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

• Decision Date: 02 February 2016
• Docket Number: No. 16–10277.,16–10277.
• Citation: 812 F.3d 923 (Mem)
• Parties: Brandon Astor JONES, Plaintiff–Appellant, v. COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Georgia Diagnostic and Classification Prison, Other Unknown Employees and Agents, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

812 F.3d 923 (Mem)

Brandon Astor JONES, Plaintiff–Appellant,

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

No. 16–10277.

United States Court of Appeals, Eleventh Circuit.

Feb. 2, 2016.

Gerald Wesley King, Jr., Susan Jill Benton, Federal Defender Program, Inc., Atlanta, GA, Joshua T. Buchman, Rory K. Little, McDermott Will & Emery, LLP, Chicago, IL, for Plaintiff–Appellant.

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

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

BY THE COURT:

A petition for hearing en banc having been filed, a member of this Court in active service having requested a poll on whether this case should be heard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a hearing en banc, IT IS ORDERED that the Petition for Hearing En Banc is DENIED.

MARCUS, Circuit Judge, joined by ED CARNES, Chief Circuit Judge, and TJOFLAT, HULL, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges, concurring in the denial of initial hearing en banc.

We concur in the denial of initial hearing en banc for the reasons stated in the panel order denying Jones's motion for stay. We attach a copy of the panel order hereto. We add these additional thoughts.

The sole issue presented in Jones's petition for initial hearing en banc is whether Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1260 (11th Cir.2014), incorrectly decided that "[n]either the Fifth, Fourteenth, or First Amendments afford [a prisoner] the broad right to know where, how, and by whom the lethal injection drugs will be manufactured, as well as the qualifications of the person or persons who will manufacture the drugs, and who will place the catheters." Id. at 1267 (quotations omitted). While Jones's complaint in the district court alleged an Eighth Amendment challenge to Georgia's method of execution as well as a separate due process challenge to Georgia's Lethal Injection Secrecy Act, O.C.G.A. § 42–5–36, he has not appealed from the district court's dismissal of the Eighth Amendment claim. Thus, Jones has chosen to raise only a free-standing due process claim for discovery, untethered to any other claim currently in litigation.

To ignore Jones's deliberate framing of his appeal runs afoul of the general rule that "[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief." Greenlaw v. United States, 554 U.S. 237, 243–44, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) (quotation omitted). In our system, "we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present." Id. at 243, 128 S.Ct. 2559. Jones has not raised an Eighth Amendment claim on appeal, so we would not raise one for him. And because the Supreme Court has held that there is no due process right to "discover grievances, and to litigate effectively once in court," see Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), his freestanding due process challenge to Georgia's secrecy statute is unmeritorious.

But even if we were empowered to revive Jones's Eighth Amendment method-of-execution challenge and were inclined to do so, it would not get Jones very far. What Jones is seeking is a newly created federal due process right to pre-litigation discovery, ultimately in the hopes of challenging Georgia's lethal injection protocol in federal court. But Federal Rule of Civil Procedure 8 required that Jones allege "enough facts to state a claim to relief that is plausible on its face" before he was entitled to discovery on his Eighth Amendment claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Nobody—including Jones—suggests that Jones adequately pled an Eighth Amendment claim in his complaint. By insisting that he has a right to discovery in the absence of presenting a well-pleaded complaint, Jones travels on the novel idea that the law will (or should) allow discovery first, and only then require him to meet the standards prescribed by the Supreme Court in Baze v. Rees, 553 U.S. 35, 50, 52, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion), and Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015). But the High Court has unambiguously required a plaintiff mounting a "successful [ ] challenge [to] a method of execution" to plead—and if he seeks a stay to present some proof—that (1) "the State's lethal injection protocol creates a demonstrated risk of severe pain," and (2) there is an alternative that is "feasible, readily implemented, and in fact significantly reduces a substantial risk of serious pain." Glossip, 135 S.Ct. at 2737 (alteration adopted and quotation omitted). And it is undeniable that Jones's complaint ignores the second requirement, alleging only at the highest order of abstraction that Georgia could "obtain their drugs from a different source."

