Ward v. Arnold

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ROY LEE WARD,

Plaintiff,

v. CAUSE NO. 3:25-CV-800-CCB-SJF

LLOYD ARNOLD, et al.,

Defendants.

OPINION AND ORDER

Roy Lee Ward, by counsel, filed an amended complaint. ECF 22. Ward is a

prisoner who resides at the Indiana State Prison, and the Indiana Supreme Court set his

execution before the hour of sunrise of October 10, 2025. Under 28 U.S.C. § 1915A, the

Court must review the merits of a prisoner complaint and dismiss it if the action is

frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief against a defendant who is immune from such relief.

On September 21, 2025, the Court allowed Ward to proceed on Claim 4 relating

to the method of execution, which primarily focused on his concerns about the use of

compounded pentobarbital.1 ECF 11. The State defendants then submitted an affidavit

from the Warden of the Indiana State Prison attesting that the State intended to use

manufactured pentobarbital. ECF 19-1. As a result, the Court found pursuant to Fed. R.

Civ. P. 56(f) that summary judgment was likely appropriate on Claim 4 and ordered

1 The Court did not address Claims 1, 2, 3, and 5 in this initial order.

Ward to either show cause as to why summary judgment should not be entered on

Claim 4 or to file an amended complaint. ECF 20. Ward opted to file an amended

complaint. ECF 22.

Claim 4 – Method of Execution

The amended complaint asserts five constitutional claims under 42 U.S.C.

§ 1983.2 The Court first examines the newly amended Claim 4. There, Ward challenges

the use of pentobarbital in general because it causes pulmonary edema. He also raises

concerns about the State obtaining pentobarbital from unknown, unregulated suppliers,

including an increased risk of improper storage, improper transportation, adulteration,

and tampering. For alternative methods of execution, Ward proposes fentanyl in

addition to pentobarbital, a firing squad, or nitrogen hypoxia.

To challenge a method of execution, a prisoner must “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 v. Gross, 576 U.S. 863, 877 (2015).

However, “prisoners cannot successfully challenge a State’s method of execution

merely by showing a slightly or marginally safer alternative.” Id. “Instead, prisoners

must identify an alternative that is feasible, readily implemented, and in fact

significantly reduces a substantial risk of severe pain.” Id. The Court finds that Ward

has stated a plausible claim, and he may proceed on Claim 4 of the amended complaint.

2 The amended complaint says it does not reproduce Claims 1, 2, 3, and 5 from the original

complaint as required by N.D. Ind. L.R. 15-1(b), but clarifies that Ward is not abandoning them. ECF 22

¶11. Given the exceptional time constraints of this case, under L.R. 1-1(b), the Court suspends L.R. 15-1(b)

and accepts the incorporation of Claims 1, 2, 3, and 5 into the amended complaint by reference.

See In re Fed. Bureau of Prisons' Execution Protocol Cases, 980 F.3d 123, 131-33 (D.C. Cir.

2020) (finding that a substantially similar claim stated a plausible Eighth Amendment

method of execution claim). A scheduling order relating to this claim will soon follow.

Next, the Court addresses the four remaining claims, which are as follows:

Claim 1: The State is violating Ward’s constitutional right “to have what

transpires during his execution” fully accessible to his witness by blocking

sound from the execution chamber;

Claim 2: The State is violating Ward’s First Amendment right to petition

the government for redress of grievances by failing to provide Ward with

information about his method of execution;

Claim 3: The State is violating Ward’s right to substantive due process by

failing to provide Ward with information about his method of execution;

and

Claim 5: The State is violating Ward’s right to procedural due process by

arbitrarily depriving him of the ability to confirm that the State has not

infringed on his right to select execution witnesses by installing a one-way

mirror in the execution room. The State is also violating Ward’s right

against cruel and unusual punishment by depriving him of the ability to

view his witnesses during his execution.

