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Ward v. Carter

Court of Appeals of Indiana

June 1, 2017

Roy Lee Ward, Appellant-Plaintiff,
v.
Robert E. Carter, Jr., Commissioner of the Indiana Department of Correction, and Ron Neal, Superintendent of the Indiana State Prison, in their official capacities, Appellees-Defendants

         Appeal from the LaPorte Circuit Court Trial Court Cause No. 46C01-1512-PL-2154 The Honorable Thomas J. Alevizos, Judge

          Attorney for Appellant David W. Frank Christopher C. Myers & Associates Fort Wayne, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Stephen R. Creason Chief Counsel Indianapolis, Indiana

          Baker, Judge.

         [¶1] Roy Lee Ward is an Indiana inmate on death row. In 2014, the Department of Correction (DOC) internally adopted a new method of lethally injecting inmates; the new method includes a cocktail of drugs that has never been administered in an execution in the United States. Ward filed a claim seeking injunctive and declaratory relief, arguing that the DOC was required to promulgate this new policy as a rule under the Administrative Rules and Procedure Act (ARPA).[1] The State filed a motion to dismiss the claim, which the trial court granted. Ward now appeals. Finding that the General Assembly has not exempted the DOC from ARPA and that the statutory definition of "rule" clearly includes the DOC's execution protocols, we reverse.

         Facts[2]

         [¶2] In 2007, Ward was sentenced to death by execution in Indiana. He is currently imprisoned at Indiana State Prison in LaPorte County. State officials, through the DOC, administer all state executions, which occur by the intravenous injection of lethal substances. In May 2014, State officials announced that they had adopted a new rule in their execution protocol. The new rule was not promulgated under ARPA but was instead adopted informally as an internal DOC policy.

         [¶3] This new rule, which was effective immediately, provided that all prisoners sentenced to death in Indiana (including Ward) would be executed by a new combination of three drugs-methohexital (known by the brand name Brevital), pancuronium bromide, and potassium chloride. No prisoner of any state nor of the federal government has ever been executed with this particular combination of drugs.

         [¶4] On December 22, 2015, Ward filed a complaint seeking injunctive relief and a declaratory judgment. His essential argument was that because this new rule was not promulgated under ARPA, it is unlawful and violates his rights under ARPA and his right to due process under the state and federal constitutions. On March 29, 2016, the State filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(6), arguing that Ward had failed to state a claim on which relief could be granted. Essentially, the State contended that ARPA did not apply to the adoption of this new rule and that, consequently, no due process violation had occurred. Following a hearing, the trial court granted the motion and dismissed Ward's complaint.[3] Ward now appeals.

         Discussion and Decision

         [¶5] We apply a de novo standard of review to a trial court's order granting a Rule

         12(B)(6) motion to dismiss a complaint for failure to state a claim. Allen v.

          Clarian Health Partners, Inc., 980 N.E.2d 306, 308 (Ind. 2012). A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint, not the facts supporting it. Id. In conducting our review, we must take all allegations of the complaint as true, construing them in the light most favorable to the plaintiff, to determine whether the complaint states any facts upon which the trial court conceivably could have granted relief. Id. We will reverse an order granting such a motion if there is any set of circumstances under which a plaintiff would be entitled to relief. Id.

         [¶6] Ward argues that the method in which the State adopted this new execution policy violated his rights under ARPA and his due process rights under the state and federal constitutions.

         I. Relevant ARPA Provisions

         [¶7] Under ARPA, a "rule" is ...


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