United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
Time Has Come
he is not a party, Carey Dean Moore is at the center of this
lawsuit. Legal realism and common decency require that he not
Moore is scheduled to die by lethal injection on Tuesday,
August 14, 2018, at 10:00 a.m. Mr. Moore, 60, has spent
nearly four decades on death row for the coldly calculated
1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard
the present one, the Nebraska Supreme Court has given Mr.
Moore seven execution dates. This time Mr. Moore wants his
death sentence to be carried out, and he has directed his
court-appointed lawyers to do nothing. Indeed, Mr. Moore has
sought to have his lawyers dismissed. There is absolutely no
doubt of his competence or his guilt. I will not allow the
Plaintiff to frustrate Mr. Moore and the laws of the State of
Nebraska by Plaintiff's last-minute lawsuit.
drug protocol that will be used to kill Mr. Moore has been
publicly available since November 9, 2017, when Director
Frakes publicly notified another death row inmate of the four
drugs that would be used. On January 19, 2018, Director
Frakes gave the same public notice to Mr. Moore. See
Nebraska Department of Corrections, NDCS Provides Notice
of Substances to be Employed in an Execution by Lethal
Injection (January 19, 2018). The four drugs that are to
be used to carry out the death penalty are: (1) Diazepam; (2)
Fentanyl Citrate; (3) Cisatracurium Besylate; and (4)
April 3, 2018, the Nebraska Attorney General sought a death
warrant from the Nebraska Supreme Court. On May 25, 2018, the
State of Nebraska filed a motion to expedite consideration of
the motion for execution warrant. Attached to that motion was
an affidavit of Director Frakes that represented under oath
Nebraska Department of Correctional Services has possession
of the substances to be administered for execution by lethal
injection, all of which have expiration dates as follows:
a. Diazepam, expiration date of September 1, 2019;
b. Fentanyl Citrate, expiration date of August 31, 2019;
c. Cisatracurium Besylate, expiration date of October 31,
2018; and d. Potassium Chloride, expiration date of
August 31, 2018.
substances were obtained from a licensed pharmacy in the
United States, and have been chemically analyzed and verified
as required by 69 Neb. Admin. Code, ch. 11, § 008.
5, 2018, the Nebraska Supreme Court issued the death warrant.
The court set the execution date for August 14, 2018, at a
time to be chosen by the Department of Corrections. The
Department of Corrections decided to execute the warrant at
24, 2018, the President and Chief Executive Officer of the
Plaintiff sent a letter to the Governor of Nebraska,
presumably by United States mail. (Filing No. 1-6, Ex. E to
the Complaint.) Noting that he had written “your
predecessor on more than one occasion regarding lethal
injection, ” the author made a demand upon the
Governor. The author demanded that “you immediately
disclose the quantities, lot numbers, inventory logs, and
invoices for any Fresenius Kabi drugs the state may have
acquired for executions, and that you return any such drugs
to us without delay.” According to the Plaintiff, in a
letter dated July 31, 2018, and mailed August 1, 2018, an
aide to the Governor responded that Plaintiff's letter
was construed as a public records request and that the
Governor did not have custody of those records. (Filing No.
11 at CM/ECF p. 3 n.1.)
the close of business on Tuesday, August 7, 2018, and at 5:55
p.m., the Plaintiff filed the complaint in this matter. The
Plaintiff alleged that it manufactured and distributed
Cisatracurium Besylate (“Cisatracurium”) and
Potassium Chloride (“KCL”). It alleged that the
Nebraska Department of Corrections planned to use both of
these drugs to execute Moore, and the Plaintiff suspected
that these drugs had been obtained improperly from
distributors doing business with the Plaintiff.
complaint does not seek damages. It seeks injunctive and
declaratory relief. It sets forth six counts.
seeks a temporary restraining order prohibiting Defendants
from employing the Cisatracurium and KCL improperly or
illegally obtained from Plaintiff in the execution of Mr.
Moore. Count II alleges tortious interference with business
relationships in that one or more of the Defendants are
alleged to have obtained Cisatracurium and KCL in violation
of Plaintiff's policies and distribution agreements.
Count III sets out a section 1983 claim alleging that the
Defendants, acting under color of state law, through the
procurement and threatened use of Cisatracurium and KCL, will
proximately cause interference with in terstate commerce if
they do not return the drugs. Count IV alleges another
section 1983 claim based upon alleged violation of the Due
Process Clause because of the Defendants' refusal to
return the two drugs and the lack of any state-law procedure
to contest the use of Plaintiff's products in executions.
Count V is a replevin action seeking return of the
Cisatracurium and KCL obtained from Plaintiff or from ...