Boyd v. Warden, Holman Corr. Facility

• Decision Date: 09 May 2017
• Docket Number: No. 15-14971,15-14971
• Citation: 856 F.3d 853
• Parties: Anthony BOYD, Plaintiff–Appellant, v. WARDEN, HOLMAN CORRECTIONAL FACILITY, Attorney General of Alabama, Jefferson S. Dunn, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

856 F.3d 853

Anthony BOYD, Plaintiff–Appellant,

v.WARDEN, HOLMAN CORRECTIONAL FACILITY, Attorney General of Alabama, Jefferson S. Dunn, Defendants–Appellees.

No. 15-14971

United States Court of Appeals, Eleventh Circuit.

May 9, 2017

John C. La Liberte, Matthew C. Moschella, Jennifer L. Ioli, Sherin & Lodgen, LLP, Boston, MA, for Plaintiff–Appellant.

Thomas R. Govan, Jr., Lauren Ashley Simpson, Andrew Lynn Brasher, James Clayton Crenshaw, Alabama Attorney General's Office, Montgomery, AL, for Defendant–Appellee.

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

MARCUS, Circuit Judge:

It is by now clear in capital cases that a plaintiff seeking to challenge a state's method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state's planned method of execution. Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court's dismissal of his federal civil rights lawsuit challenging the constitutionality of Alabama'slethal injection protocol. Boyd filed this lawsuit pursuant to Section 1983, alleging, among other things, that Alabama's new lethal injection protocol, which substituted midazolam

hydrochloride for pentobarbital as the first of three drugs, violates his Eighth Amendment right to be free from cruel and unusual punishment. Notably, however, he did not allege that execution by a lethal injection protocol generally is unconstitutional. Currently, Alabama law provides inmates sentenced to death with a choice between two methods of execution: lethal injection or electrocution. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, however, Boyd alleged that Alabama should execute him by hanging or firing squad.

The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd's proposed alternative methods of execution—firing squad and hanging—are not authorized methods of execution under Alabama law and, therefore, are neither feasible nor readily implementable by that state. It further held that Boyd's remaining claims challenging Alabama's execution protocol, the execution facilities, and the state's decision to keep certain information about the protocol secret were time-barred by the statute of limitations. Finally, the district court ruled that amending these claims would be futile and dismissed Boyd's complaint.

We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain. The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution. But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain. Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad. We also agree that Boyd's remaining claims were filed well beyond the two-year statute of limitations governing § 1983 claims in Alabama. Accordingly, we affirm.

I.

A.

The facts of the kidnapping and murder that Boyd committed have been laid out by the Alabama Court of Criminal Appeals. See Boyd v. State , 715 So.2d 825, 832 (Ala. Crim. App. 1997). On July 31, 1993, Boyd and three accomplices kidnapped Gregory Huguley, who owed them $200.00 for cocaine they had given him several days earlier. Id. The four men forced Mr. Huguley into a van at gun-point and drove him to a park, making a stop at a gas station to purchase some gasoline in a plastic container. Id. They then made him lie down on a bench; bound his hands, mouth, and feet with duct tape; and then taped him to the bench, ignoring his repeated pleas for mercy and his promises to repay them. Id. One of the men, Shawn Ingram, doused Huguley in gasoline, leaving a two-foot trail of gasoline leading away from the bench where he was bound. Id. Ingram then lit the trail of gasoline that led to Huguley, causing him to catch fire. Id. The four men watched Huguley burn for ten to fifteen minutes, and as he burned, he rolled over a few feet. Id. Huguley died as a result of his injuries. Id.

