Wellons v. Comm'r

• Citation: 754 F.3d 1260
• Decision Date: 17 June 2014
• Docket Number: No. 14–12663–P.,14–12663–P.
• Parties: Marcus A. WELLONS, Plaintiff–Appellant, v. COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

754 F.3d 1260

Marcus A. WELLONS, Plaintiff–Appellant,
v.
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, et al., Defendants–Appellees.

No. 14–12663–P.

United States Court of Appeals,
Eleventh Circuit.

June 17, 2014.

[754 F.3d 1261]

Gerald Wesley King, Jr., Jeffrey Lyn Ertel, Federal Defender Program, Inc., Mary Elizabeth Wells, Law Office of M.E. Wells, Atlanta, GA, for Plaintiff–Appellant.

Sabrina Graham, Beth Attaway Burton, Mitchell Philip Watkins, Georgia Department of Law, Atlanta, GA, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:14–cv–01827–WBH.
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM.

Petitioner Marcus A. Wellons has appealed today from the district court's denial of his 42 U.S.C. § 1983 action seeking a temporary restraining order, a stay of his execution, a preliminary injunction, and a request for declaratory judgment. He is scheduled to be executed by lethal injection today at 7:00 p.m. Upon thorough consideration of the parties' arguments and prevailing law, we find that Wellons has not established a substantial likelihood of success on the merits of his Eighth Amendment or other constitutional claims.

I. BACKGROUND

Wellons was convicted of the malice murder and rape of fifteen-year-old India Roberts on June 6, 1993. The Supreme Court denied his petition for writ of certiorari on direct appeal. Wellons v. Georgia, 519 U.S. 830, 117 S.Ct. 97, 136 L.Ed.2d 52 (1996). Following denial of state habeas relief, Wellons filed a federal petition for

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writ of habeas corpus in the Northern District of Georgia, which was also denied. This court affirmed the denial of habeas relief, Wellons v. Hall, 554 F.3d 923 (11th Cir.2006), but the Supreme Court granted his petition and remanded for further consideration, Wellons v. Hall, 558 U.S. 220, 130 S.Ct. 727, 175 L.Ed.2d 684 (2010) (per curiam). After remanding Wellons's case to the district court for further proceedings consistent with the Supreme Court's opinion, we affirmed the district court's denial of Wellons's habeas petition. Wellons v. Warden, 695 F.3d 1202 (2012). The Supreme Court denied Wellons's petition for writ of certiorari. Wellons v. Humphrey, ––– U.S. ––––, 134 S.Ct. 177, 187 L.Ed.2d 121 (2013).

Defendants have scheduled Wellons for execution on June 17, 2014. Following denial of his state appeals, Wellons filed a Section 1983 complaint seeking a temporary restraining order and stay of execution before the district court for the Northern District of Georgia. Wellons also sought a declaratory judgment that Defendants' refusal to disclose information concerning the provenance of their lethal injection drugs and the qualification of their execution team violates his rights pursuant to the First, Fifth, Eighth and Fourteenth Amendments. Wellons argues that Defendants have refused to disclose how they plan to execute him, relying upon Georgia's recent legislation that classifies all “identifying information” about a “person or entity who participates in or administers the execution of a death sentence ... [or] that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment” used in an execution as a “confidential state secret” not subject to disclosure. O.C.G.A. § 42–5–36(d) (effective July 1, 2013) (the “Lethal Injection Secrecy Act”).

Wellons asserts that the only information Defendants have divulged concerning his execution is a copy of the lethal injection procedure that they adopted on July 17, 2012, which outlines a one-drug injection protocol of “pentobarbital.” Because Defendants have not had any FDA-approved pentobarbital in their possession since March of 2013, but have indicated that they obtained pentobarbital for this execution, Wellons argues that they may use a substance that purports to be pentobarbital, but that has been manufactured from unknown ingredients and in unknown circumstances by a compounding pharmacy. Further, Wellons explains that the Supreme Court of Georgia has empowered Defendants to change their protocol at will and with no supervision or meaningful notice to the prisoner or public. See Hill v. Owens, 292 Ga. 380, 738 S.E.2d 56 (2013). Wellons presents several arguments for why his lack of knowledge about the drug that will be used at his execution violates his constitutional rights. First, he details the risks of using a compounded pentobarbital from an undisclosed source, arguing that it poses a substantial threat of undue pain and suffering. Second, Wellons argues that Oklahoma's recent botched execution of Clayton Lockett highlights the risks of Defendants' refusal to disclose the qualifications of the personnel who will administer Wellons's execution.

