IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

JESSIE HOFFMAN and CHRISTOPHER SEPULVADO Plaintiffs v.

JUDGE JAMES BRADY BOBBY JINDAL, Governor of Louisiana; BURL CAIN, Warden, Louisiana State MAGISTRATE JUDGE Penitentiary; JAMES LEBLANC, Secretary, STEPHEN RIEDLINGER Louisiana Department of Public Safety and Corrections; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; ANGELA NORWOOD, Warden, Death Row; and JOHN DOES, unknown executioners, Defendants _________________________________________________________________ PLAINTIFF CHRISTOPHER SEPULVADOS MOTION FOR A STAY OF EXECUTION, A TEMPORARY RESTRAINING ORDER, A PRELIMINARY INJUNCTION, AND AN ORDER UNDER THE ALL WRITS ACT STAYING HIS EXECUTION __________________________________________________________________ Plaintiff Christopher Sepulvado moves for a stay of execution, and, pursuant to Federal Rule of Civil Procedure 65(a) and (b), for a temporary restraining order ("TRO") and a preliminary injunction. Sepulvado moves to stay the death warrant issued by the district court of Louisiana and to bar Defendants and each of them, and/or their agents, from acting jointly or severally to implement any part of their written execution protocol as to him. Sepulvado

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CIVIL ACTION NO. 3:12-cv-00796

similarly seeks to bar the same from attempting to execute him on February 5, 2014, by means of Defendants' execution protocol and policies which will deprive him of his rights in violation of the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. 1983. Plaintiff Christopher Sepulvado is scheduled to be executed on February 5, 2014. As of January 24, 2014, the Defendants did not have any pentobarbital in their possession. The

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Defendants have had since September 2013 to obtain replacement drugs when their own supply of FDA pentobarbital expired. They refused to obey discovery requests ordered by the

Magistrate to be sent by October of last year disclosing what drugs they would use in forth coming executions despite Magistrate Judge Riedlinger earlier denial of a protective order. Defendants' protocol has been a frustratingly moving target. In the face of such a grave

consequence as the death penalty, this Court should decline to reward the Defendants' attempts to prevent Plaintiffs from fully litigating their claims. Since this lawsuit was initiated over a year ago the Defendants have escalated their strategy of obfuscation and delay, insisting on impeding discovery through spurious claims of state secrets so that they can evade resolution of the issues while attempting to accelerate the pace of executions in Louisiana with Mr. Sepulvado next in their cross-hairs. Mr. Sepulvado and the other, Mr. Hoffman, have developed and asserted their claims as promptly as possible. This Court is well aware of the convoluted procedural history of this litigation, and there is no question that Defendants are the source of the delays in resolving the issues. Neither Mr. Sepulvado nor his fellow plaintiff, Mr. Hoffman have been less than diligent in seeking a prompt resolution of the issues in this case. At the very least, and certainly in the event this Court declines to grant a stay of execution, TRO and preliminary injunction at this time as requested herein, Sepulvado requests that this Court, pursuant to its authority under the All Writs Act, 28 U.S.C. 1651(a), and the Anti Injunction Act, 28 U.S.C. 2283, issue an order in aid and preservation of its jurisdiction in this 1983 action prohibiting Defendants and the State of Louisiana and its agents, from

proceeding with Sepulvados execution by lethal injection on February 5, 2014, in clear disregard of this Court's jurisdiction over this litigation and Sepulvado's constitutional challenges

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to the very lethal injection protocol Defendants plan to use in Sepulvados execution. Mr. Sepulvado also seeks a stay from the Court until he has an opportunity to seek independent testing of any drug planned to Defendants plan to use in his execution. The requested order under the All Writs Act should prohibit Defendants and the State of Louisiana, and its agents, from proceeding with Sepulvados execution until such time as the necessary and proper discovery can be completed on Defendants' revised execution protocol, to allow the Court to address, in a deliberative manner and fully informed by the relevant facts and legal authorities, the merits of Sepulvados serious constitutional challenges to that newly-adopted, revised execution protocol. An order under the All Writs Act is necessary to preserve this Court's jurisdiction over a matter properly before it and to preserve the integrity of these proceedings in which Sepulvado has long been an active participant. Otherwise, Defendants will have yet again effectively undermined this Court's authority by rushing to adopt a new protocol in time to execute Sepulvado but before he has a reasonable chance to fairly litigate the serious issues the new protocol presents. An order may be issued under the All Writs Acts without any requirement for the Court to evaluate the four factors applicable to traditional injunctions. See, e.g., Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir. 2004) ("The requirements for a preliminary injunction do not apply to injunctions under the All Writs Act because a court's traditional power to protect its jurisdiction, codified by the Act, is grounded in entirely separate concerns.") In light of the immediately imminent scheduled execution date, a temporary

restraining order, preliminary injunction and stay of execution, along with a stay pursuant to the All Writs Act, are necessary to allow Sepulvado to litigate his claims before he is unconstitutionally executed.

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Mr. Sepuvaldo is requesting a TRO of only thirty days after the Defendants provide the Plaintiffs with the evidence he needs to prove his Eighth Amendment claims and to present such evidence at a hearing on his request for a preliminary injunction. This period of time will allow additional and highly productive discovery, and will also allow for regulatory authorities to investigate Plaintiffs' complaints. Defendants should not be rewarded for their constant changes of protocol and continuing delays during discovery all of which have combined to prevent Mr. Sepulvado and Mr. Hoffman from obtaining the critical evidence they need to show that Defendants' use of a defective lethal drug poses an enormous risk that Mr. Sepulvado will experience severe and unnecessary pain during his execution. Mr. Sepulvado requests expedited discovery, oral argument and an evidentiary hearing with post-hearing briefing as the Court deems necessary on his motion. attached memorandum in support. Respectfully submitted, _____/s Gary Clements______________________ Gary Clements, La. Bar Roll # 21978 Kathleen Kelly La. Bar Roll #25433 Capital Post-Conviction Project of Louisiana 1340 Poydras Street, Suite 1700 New Orleans, LA 70112 Tel. (504)212-2110 Fax (504)212-2130 Attorneys for Plaintiff Christopher Sepulvado The reasons supporting this request are explained in the

CERTIFICATE OF SERVICE I hereby certify that a copy of the above and forgoing was filed electronically with the Clerk of Court using CM/ECF on this 27th day of January, 2014. Notice of this filing as generated by the electronic filing system constitutes service of the filed document on counsel for the Respondent. ___/s Gary Clements _____ 4 Case 3:12-cv-00796-JJB-SCR Document 105 01/27/14 Page 4 of 4