Mann v. Palmer
| Decision Date | 09 April 2013 |
| Docket Number | No. 13–11349–P.,13–11349–P. |
| Citation | 713 F.3d 1306 |
| Parties | Larry Eugene MANN, Plaintiff–Appellant, v. John PALMER, in his official capacity as the Warden of Florida State Prison, Secretary, Florida Department of Corrections, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Maria E. DeLiberato, Marie–Louise Samuels Parmer, Capital Collateral RegionalCounsel, Tampa, FL, for Plaintiff–Appellant.
Carol Marie Dittmar, Katherine Vickers Blanco, Atty. Gen.'s Office, Tampa, FL, for Defendants–Appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before DUBINA, Chief Judge, and PRYOR and MARTIN, Circuit Judges.
Larry Eugene Mann kidnapped and murdered a ten-year-old girl in 1980, and a Florida trial court convicted and sentenced him to death. After appellate and collateral review, the Florida courts again sentenced Mann to death in 1983 and 1990. On March 1, 2013, the Governor signed a death warrant for Mann and scheduled his execution for April 10, 2013, at 6:00 p.m. Mann then filed in the district court a civil action to challenge the method of execution in Florida as cruel and unusual under the Eighth Amendment, 42 U.S.C. § 1983, even though Mann had filed a nearly identical complaint in 2010, which the district court had dismissed in 2011. On April 1, 2013, the district court dismissed Mann's new complaint for failure to state a claim. SeeFed.R.Civ.P. 12(b)(6). Mann now has moved this Court for a stay of execution and expedited consideration of his appeal of the dismissal of his complaint for failure to state a claim. We DENY the motion to expedite Mann's appeal, and we DENY his motion for a stay of execution.
On December 10, 2010, Mann filed a complaint against Steven Singer, in his official capacity as the Warden of Florida State Prisons; Walter McNeil, in his official capacity as the Secretary of the Florida Department of Corrections; and Does 1–50, executioners for the State of Florida. The complaint raised several challenges, under the prohibition of cruel and unusual punishment in the Eighth Amendment, to the lethal injection protocol approved in 2007 by the State of Florida. See42 U.S.C. § 1983. The complaint alleged that the use of sodium pentothal, also known as sodium thiopental, as the first drug in the three-drug protocol created a substantial risk of serious harm because the executioners lacked adequate training and experience to store, mix, prepare, and administer the drug; and the State of Florida lacked a safe, current, or adequate supply of sodium pentothal. The complaint also alleged that the use of pancuronium bromide as the second drug in the three-drug protocol substantially increased the risk that Mann would be conscious during an execution and unable to convey the torturous pain and suffering he experienced and served no legitimate purpose in the execution procedure. And the complaint alleged that the use of potassium chloride as the final drug in the three-drug protocol causes torturous pain to an inmate if the inmate is not adequately anesthetized during its administration, and the protocol lacked adequate safeguards for its administration. The complaint also alleged that the protocol did not adequately define the person to carry out a central venous line placement if peripheral venow access is not possible; that the protocol did not adequately provide for a trained and qualified individual to determine whether the inmate is in the surgical plane of anesthesia before the second and third drugs are administered; that the State has consistently failed to employ competent, trained personnel to perform executions; that the protocol did not allow for an individualized assessment of Mann's specific medical conditions, including his diabetes and the scar tissue on his forearms, which could compromise venous access; and that the protocol included no safeguards in the event of a last minute stay of execution after the lethal injection process has begun.
On January 14, 2011, the district court sua sponte dismissed Mann's complaint as without merit after the decision of the Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). Mann did not appeal the dismissal of his complaint.
Florida has since amended its protocol to substitute two new drugs for the drugs listed in the protocol approved in 2007. On June 8, 2011, Florida adopted a protocol that substituted pentobarbital for sodium pentothal as the first drug in the protocol. And on September 4, 2012, Florida adopted a protocol that substituted vecuronium bromide for pancuronium bromide as the second drug in the protocol.