Claim 1 – Soundproofing in the Execution Chamber

In Claim 1, Ward asserts that the State is violating his constitutional right “to

have what transpires during his execution fully accessible to those who witness his

execution and by blocking sound from the execution chamber.” ECF 1 at 62. He alleges

that witnesses of the execution of Benjamin Ritchie, which took place in May 2025,

reported that they could hear no sound from the execution chamber even when Ritchie

appeared to be talking or singing. He alleges that, without sound, witnesses to his

execution will be unable to hear cries of pain and thus be less able to determine whether

the State has executed him fairly and humanely.

In support of this claim, Ward invokes the First Amendment right of access to

governmental proceedings. However, the State is not depriving Ward himself of the

ability to hear sounds from the execution chamber, and Ward lacks standing to raise

this claim on behalf of the press or members of the public. See Wilson v. Lane, 870 F.2d

1250, 1255 (7th Cir. 1989) (“[A] litigant generally must assert his or her own legal rights

and cannot rest a claim for relief on the legal rights or interests of third parties.”). While

there are exceptions to the standing requirement, these exceptions do not apply where

the third party is able to assert its own rights. Id. Significantly, numerous media

companies are now pursuing injunctive relief against the State of Indiana in connection

with their right to witness executions. Associated Press v. Neal, 1:25-cv-872 (S.D. Ind. filed

May 5, 2025). In other words, the third parties here are not only capable of asserting

their own rights, they are actively doing so.

In State litigation, Ward responded to the State’s standing argument by framing

the claim as a violation of “his own First Amendment right to be heard from the

chamber,” asserting that he has a right to “physically be heard if [people] want to

listen.” Corrected Reply Brief in Support of Successive PCR Petition at 24, Ward v. State,

Case No. 25S-SD-167 (Ind. filed June 30, 2025). “[A] prison inmate retains those First

Amendment rights that are not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S.

817, 822 (1974). “[W]hen a prison regulation impinges on inmates’ constitutional rights,

the regulation is valid if it is reasonably related to legitimate penological

interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).

For this inquiry, the relevant factors include: “(1) whether there is a valid,

rational connection between the prison regulation and the legitimate governmental

interest put forward to justify it; (2) whether the inmates have access to alternative

means of exercising the restricted right; (3) the impact an accommodation of the

asserted constitutional right will have on guards and other inmates, and on the

allocation of prison resources generally; and (4) whether the regulation is an

exaggerated response to prison concerns.” Van den Bosch v. Raemisch, 658 F.3d 778, 785

(7th Cir. 2011). “While the burden of persuasion is on the prisoner to disprove the

validity of a regulation, defendants must still articulate their legitimate governmental

interest in the regulation.” Id. “Courts are to accord substantial deference to the

professional judgment of prison administrators, who bear a significant responsibility for

defining the legitimate goals of a corrections system and for determining the most

appropriate means to accomplish them.” Id.

The Court first considers whether there is a valid, rational connection between

the soundproof execution chamber and the State’s reasons for declining to remove the

soundproofing. In State Court briefing, the State defended against this claim by

representing that “the [current execution] procedure prevents the execution from

becoming an unnecessary spectacle by limiting witness access to the execution process

to only those the legislature has deemed necessary to ensure the safety and efficacy of

that process and those involved in it.” Response in Opposition to Successive Post-

Conviction Petition at 51-52, Ward v. State, Case No. 25S-SD-167 (Ind. filed June 30,

2025). Notably, the lethal injection procedure requires that the State of Indiana maintain

the confidentiality of the identities of those assisting with the execution, while also

allowing up to thirteen witnesses consisting of the inmate’s invitees, which may include

press members, and the victim’s family. ECF 1-1 at 2-3. The lethal injection procedure

also sets forth specific details on inserting venous catheters into the inmate’s arms,

injecting the lethal chemicals, and verifying the death of the inmate. Id. at 8-12.

