jones robbed
the business at gunpoint, then took Mary and Lacy into a
small break room. He tied Lacy to a chair in the bathroom
adjacent to the break room, then returned to Mary. While Lacy
sat, bound to a chair, in an adjacent room, Jones bludgeoned,
raped, and strangled Mary to death. Afterwards, Jones
severely beat and strangled Lacy, leaving her for dead. Lacy
later regained consciousness, identified her assailant to
police, and testified at Jones's trial. Jones was
convicted of capital murder, rape, and attempted capital
murder, and he was sentenced to death in 1996. Jones v.
State, 8 S.W.3d 482, 483-86 (Ark. 2000); Jones v.
State, 947 S.W.2d 339, 340 (Ark. 1997).
years later, Jones still has not been executed. Instead,
Jones, along with other death-row inmates, has delayed his
execution through a series of lawsuits challenging different
aspects of Arkansas's method-of-execution statute and the
ADC's lethal-injection protocol. See, e.g.,
Hobbs v. McGehee, 458 S.W.3d 707 (Ark. 2015);
Hobbs v. Jones, 412 S.W.3d 844 (Ark. 2012); Ark.
Dep't of Corr. v. Williams, 357 S.W.3d 867 (Ark.
2009). Due in part to this stream of litigation, Arkansas has
not carried out an execution since 2005-until last week.
2015, the Arkansas legislature amended its
method-of-execution statute to authorize the use of a
three-drug protocol: midazolam, followed by vecuronium
bromide, followed by potassium chloride. See Ark.
Code Ann. § 5-4-617 (2015). In April 2015, Jones and
other inmates challenged the legality of this protocol under
the Arkansas Constitution in state court. Last year, the
Arkansas Supreme Court dismissed their claims, and the United
States Supreme Court denied certiorari on February 21, 2017.
Kelley v. Johnson, 496 S.W.3d 346, 355-60 (Ark.
2016), cert. denied, 137 S.Ct. 1067 (2017). Six days
later, on February 27, 2017, Arkansas Governor Asa Hutchinson
scheduled executions for Jones and seven other inmates to
occur in April 2017.
March 27, 2017, three weeks before the first scheduled
execution, Jones and the other seven inmates initiated yet
another lawsuit challenging the lethal-injection protocol.
This time, they brought an action in federal court under 42
U.S.C. § 1983, alleging that the protocol violates the
Eighth and Fourteenth Amendments of the United States
Constitution. As they did in state court, the inmates argued
that the protocol will result in cruel and unusual punishment
because midazolam cannot render the inmates insensate to the
pain caused by the other two drugs in the protocol. On April
15, 2017, after conducting a four-day evidentiary hearing,
the district court entered a preliminary injunction staying
all of the executions while the case proceeded. We vacated
the district court's stays of execution in McGehee v.
Hutchinson, No. 17-1804, slip op. at 8 (8th Cir. Apr.
17, 2017) (en banc) (per curiam).
McGehee, we held that the inmates were not entitled
to a stay for three reasons. First, we held that the
inmates' use of "dilatory tactics" was
sufficient reason to deny a stay. Id. at 4. Second,
we held that "[t]he equivocal evidence recited by the
district court falls short of demonstrating a significant
possibility that the prisoners will show that the Arkansas
protocol is 'sure or very likely' to cause severe
pain and needless suffering." Id. at 6 (quoting
Glossip v. Gross, 135 S.Ct. 2726, 2737 (2015)).
Third, we held that "the availability of the several
[alternative] methods cited by the district court is too
uncertain to satisfy the rigorous standard under the Eighth
Amendment." Id. at 7.
thereafter, Jones filed this as-applied challenge to the
protocol and requested a preliminary injunction. Jones argued
that even if the protocol does not violate his fellow
inmates' Eighth Amendment rights, it violates his Eighth
Amendment rights because his specific medical conditions
create a risk that the lethal-injection protocol will affect
him differently than an average healthy inmate and will cause
him severe pain. After conducting an evidentiary hearing, the
district court denied Jones's motion for a preliminary
injunction. Jones now appeals and moves for a stay of his
review a district court's denial of a preliminary
injunction for an abuse of discretion." Powell v.
Noble, 798 F.3d 690, 697 (8th Cir. 2015); see also
Jones v. Hobbs, 604 F.3d 580, 582 (8th Cir. 2010) (per
curiam). "An abuse of discretion occurs where the
district court rests its conclusion on clearly erroneous