On November 29, 2012, Mann began filing grievances with prison officials about the changes to the drugs. On December 3, 2012, the warden denied Mann's emergency grievance and instructed him to file an informal grievance first and then a formal grievance. Mann then filed his informal grievance on December 17, 2012, and the warden denied the grievance on December 26, 2012. Mann filed a formal grievance on December 30, 2012, and the warden denied the grievance on January 22, 2013. Mann then filed a grievance with the Secretary of the Florida Department of Corrections on January 27, 2013, and the Department denied that grievance on February 8, 2013.
On February 18, 2013, Mann moved to intervene in a pending action against the warden and the Department that challenged the protocol adopted in 2011 and to amend the complaint in that action to challenge too the protocol adopted in 2012. On March 1, 2013, the Governor signed a death warrant for Mann and scheduled his execution for April 10, 2013, at 6:00 p.m. And on March 7, 2013, the district court denied Mann's motion to intervene in the pending action.
On March 8, 2013, Mann filed a complaint against John Palmer, in his official capacity as the Warden of the Florida State Prison, and Michael D. Crews, in his official capacity as the Secretary of the Florida Department of Corrections. The complaint is nearly identical to Mann's complaint filed in 2010. The only differences between the complaint Mann filed in 2013 and his earlier complaint are new allegations that pentobarbital is not interchangeable with sodium pentothal; that the protocol fails to specify the temperature at which pentobarbital must be stored; and that, because of the decision of the manufacturer to restrict the sale of pentobarbital for use in capital punishment, Florida must have expired, compounded, or illegally-obtained pentobarbital that would not be safe to use in the lethal injection protocol. Mann also substituted the word “vecuronium” for the word “pancuronium” in his allegations about pancuronium bromide from his earlier complaint, but Mann failed to make any specific allegations about why vecuronium bromide is materially different from pancuronium bromide.
The district court ordered Mann to file a memorandum that addressed whether his new complaint was barred by res judicata as a result of the dismissal of his earlier complaint. Mann argued that his claims were not barred because the parties were not identical, as he had not named Does 1–50, executioners for the State of Florida, in the action filed in 2013. Mann also argued that the complaint filed in 2013 presented a different cause of action because of the two changes to the drugs listed in the three-drug protocol. Finally, Mann argued that the dismissal of the complaint filed in 2010 relied on Baze, and the legal landscape had been “substantially altered” since Baze because of the availability of the one-drug protocol as a feasible alternative to the three-drug protocol.
The district court ordered the defendants to file a response to Mann's new complaint. The defendants moved to dismiss or grant a summary judgment in their favor on the grounds that Mann's new complaint was barred by res judicata, the statute of limitations, the failure to exhaust administrative remedies, and the failure to state a claim upon which relief could be granted.
On March 17, 2013, Mann filed a motion to amend his complaint to allege a new claim that he had been arbitrarily denied access to updated clemency proceedings by the Governor before he issued Mann's death warrant, and Mann alleged that his due process rights were violated by a state law that prohibits capital collateral regional counsel from representing him in a civil action that challenges anything other than his method of execution. The defendants opposed the motion on the grounds that Mann had been dilatory and his new claims were futile. Specifically, the defendants argued that Mann knew updated clemency proceedings could commence after this Court denied a certificate of appealability for the denial of Mann's petition for a writ of habeas corpus on August 15, 2011, and that he was fully aware of all of the information and allegations in his motion to amend when he filed the action. The defendants also argued that Mann was previously given a clemency proceeding, which satisfied his right to due process. And the defendants argued that state law provided for the appointment of independent clemency counsel and Mann had not sought appointment of that counsel, so the limitations on capital collateral regional counsel did not establish the denial of due process.
On April 1, 2013, the district court granted the defendants' motion to dismiss and denied Mann's motion to amend his complaint. The district court rejected Mann's challenge to the three-drug protocol on the grounds identified in two recent unpublished decisions of our Court that rejected similar challenges to the three-drug protocol in Florida. And the district court denied Mann's motion to amend because it would be futile. The district court explained that Mann had received a full clemency proceeding years ago at which he was represented by counsel and that due process did not require the Governor to grant him a new clemency proceeding.
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