Gissendaner v. Comm'r, Ga. Dep't of Corr.

• Decision Date: 29 September 2015
• Docket Number: No. 15–14335,15–14335
• Citation: 803 F.3d 565
• Parties: Kelly Renee GISSENDANER, Plaintiff–Appellant, v. COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Georgia Diagnostic Prison, Other Unknown Employees and Agents, Georgia Department of Corrections, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

803 F.3d 565

Kelly Renee GISSENDANER, Plaintiff–Appellant

v.COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Georgia Diagnostic Prison, Other Unknown Employees and Agents, Georgia Department of Corrections, Defendants–Appellees.

No. 15–14335

United States Court of Appeals, Eleventh Circuit.

Sept. 29, 2015.

Lindsay Bennett, Federal Defender Program, Inc., Sacramento, CA, Susan C. Casey, Michael Kennedy McIntyre & Associates, Atlanta, GA, Gerald Wesley King, Jr., Federal Defender Program, Inc., Atlanta, GA, for Plaintiff–Appellant.

Sabrina Graham, Beth Attaway Burton, Attorney General's Office, Atlanta, GA, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:15–cv–00689–TWT.

Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

Opinion

PER CURIAM:

Kelly Gissendaner filed in the United States District Court a 42 U.S.C. § 1983 complaint seeking to prevent the State of Georgia from executing her for the murder of Douglas Gissendaner in 1997. She claims that the execution, which is scheduled for later today, will violate the Cruel and Unusual Punishment Clause of the Eighth Amendment for a number of reasons. Earlier this year, we affirmed the dismissal of a similar complaint by her. Gissendaner v. Comm'r, 779 F.3d 1275, 1284 (11th Cir.2015).

Gissendaner's most recent complaint, filed on March 9, 2015, does contain some variations to her continuing attack on Georgia's lethal injection protocol. Those variations and her claim were addressed by the district court in an order and opinion filed on August 10, 2015. We agree with the reasoning of that order and opinion and attach a copy of it as part of this opinion. See Appendix A. We also agree with the district court's denial of Gissendaner's motion for reconsideration and motion for a temporary restraining order and a stay of execution.

We add a few comments of our own to what the district court wrote. First, Gissendaner's attorneys ignored the requirements of Federal Rule of Civil Procedure 8. Instead of filing a complaint that contains “a short and plain statement of the claim showing that the pleader is entitled to relief,” as Rule 8(b)(2) requires, they filed a document styled “Complaint and Memorandum of Law.” The rules do not permit combining a memorandum of law with a complaint. The result of their ignoring Rule 8 is a document that is anything but a short and plain statement of a claim. It quotes Camus, numerous newspaper and magazine articles as well as internet postings, and resorts to hyperbolic language (e.g., “There is a name for such a proceeding: a star chamber.”). The district court would have been well within its discretion to strike the document.

Second, Gissendaner's position that her Eighth Amendment rights have been or will be violated cannot be squared with Glossip v. Gross, –––U.S. ––––, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015). As the district court explained:

The Supreme Court has specifically “outlined what a prisoner must establish to succeed on an Eighth Amendment method-of-execution claim.” A plaintiff “cannot successfully challenge a method of execution unless [she] establish[es] 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.” Thus, “[t]o 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.” In addition, the plaintiff “must identify an alternative that is feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”

Appendix A at 18–19 (citations to Glossip omitted).

The Supreme Court has held that “some risk of pain is inherent in any method of execution,” and that “the Constitution does not require the avoidance of all risk of pain.” Glossip, 135 S.Ct. at 2733. What the Constitution requires is avoidance of “a substantial risk of serious harm, an objectively intolerable risk of harm.” Id. at 2737 (quotation marks omitted). An “objectively intolerable” risk, in this context, means that “prisoners must identify an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Id. (quotation marks omitted). The allegations Gissendaner has pleaded concerning the events of March 2, 2015, which is the basis of her complaint, do not evidence, much less establish, that she faces “a substantial risk of serious harm.” To the contrary, the allegations that those charged with carrying out her previously scheduled execution stopped it out of a concern that there might be a problem with the lethal injection drug, evidences exactly the opposite. The allegations show that the defendants were cautious and took steps to avoid a substantial risk of serious harm.