The district court held a hearing on June 16, 2014 on Wellons's claims regarding the provenance of the drugs to be used in his execution and the expertise of the personnel who will carry out the execution. The district court concluded that Wellons was not entitled to the declaratory or injunctive relief that he sought, and granted the Defendants' motion to dismiss Wellons's Section 1983 claims. Specifically, the district court found that Wellons's assertion that there may be a problem with the pentobarbital or that the person placing the intravenous lines into him may not be qualified to perform the task was mere

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speculation and “cannot substitute for evidence that the use of the drug is sure or very likely to cause serious illness and needless suffering.” Brewer v. Landrigan, ––– U.S. ––––, 131 S.Ct. 445, 178 L.Ed.2d 346 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)); see Mann v. Palmer, 713 F.3d 1306, 1315 (11th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 1752, 185 L.Ed.2d 806 (2013).

II. STANDARD OF REVIEW

A temporary restraining order or a stay of execution is appropriate only if the movant demonstrates: “(1) a substantial likelihood of success on the merits; (2) that the preliminary injunction is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm the preliminary injunction would cause the other litigant; and (4) that the preliminary injunction would not be averse to the public interest.” Chavez v. Florida SP Warden, 742 F.3d 1267, 1271 (11th Cir.), cert. denied ––– U.S. ––––, 134 S.Ct. 1156, ––– L.Ed.2d –––– (2014).

We review a district court's denial of a stay of execution for abuse of discretion. Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir.2011) (per curiam); Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir.2011) (per curiam).

III. DISCUSSIONA. Statute of Limitations

As a preliminary matter, we note that the district court did not address whether Wellons's § 1983 claims were time barred. Claims brought pursuant to 42 U.S.C. § 1983 are subject to the statute of limitations period governing personal injury actions in the state where the action is brought. Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir.2008). In Georgia, the statute of limitations for tort actions is two years. DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir.2011). This court has explained that a petitioner'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 changes execution protocol.” McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir.2008). In Arthur v. Thomas, we held that whether a significant change has occurred in a state's method of execution is a fact dependent inquiry. 674 F.3d 1257, 1260 (11th Cir.2012) (remanding for a hearing to fully consider whether the change in Alabama's execution protocol constituted a “significant change” which would reset petitioner's statute of limitations).

Wellons argues that the Eighth Amendment entitles him to the information necessary to determine whether Georgia's method of execution is cruel and unusual.¹ Defendants gave Wellons the 2012 Georgia Department of Correction Lethal Injection Protocol in May 2014, and Wellons concedes that Defendants have indicated that they have obtained pentobarbital for his execution. This 2012 protocol sets forth the state's one-drug lethal injection protocol of using five grams of pentobarbital administered by trained medical personnel, including a physician and an IV nurse. However, because Defendants have not had any FDA-approved pentobarbital in their possession since March of 2013, Wellons believes that they will inject him with

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a compounded pentobarbital from an unknown manufacturer. Wellons appears to be arguing that Defendants will not follow their Legal Injection Protocol, or alternatively that changing from pentobarbital to a compound pentobarbital could constitute a “significant change” restarting the statute of limitations. Arthur, 674 F.3d at 1260. However, the Georgia Department of Corrections' anticipated use of an adulterated pentobarbital does not establish a “significant alteration in the method of execution.” See Mann v. Palmer, 713 F.3d at 1314 (11th Cir.2014) (“Because Mann cannot establish that the substitution of pentobarbital constituted a significant alteration to the method of execution in Florida, all of his claims not barred by res judicata are untimely.”). Nor has Wellons alleged facts sufficient to show that Georgia's legal injection procedure has “substantially changed” based on the lethal injection secrecy act adopted by the Georgia legislature in March of 2013, which the Georgia Supreme Court has determined is constitutional. O.C.G.A. § 42–5–36; see Owens v. Hill, No. S14A0092, 2014 Ga. LEXIS 400 (Ga. May 19, 2014).

Therefore, Wellons last became subject to a substantially changed execution protocol in October 2001, when the Georgia Supreme Court declared that execution by electrocution violated the state constitution and directed any further executions to be carried out by lethal injection. ...