The soundproof execution chamber thus serves to allow those assisting the

Warden with the execution to communicate as necessary to properly execute the inmate

without fear of witnesses identifying them by their voices or by others using their

names. Certainly, the safety of correctional staff qualifies as a legitimate governmental

interest. Bell v. Wolfish, 441 U.S. 520, 546 (1979) (“[M]aintaining institutional security and

preserving internal order and discipline are essential goals that may require limitation

or retraction of the retained constitutional rights of both convicted prisoners and

pretrial detainees.”). The State also has a legitimate governmental interest in ensuring

that the inmate’s execution is administered with the care necessary to ensure that it

complies with the Eighth Amendment guarantee against cruel and unusual

punishment. Consequently, there is a valid, rational connection between the

soundproof nature of the execution chamber and the State’s legitimate interests.

The Court next considers whether Ward has alternative means to alert witnesses

to any potential pain. While the soundproofing may prevent Ward from being heard in

the final moments of his life, it does not entirely prevent him from conveying pain. As

detailed by Ward in the complaint, five witnesses observed Benjamin Ritchie, an inmate

executed in May 2025, “violently lurching forward” after receiving the pentobarbital

injection. ECF 1 at 51-31. It also seems likely that the witnesses could have seen more

subtle expressions of pain given that in Ritchie’s final moments, witnesses were able to

count his last breaths and to see the emotional reaction of his spiritual advisor. See id.

The Court also considers the impact of removing the soundproofing and whether

the soundproofing is an exaggerated response to prison concerns. On this limited

record, it is difficult to assess the likelihood of correctional staff being identified by

voice or by use of their name without soundproofing or the negative consequences that

such an identification might incur. The Court similarly has little information to assess

the practical difficulty in removing soundproofing from the execution. However, the

potential effect of removing the soundproofing on correctional staff performing the

execution procedures is somewhat less abstract. Concerns about identification might

encourage correctional staff to lower their voices, rendering communication less

effective and misunderstandings more likely, or such concerns might simply distract

them, thereby increasing the likelihood of mistakes in the execution process. Catcalls,

crying, or other forms of emotional expression from the witnesses might similarly

distract correctional staff as they perform the medically adjacent procedures that are

critical to execution.

In sum, each of the relevant factors weighs in favor of the State defendants. As a

result, the Court finds that the soundproofing of the execution chamber is reasonably

related to the State’s legitimate penological interests in maintaining the safety of

correctional staff and in ensuring that the execution process complies with the Eighth

Amendment. Therefore, the Court will dismiss Claim 1 for failure to state a valid claim.

Claims 2 & 3 – Denial of Execution-Related Information

In Claim 2, Ward asserts that the State of Indiana is violating his First

Amendment right to access the courts by refusing to respond to his public records

requests for information relating to the lethal injection protocol and his method of

execution. Ward further asserts that the State has thereby “erected a condition that

frustrates Ward’s ability to litigate his claims related to the constitutionality of his

execution.” ECF 1 at 63. “To determine whether a plaintiff has meaningful and effective

access to Court, we require the plaintiff to identify: (1) a nonfrivolous, underlying claim;

(2) the official acts frustrating the litigation; and (3) a remedy that may be awarded as

recompense but that is not otherwise available in a suit or settlement.” Harer v. Casey,

962 F.3d 299, 308 (7th Cir. 2020).

The Court understands Ward’s frustrations with the lack of information

regarding his execution but notes that Ward is actively litigating a method-of-execution

claim in this lawsuit. Specifically, as set forth above, the Court is allowing Ward to

proceed on a claim of injunctive relief against the defendants to ensure that the method

in which he is executed does not violate the Eighth Amendment. “[A]n access-to-court

claim ordinarily may not proceed at the same time and in the same case as a timely-filed

underlying claim; a remedy cannot be ineffective if it is yet to be realized.” Harer, 962

F.3d at 309. “The filing of a case undermines the argument that an individual lacks

access to court.” Id. “[T]here is . . . no point in spending time and money to establish the

facts constituting denial of access when a plaintiff would end up just as well off after

litigating a simpler case without the denial-of-access element.” Id. at 310. “Discovery

provides . . . access to information, and as a result, access to court.” Id. Because judicial

remedies remain available to Ward, namely his method-of-execution claim, he may not

proceed on a related interference with access to the courts claim.

