Valle v. Singer

• Decision Date: 07 September 2011
• Docket Number: No. 11–13891.,11–13891.
• Citation: 23 Fla. L. Weekly Fed. C 359,655 F.3d 1223
• Parties: Manuel VALLE, Plaintiff–Appellant,v.Steven SINGER, in his official capacity as the Warden of Florida State Prison, Timothy Cannon, in his official capacity as the Execution Team Leader, Edwin Buss, in his official capacity as the Secretary, Florida Department of Corrections, Unknown Executioners, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

655 F.3d 1223

23 Fla. L. Weekly Fed. C 359

Manuel VALLE, Plaintiff–Appellant,

v.Steven SINGER, in his official capacity as the Warden of Florida State Prison, Timothy Cannon, in his official capacity as the Execution Team Leader, Edwin Buss, in his official capacity as the Secretary, Florida Department of Corrections, Unknown Executioners, Defendants–Appellees.

No. 11–13891.

United States Court of Appeals, Eleventh Circuit.

Sept. 7, 2011.

Paul Edward Kalil, Suzanne Myers Keffer, Capital Collateral Regional Counsel–South, Fort Lauderdale, FL, for Plaintiff–Appellant.Sandra Sue Jaggard, Office of the Attorney General, Miami, FL, for Defendants–Appellees.Appeal from the United States District Court for the Middle District of Florida.Before CARNES, HULL and WILSON, Circuit Judges.PER CURIAM:

Manuel Valle is a death row prisoner who is scheduled to be executed by the State of Florida. The State originally scheduled his execution by lethal injection for August 2, 2011. The Florida Supreme Court granted a stay to allow a Florida circuit court to determine whether the State's use of an altered lethal injection protocol—one that substituted pentobarbital for sodium thiopental in its three-drug execution cocktail—violates the Eighth Amendment. Following an evidentiary hearing, the circuit court denied relief. The Florida Supreme Court affirmed, lifting its previously issued stay. Valle's execution was rescheduled for September 6, 2011; this Court's temporary stay expires September 8, 2011 at 7:00 p.m.

Valle also brought suit in federal district court. He filed a complaint under 42 U.S.C. § 1983 and a motion for a temporary restraining order (“TRO”) and preliminary injunction and to stay his execution. On August 9, the district court denied his motion, concluding, inter alia, that Valle failed to demonstrate a substantial likelihood of success on the merits of his Eighth Amendment claim—a prerequisite for injunctive relief.¹ Valle appeals that decision and also asks this Court to enter a stay of execution so that he can obtain a merits ruling on his complaint. He concedes that this Court's recent decisions rejected similar challenges. Valle seeks to distinguish those cases—allowing Georgia and Alabama to proceed with executions using pentobarbital instead of sodium thiopental—because he alleges that Florida, unlike Georgia and Alabama, has a history of problems with properly effecting executions.²

“A stay of execution is equitable relief which this Court may grant only if the moving party shows that: (1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest.” DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir.2011) (internal quotation marks omitted). “We review the district court's denial of [defendant's] motions for a TRO and stay of execution for abuse of discretion.” Id. at 1324 n. 2.

“To state an Eighth Amendment claim, [the defendant] must demonstrate that (1) the State is being deliberately indifferent (2) to a condition that poses a substantial risk of serious harm to him. In the lethal injection context, this standard requires an inmate to show an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.” Id. at 1325 (internal quotations marks and citations omitted).

We conclude that Valle has not demonstrated that he has a substantial likelihood of success on the merits of his Eighth Amendment claim for the reasons set out in Part C.1 of the district court's thorough and well-reasoned discussion of the lethal injection issue. We adopt that part of the district court's opinion as our own. For the convenience of the reader, we reproduce that part of the opinion, as well as some introductory parts of it, as an appendix to this one.³

Because Valle has failed to show a substantial likelihood of success on the merits, we need not address the other three requirements for issuance of a stay of execution. See DeYoung, 646 F.3d at 1328 (“DeYoung has not demonstrated a substantial likelihood of success on the merits of his claims. Therefore, the Court denies DeYoung's motion for a stay of execution in this Court.”); Parker v. State Bd. of Pardons and Paroles, 275 F.3d 1032, 1035 (11th Cir.2001) (holding that death row inmate who failed to establish substantial likelihood of success on merits of his clemency claims was not entitled to temporary restraining order, preliminary injunction, or stay of execution).

