Powell v. Thomas

• Decision Date: 15 June 2011
• Docket Number: No. 11–12613.,11–12613.
• Citation: 22 Fla. L. Weekly Fed. C 2165,643 F.3d 1300
• Parties: Eddie D. POWELL, Plaintiff–Appellant,v.Kim THOMAS, Interim Commissioner, Alabama Department of Corrections, individually and in his official capacity, Anthony Patterson, Warden, Holman Correctional Facility, individually and in his official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

643 F.3d 1300

22 Fla. L. Weekly Fed. C 2165

Eddie D. POWELL, Plaintiff–Appellant,

v.Kim THOMAS, Interim Commissioner, Alabama Department of Corrections, individually and in his official capacity, Anthony Patterson, Warden, Holman Correctional Facility, individually and in his official capacity, Defendants–Appellees.

No. 11–12613.

United States Court of Appeals, Eleventh Circuit.

June 15, 2011.

John Anthony Palombi, Matt D. Schulz, Fed. Pub. Defenders, Fed. Defender Program, Inc., Montgomery, AL, for Plaintiff–Appellant.J. Clayton Crenshaw, Stephanie E. Reiland, Montgomery, AL, for Defendants–Appellees.On Appeal from the United States District Court for the Middle District of Alabama.Before TJOFLAT, HULL and MARCUS, Circuit Judges.PER CURIAM:

Eddie Powell is currently on death row in Alabama.¹ He is scheduled for execution by lethal injection on Thursday, June 16, 2011 at 6:00 p.m. On May 13, 2011, Powell filed this civil rights action in the United States District Court for the Middle District of Alabama under 42 U.S.C. § 1983, contending that the Alabama Department of Corrections' (“ADOC”) recent change from sodium thiopental to pentobarbital as the first of three drugs used in the lethal injection protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment and violates his rights protected by the Due Process Clause of the Fourteenth Amendment. Powell seeks declaratory and injunctive relief aimed at stopping Alabama from executing him using its lethal injection protocol. The district court just granted the ADOC's motion to dismiss on June 9, 2011 because Powell's § 1983 action is barred by the two-year statute of limitations. Powell never moved the district court for a temporary stay of execution, although the district court observed that if Powell had moved for a stay, it would have denied the application.

On appeal, Powell argues that the district court erred in granting the motion to dismiss on statute of limitations grounds because: (1) in rejecting his claim that the ADOC's lethal injection protocol violates the Eighth Amendment, the district court relied on external evidence and dicta, and the change in lethal injection protocol is significant; and (2) his claim regarding Alabama's secrecy and arbitrary changes also accrued when the ADOC changed the first drug in the protocol. After an expedited briefing schedule and thorough review, we affirm.

We review the district court's grant of a motion to dismiss de novo, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir.2009).

The relevant facts and procedural history are these. On April 15, 2011, the Alabama Supreme Court set Powell's execution for June 16, 2011. On April 26, 2011, the ADOC publicly announced that it was changing the first drug in its lethal injection protocol from sodium thiopental to pentobarbital. Seventeen days later, Powell filed this § 1983 action in the district court, claiming that the change in protocol violated his rights under the Eighth and Fourteenth Amendments. In rejecting his claims, the district court concluded that they were brought well past the two-year statute of limitations governing § 1983 actions, since the statute of limitations for Powell's challenge to execution by lethal injection began running on July 31, 2002, the last time the state made a “significant change” in the state execution protocol by switching from electrocution to lethal injection, and therefore they expired on July 31, 2004.

Powell is not the first Alabama death row inmate to bring these constitutional causes of action. A nearly identical complaint was filed by another Alabama death row inmate, Jason Oric Williams. On May 13, 2011, Williams filed an emergency motion to intervene in Powell's action and a motion for a temporary stay of execution. The district court permitted Williams to intervene, given the overlapping “common issues of fact and law” and Williams's imminent May 19, 2011 execution date. In a memorandum opinion and order entered on May 16, 2011, the district court denied Williams's motion for a temporary stay of execution, however, and a panel of this Court affirmed that decision in a published opinion on May 19, 2011. Powell v. Thomas, 641 F.3d 1255 (11th Cir.2011) (per curiam) (styled “ Powell” because Williams intervened in this case; hereinafter “ Powell(Williams)”), cert. denied, Williams v. Thomas, ––– U.S. ––––, 131 S.Ct. 2487, 179 L.Ed.2d 1243 (2011).