Moreover, even if we were to assume that Wellons was wrongly decided and that Jones has some abstract and inchoate due process right to discover the identity of the source of the drugs and the name of the executioner so that he may challenge Georgia's execution protocol, we fail to see how Jones would have standing to challenge the Georgia secrecy statute. The Georgia secrecy statute only protects the identity of Georgia's drug source and the name of the executioners. See O.C.G.A. § 42–5–36(d). It does not deprive Jones of the ability to locate an alternative source. The relief he seeks—to overrule Wellons and strike down Georgia's statute—would not, as we see it, enable him to plead a known and available alternative source of pentobarbital.

To the extent our dissenting colleagues suggest that Wellons did not perform the due process analysis required by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), it is worth noting that Jones has never so much as mentioned Mathews in any argument he's presented to this Court or suggested to us how the kind of balancing Mathews calls for would apply here. Moreover, as the Eighth Circuit observed in Zink v. Lombardi, 783 F.3d 1089 (8th Cir.2015) :

[T]he prisoners seek to discover information about the State's lethal-injection protocol in order to determine whether the protocol violates the Eighth Amendment. The prisoners, however, have not pleaded a deprivation of rights under the Eighth Amendment. This is not a case like Mathews, therefore, where there was an undisputed deprivation of an interest protected by the Due Process Clause, and the question was what process is due before the State may accomplish the deprivation. Rather, the prisoners here ... claim a freestanding right to detailed disclosure about Missouri's execution protocol. A prisoner's "assertion of necessity—that [the State] must disclose its protocol so he can challenge its conformity with the Eighth Amendment—does not substitute for the identification of a cognizable liberty interest."

Id. at 1109 (citation omitted) (quoting Sepulvado v. Jindal, 729 F.3d 413, 419 (5th Cir.2013) ). While the Eighth Amendment surely protects Jones from the deliberate infliction of unnecessary pain during his execution, Jones has failed to allege a plausible claim that Georgia's protocol threatens that interest. Having failed to identify any liberty interest placed in jeopardy by Georgia, the due process balancing required by Mathews offers him little help today.

Finally, we repeat what the panel said about the equities: we ought to be particularly reluctant to interfere in Georgia's enforcement of its lethal injection protocol since its current protocol—using compounded pentobarbital provided by an undisclosed source—has actually been used at least seven times in the last year, without incident. See Terrell v. Bryson, 807 F.3d 1276, 1279 (11th Cir.2015) (Marcus, J., concurring). Moreover, when Georgia suspected there was a problem with its two batches of "cloudy" drugs last spring, it postponed the scheduled executions until it could look into the matter. Id. There has been no claim that Georgia has encountered cloudy drugs since, nor that it has ever used contaminated drugs in an execution. Georgia also complied with the Open Records Act in providing Jones with its analysis, the drug logs, and its testing results.

Jones has done nothing to suggest that he has diligently prosecuted any claim challenging Georgia's secrecy law. He waited until almost three years after the codification of O.C.G.A. § 42–5–36 and over nine months after Georgia publicly disclosed its discovery of the "cloudy" pentobarbital before commencing this 42 U.S.C. § 1983 suit in federal district court at the end of December 2015.

On this record, we are hard pressed to see how this case is exceptionally important, important enough to take the extraordinary step of initial en banc review at this late hour. Every death case is important, and deserves our careful scrutiny. But even if we were to grant him the relief he seeks—declaring the Georgia secrecy statute unconstitutional—we do not see how Jones would benefit. He would have us strike down Georgia's secrecy law, overturn Wellons, and require the district court to allow discovery about Georgia's source of pentobarbital, all in the hope that learning the identity of the manufacturer will somehow provide a springboard to establish a potential, if currently unidentifiable, infirmity in Georgia's execution protocol. That asks us to do too much.

This Court properly denied en banc review.

ATTACHMENT

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16–10277

D.C. Docket No. 1:15–cv–04445–CAP

BRANDON ASTOR...