In Claim 3, Ward asserts his right to substantive due process as the constitutional

basis for a claim against the State of Indiana for refusing his requests for information.

The Due Process Clause has a substantive and procedural component. But

the scope of substantive due process is very limited. Substantive due

process protects against only the most egregious and outrageous

government action. When stating a claim, a plaintiff must allege that the

government violated a fundamental right or liberty. Such a violation must

have been arbitrary and irrational. Courts should also be reluctant to

expand the concept of substantive due process because guideposts for

responsible decisionmaking in this unchartered area are scarce and open-

ended.

Lukaszczyk v. Cook Cnty., 47 F.4th 587, 599 (7th Cir. 2022). “Because [the Supreme Court

has] always been reluctant to expand the concept of substantive due process, [it] held in

Graham v. Connor, 490 U.S. 386 (1989), that where a particular Amendment provides an

explicit textual source of constitutional protection against a particular sort of

government behavior, that Amendment, not the more generalized notion of substantive

due process, must be the guide for analyzing these claims.” Cnty. of Sacramento v. Lewis,

523 U.S. 833, 842 (1998). Notably, in Claim 3, Ward rests on the same facts and asserted

injury that he presented for Claim 2, his interference with access to the courts claim.

Against this legal backdrop, the Court finds that Claim 3 is more appropriately

construed as an interference of access to the courts claim. The analytical framework for

interference with access to the courts presumes a substantive right to court access. See

Snyder v. Nolen, 380 F.3d 279, 291 (7th Cir. 2004) (“The right of individuals to pursue

legal redress for claims that have a reasonable basis in law or fact is protected by the

First Amendment right to petition and the Fourteenth Amendment right to substantive

due process.”). Consequently, the same reasoning that supports the denial of Claim 2

also supports denying Claim 3. Therefore, Ward may not proceed on Claim 3 because it

does not state a valid claim.

Claim 5 – Ability to See Witnesses from the Execution Chamber

In Claim 5, Ward asserts that the State is violating Ward’s right to procedural

due process by arbitrarily depriving him of the ability to confirm that the State has not

infringed on his statutory right to invite execution witnesses by installing a one-way

mirror in the execution room. “To determine whether [a procedural due process]

violation occurred, we first ask whether [the plaintiff] has been deprived of a protected

liberty or property interest; and second, we ask whether that deprivation occurred

without due process.” GEFT Outdoors, LLC v. City of Westfield, 922 F.3d 357, 365 (7th Cir.

2019).

“Stated simply, a State creates a protected liberty interest by placing substantive

limitations on official discretion.” Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 462,

(1989). “[T]he most common manner in which a State creates a liberty interest is by

establishing substantive predicates to govern official decision-making and, further, by

mandating the outcome to be reached upon a finding that the relevant criteria have

been met.” Id. The Court has examined the Indiana statute and the lethal injection

protocol. Ind. Code § 35-38-6-6; ECF 1-1. They each contain identical language allowing

the Warden to “exclude a person from viewing the execution if the warden determines

that the presence of the person would threaten the safety or security of the state prison

and sets forth this determination in writing.” Id. The relevant authority provides some

substantive predicate to govern the Warden’s decision on whether to exclude witnesses;

namely whether that witness’s presence would threaten the safety or security of the

facility. Consequently, the Court declines to find a lack of a statutorily protected interest

at the screening stage.