After trial in Talladega County, Alabama, a state jury convicted Boyd of murder made capital because it occurred during the course of a kidnapping in the first degree, and recommended by a vote of 10-2 that a death sentence be imposed. Id. at 831–32. After conducting a separate sentencing hearing, the trial court followed the jury's recommendation and sentenced Boyd to death by electrocution. Id. at 832. Boyd's conviction and death sentence were affirmed on direct appeal, see id. at 852, aff'd sub nom. Ex parte Boyd , 715 So.2d 852 (Ala. 1998), cert. denied , Boyd v. Alabama , 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998), and his Rule 32 petition for state post-conviction relief was denied, see Boyd v. State , 913 So.2d 1113 (Ala. Crim. App. 2003), cert. denied , No. 1030438 (Ala. May 27, 2005). Boyd then sought federal habeas corpus relief in the United States District Court for the Northern District of Alabama. The district court denied his habeas petition; we affirmed, see Boyd v. Comm'r, Ala. Dep't of Corr. , 697 F.3d 1320 (11th Cir. 2012) ; and the United States Supreme Court denied certiorari review, see Boyd v. Thomas , ––– U.S. ––––, 133 S.Ct. 2857, 186 L.Ed.2d 914 (2013).

B.

When Boyd was sentenced to death in 1995, Alabama executed inmates by electrocution. See McNair v. Allen , 515 F.3d 1168, 1171 (11th Cir. 2008). On July 31, 2002, however, the Alabama legislature changed the state's method of execution to "lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution." Ala. Code § 15-18-82.1(a). The legislature allowed inmates already under a sentence of death at that time a 30-day window to choose electrocution as their method of execution, after which time they would be deemed to have waived the right to request a method other than lethal injection. Id. § 15-18-82.1(b). The method-of-execution statute further provides that "[i]f electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court under the Constitution of Alabama of 1901, or held to be unconstitutional by the United States Supreme Court under the United States Constitution, or if the United States Supreme Court declines to review any judgment holding a method of execution to be unconstitutional under the United States Constitution made by the Alabama Supreme Court or the United States Court of Appeals that has jurisdiction over Alabama, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution." Id. § 15-18-82.1(c). The statute does not prescribe any particular method of lethal injection; the legislature left it to the Alabama Department of Corrections ("ADOC") to devise the policies and procedures governing lethal injection executions, and exempted the ADOC from the Alabama Administrative Procedure Act in exercising that authority. Id. § 15-18-82.1(g).

The ADOC has used a three-drug lethal injection protocol since it began performing executions by lethal injection in 2002. See Brooks v. Warden , 810 F.3d 812, 823 (11th Cir.), cert. denied sub nom. Brooks v. Dunn , –––U.S. ––––, 136 S.Ct. 979, 193 L.Ed.2d 813 (2016). Each drug in a three-drug protocol is intended to serve a specific purpose: the first drug should render the inmate unconscious to "ensure[ ] that the prisoner does not experience any pain associated with the paralysis and cardiac arrest

caused by the second and third drugs"; the second drug is a paralytic agent that "inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration"; and the third drug "interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest

." Baze v. Rees , 553 U.S. 35, 44, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality op.). The third drug in the ADOC protocol has always been potassium chloride, and the second drug has always been a paralytic agent—either pancuronium bromide or rocuronium bromide. Brooks , 810 F.3d at 823. However, the ADOC has changed the first drug in the protocol twice: From 2002 until April 2011, it used sodium thiopental as the first drug in the three-drug sequence; from April 2011 until September 10, 2014, it used pentobarbital as the first drug; and from September 11, 2014, until the present, it has used midazolam hydrochloride as the first drug. Id.

C.

Boyd's present suit is one of several challenges brought by Alabama death row inmates pursuant to 42 U.S.C. § 1983 in the Middle District of Alabama, alleging that Alabama's current lethal injection protocol is unconstitutional. On October 2, 2014, less than a month after the ADOC substituted midazolam

for pentobarbital as the first drug in the lethal injection protocol, Boyd brought suit in that court and, in December 2014, filed an amended complaint that alleged the following facts. Boyd asserts that the ADOC's switch from pentobarbital to midazolam renders it substantially more likely that he will suffer unnecessarily during the execution. Unlike pentobarbital, Boyd says, midazolam is "wholly unsuitable as the first drug in a three-drug lethal injection protocol because it will not render [him] unconscious, numb, and insensate from the administration of the painful second and third drugs, rocuronium bromide and potassium...