For the foregoing reasons, we conclude that Valle does not satisfy the first requirement for the issuance of a stay of execution, and thus we deny Valle's motion.⁴

MOTION FOR STAY OF EXECUTION IS DENIED; DISTRICT COURT'S ORDER IS AFFIRMED.

APPENDIX

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MANUEL VALLE, Plaintiff,

v.

STEVEN SINGER, etc.; et al., Defendants.

Case No. 3:11–cv–700–J–34TEM.

ORDER

A. Introduction

Plaintiff Manuel Valle, a prisoner sentenced to death by the State of Florida, was scheduled to be executed by lethal injection on Tuesday, August 2, 2011, at 6:00 p.m. On July 18, 2011, Valle, represented by counsel, filed a Complaint (Doc. # 1) and Memorandum of Law and Argument in Support of the Complaint (Memorandum) (Doc. # 2) pursuant to 42 U.S.C. § 1983. In the Complaint and Memorandum, Valle challenges the State of Florida's lethal injection procedures and asserts that the Florida Department of Corrections' 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 also violates his rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. Additionally, he alleges that the Florida Department of Corrections' current policies and procedures and its history of failing to follow its own written execution procedures, combined with the recent substitution of pentobarbital, will unnecessarily cause a risk of the infliction of pain and suffering and will create a substantial risk of serious harm to Valle at his upcoming execution. As relief, Valle seeks declaratory and injunctive relief aimed at stopping the State of Florida from executing him using its lethal injection protocol, as well as a stay of execution to allow his § 1983 action to be fully and fairly litigated without an imminent execution date looming.

* * *

B. Background

Following lengthy state trial court proceedings which included two separate trials and three sentencing proceedings, Valle was sentenced to death for the 1978 murder of Officer Louis Pena of the Coral Gables Police Department. ³ Valle appealed his sentence to the state supreme court, which denied his direct appeal on May 2, 1991. Valle v. State, 581 So.2d 40 (Fla.1991). Valle then petitioned the United States Supreme Court for a writ of certiorari, which was denied on December 2, 1991. Valle v. Florida, 502 U.S. 986, 112 S.Ct. 597, 116 L.Ed.2d 621 (1991). Thus, Valle's conviction and sentence became final on December 2, 1991.

In 2000, the Florida Legislature established lethal injection as the method of execution in the State of Florida. Lightbourne v. McCollum, 969 So.2d 326, 341–42 (Fla.2007), cert. denied, 553 U.S. 1059, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008). Although the applicable state statute provides for the method of execution, it does not set forth the specific procedures or drugs to be used. Id. at 342. Instead, the legislature delegated the responsibility for establishing appropriate procedures to the Florida Department of Corrections (FDOC). Id. Until recently, lethal injection in the State of Florida was accomplished by a three-drug protocol utilizing sodium thiopental to render the condemned person unconscious, followed by the administration of pancuronium bromide, a neuromuscular blocking agent, and finally a dose of potassium chloride. Id. at 345. According to the Complaint, the FDOC, on June 9, 2011, released a new lethal injection procedure in which it publically advised, for the first time, that the State intended to replace sodium thiopental with pentobarbital. See Complaint at 22–23, paragraphs 65–67. Additionally, on June 30, 2011, the State announced that Valle's execution was scheduled for August 2, 2011. See Motion to Dismiss at 2.

In this action, pursuant to 42 U.S.C. § 1983, Valle asserts that Florida's intention to execute him using pentobarbital in the three-drug lethal injection sequence, instead of sodium thiopental, violates his Eighth Amendment right to be free from cruel and unusual punishment. He asserts that, as a result of this substitution, he may be conscious after being injected with pentobarbital, and thus subjected to significant pain during the administration of the final two drugs. In support of his claims, Valle points to a report and an affidavit provided by Dr. David B. Waisel, M.D. See P.Ex. B, Waisel's Expert Report and Affidavit. In his report, Dr. Waisel expresses concern regarding the lack of clinical history related to the use of pentobarbital for anesthesia. See generally Id. Additionally, in his affidavit, Dr. Waisel opines that, based on his reviews of descriptions of the June 23, 2011 execution of Roy Willard Blankenship, pentobarbital may inadequately anesthetize the inmate and subject him to a substantial risk of serious harm and extreme, torturous and needless pain and suffering. Valle also relies on a position paper released by Lundbeck, Inc., the manufacturer of pentobarbital, which he contends reflects the manufacturer's judgment that the drug is “untested and unsafe for use in judicial lethal injections,” has not been approved by the Food and Drug...