The Court next considers the adequacy of a remedy for a violation of Ward’s

purported statutory right to invite witnesses. “In evaluating what process satisfies the

Due Process Clause, . . . the Supreme Court has distinguished between (a) claims based

on established state procedures and (b) claims based on random, unauthorized acts by

state employees.” Leavell v. Illinois Dep’t of Nat. Res., 600 F.3d 798, 804 (7th Cir. 2010). “If

the plaintiff alleges that the deprivation is pursuant to an established state procedure,

the state can predict when it will occur and is in the position to provide a pre-

deprivation hearing.” Id. “By contrast, when the state conduct in question is random

and unauthorized, the state satisfies procedural due process requirements so long as it

provides a meaningful post-deprivation remedy.” Id. “[I]njunctive relief to remedy

unconstitutional prison conditions must be narrowly drawn, extend no further than

necessary to remedy the constitutional violation, and use the least intrusive means to

correct the violation of the federal right.” Westefer v. Neal, 682 F.3d 679, 681 (7th Cir.

2012).

Notably, Ward has not alleged that the State of Indiana has attempted to deprive

him of the right to invite witnesses, nor has presented any facts suggesting that the State

of Indiana is likely to do so. It thus appears that Ward’s concerns are with arbitrary

deprivations and post-deprivation remedies. However, execution is a special

circumstance in which it is impossible for the State of Indiana (or this Court through an

injunction) to provide Ward any post-deprivation remedy to vindicate his constitutional

rights. Death is the inevitable and immediate result of an execution. Even granting

Ward’s request and ordering the State of Indiana to remove the one-way mirror would

allow Ward only the opportunity to identify a potential violation of his statutory right

to invite witnesses, but it would not amount to a post-deprivation remedy for an

arbitrary deprivation. Given the impossibility of providing post-deprivation remedies

in the context of executions, the Court declines to allow Ward to pursue Claim 5 as a

procedural due process violation.

Ward also asserts that depriving him of the ability to view his witnesses violates

his Eighth Amendment guarantee against cruel and unusual punishment. The Eighth

Amendment prohibits “punishments which are incompatible with the evolving

standards of decency that mark the progress of a maturing society, or which involve the

unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102 (1976).

Significantly, the Supreme Court of the United States has held in the context of

executions that “[t]he denial of prison access to a particular visitor is well within the

terms of confinement ordinarily contemplated by a prison sentence and therefore is not

independently protected by the Due Process Clause.” Kentucky Dep’t of Corr. v.

Thompson, 490 U.S. 454, 461 (1989). No amount of procedural due process can authorize

the State to violate the Eighth Amendment by inflicting cruel and unusual punishment,

so it necessarily follows that depriving Ward of the ability to view his witnesses during

the execution also does not violate the Eighth Amendment. See Gillis v. Litscher, 468 F.3d

488, 492 (7th Cir. 2006) (explaining the relationship between liberty interests and Eighth

Amendment violations). Therefore, Ward may not proceed on Claim 5 under the Eighth

Amendment.

As a final matter, the Court clarifies that it does not necessarily condone the

purported State practices described by Ward in Claims 1, 2, 3, and 5. Through these

claims, Ward raises legitimate concerns regarding his execution. For example, it is not

difficult for the Court to imagine why Ward would prefer to have the ability to see his

invited witnesses in the final moments of his life. But, based on the legal precedent to

which this Court is bound, these concerns do not rise to the level of constitutional

violations.

For these reasons, the Court:

(1) GRANTS Roy Lee Ward leave to proceed on an Eighth Amendment claim

against the Commissioner of the Indiana Department of Correction and the Warden of

the Indiana State Prison in their official capacities for permanent injunctive relief to

ensure that the method in which he is executed does not violate the Eighth Amendment

on the theories detailed in this Order;

(2) DISMISSES all other claims;

(3) ORDERS, under 42 U.S.C. § 1997e(g)(2), the defendants to file an answer by

September 26, 2025, only to the claim for which the plaintiff has been granted leave to

proceed in this screening order;

(4) GRANTS the motion for leave to file an exhibit (ECF 23); and

(5) ORDERS Roy Lee Ward to file the exhibit by September 26, 2025.

SO ORDERED on September 25, 2025.

/s/Cristal C. Brisco

CRISTAL C. BRISCO, JUDGE

UNITED STATES DISTRICT COURT