In Williams's appeal, the Eleventh Circuit first addressed a § 1983 claim identical to Powell's Eighth Amendment claim, recognizing that “to prevail on such a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ ” Powell(Williams), 2011 WL 2077796, at *1 (quoting Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion)). We then rejected his claim, squarely holding that “[t]he evidence present does not demonstrate that the ADOC's use of pentobarbital creates substantial risk of serious harm to Williams.” Id.

Turning to Williams's notice claim, the Eleventh Circuit discussed, among other cases, Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), which Williams had relied on to establish an Eighth Amendment right to know the details surrounding his execution. We recognized that in Nelson, the Supreme Court had “concluded that 42 U.S.C. § 1983 was ‘an appropriate vehicle for petitioner's Eighth Amendment claim seeking a temporary stay’ based on altered execution protocols that could violate a defendant's civil rights.” Powell(Williams), 2011 WL 2077796, at *2 (quoting Nelson, 541 U.S. at 639, 124 S.Ct. 2117). The Powell (Williams ) panel then noted that in the case before it, “the district court found that the State's representations regarding the amended execution protocol were accurate and adequately informed Williams of the process that would be used.” Id. at *3. Notably, we concluded: “The replacement of sodium thiopental with pentobarbital does not constitute a significant alteration in the ADOC's lethal injection protocol, and ... such an amendment does not violate the Eighth Amendment under the cases cited by Williams.” Id. (emphasis added).

Today we are called on to determine whether, in light of our prior precedent in Powell(Williams), Powell's claims are still viable. “All constitutional claims brought under § 1983 are tort actions, subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought.” Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir.2008) (quotation omitted). In Alabama, where Powell brought this action, that limitations period is two years. See Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir.1989) (“[T]he two-year limitations period ... applies to section 1983 actions in Alabama.”).

In McNair v. Allen, 515 F.3d 1168 (11th Cir.2008), we set out the triggering dates for the statute of limitations for a challenge to a method of execution. We held that an inmate's “method of execution claim accrues on the later of the date on which state review is complete, or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.” Id. at 1174 (emphasis added). As we discussed in McNair, in July 2002, the state of Alabama implemented a new execution protocol, changing the “preferred method of execution from electrocution to lethal injection.” Id. at 1177. Inmates on death row at that time, including Powell, had thirty days to opt out of the lethal injection protocol and elect execution by electrocution. For any death row inmate who did not choose electrocution, July 31, 2002 was the date “when it became clear he would be executed by lethal injection,” and thus, was the date when the running of the statute of limitations commenced. Id. Simply put, that meant that, in McNair, the statute of limitations for the death row inmate's § 1983 Eighth Amendment claim challenging Alabama's lethal injection protocol began to run on July 31, 2002. And, “absent a significant change in the state's execution protocol (which did not occur in [that] case),” the inmate was required to bring his claim by July 31, 2004, which was “more than two years before his complaint was filed.” Id. The inmate's claim was, therefore, barred by the two-year statute of limitations.

Here, Powell's conviction and sentence became final on October 1, 2001, when the United States Supreme Court denied Powell's petition for a writ of certiorari on direct review of his conviction and sentence. Powell v. Alabama, 534 U.S. 904, 122 S.Ct. 236, 151 L.Ed.2d 170 (2001). The statute of limitations was not triggered on that date because, “at that time, Alabama had not yet adopted lethal injection as a form of execution.” Id. Hence, Powell's challenge to execution by lethal injection accrued on July 31, 2002, absent a later “significant change” in the state execution protocol.

Powell claims that the basis of his first claim—that the ADOC's lethal injection protocol violates the Eighth Amendment—has undergone a “significant change” as contemplated by McNair, because of the recent change in the anesthetic used to ensure that there is no pain during the remaining stages of the procedure. However, this very argument—that the ADOC's change from sodium thiopental to pentobarbital, is a substantial or significant change in the lethal injection protocol—was rejected by a panel of this Court in Powell(Williams), where we held that “[t]he replacement of sodium thiopental with pentobarbital does not constitute a significant alteration in the ADOC's lethal injection protocol.” 2011 WL 2077796, at *3 (emphasis added). Indeed, as...