To put it in Iqbal and Twombly terms, Gissendaner has failed to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Although it is not a “probability requirement,” Iqbal and Twombly's plausibility standard nonetheless “asks for more than a sheer possibility” that the plaintiff's allegations are true. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “[A] plaintiff cannot rely on ‘naked assertions devoid of further factual enhancement.’ ” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir.2013) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 ).

Third, the document Gissendaner filed as a complaint does not allege the other element of an Eighth Amendment execution protocol claim, which is “an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Glossip, 135 S.Ct. at 2733 (quotation marks omitted). The document does not even mention an alternative method or protocol or acknowledge the requirement that there be one.

We respectfully disagree with our dissenting colleague's view that the readily available alternative requirement of Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) and Glossip does not apply to Gissendaner's claim on the ground that this is an as-applied challenge instead of a facial challenge. To begin with, there is no real difference between the nature of the challenges in Baze and Glossip and the challenge here. The plaintiffs in Baze, for example, did not contend that lethal injection in general or the three-drug protocol used by Kentucky in particular was facially unconstitutional. As the Supreme Court explained in that case:

Petitioners do not claim that lethal injection or the proper administration of the particular protocol adopted by Kentucky by themselves constitute the cruel or wanton infliction of pain. Quite the contrary, they concede that “if performed properly,” an execution carried out under Kentucky's procedures would be “humane and constitutional.” Brief for Petitioners 31. That is because, as counsel for petitioners admitted at oral argument, proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium

and potassium chloride. See Tr. of Oral Arg. 5; App. 493–494 (testimony of petitioners' expert that, if sodium thiopental is “properly administered” under the protocol, “[i]n virtually every case, then that would be a humane death”).

Instead, petitioners claim that there is a significant risk that the procedures will not be properly followed—in particular, that the sodium thiopental

will not be properly administered to achieve its intended effect—resulting in severe pain when the other chemicals are administered.

Baze v. Rees, 553 U.S. at 49, 128 S.Ct. at 1530 (emphasis added).

Similarly, in the present case, Gissendaner does not claim that when the proper procedures for obtaining, storing, and using pentobarbital are followed, it will be ineffective and cause cruel or wanton infliction of pain. Instead, she challenges the way that Georgia obtains, stores, and uses pentobarbital, which is similar to the challenges that Baze mounted against Kentucky's protocol. In that case the allegations were that there was a risk of improper administration of the drug because of the difficulty of compounding the solution, the possibility of an improper placement of catheters, and the possibility of an improper rate of injection. Baze, 553 U.S. at 54, 128 S.Ct. at 1533. If the challenge in this case to Georgia's protocol is an as applied one, so was the one in Baze, and it was in Baze that the Supreme Court announced the readily available alternative requirement. What Gissendaner is ultimately seeking is to force Georgia to change its procedures for obtaining, storing, and using pentobarbital which will, as a practical matter, force it to change its lethal injection protocols, and that is the same type of relief that the plaintiffs sought in Baze and Glossip. Not only that, but there is no logical reason why there should be a readily available alternative requirement in facial challenges to lethal injection protocols but not to as-applied challenges to them.¹

Finally, it is noteworthy that the lethal injection drug that Georgia uses in its single-drug protocol is pentobarbital, which, the Supreme Court has recognized, opponents to capital punishment have made largely unavailable through open channels. Glossip, 135 S.Ct. at 2733. To require, as Gissendaner is seeking, that Georgia open up about its source of pentobarbital would result in the drug becoming completely unavailable for use in executions, even though its use does not violate the Eighth Amendment. See id.

The judgment dismissing the complaint and all attendant orders, including the denial of the motion for a restraining...