Grayson v. Warden, Comm'r, Ala. DOC

• Decision Date: 01 September 2017
• Docket Number: No. 16–16876,16–16876
• Parties: Carey Dale GRAYSON, et al 2:12–cv–00316 Plaintiffs, v. WARDEN, COMMISSIONER, ALABAMA DOC, Defendants. Demetrius Frazier, 2:13–cv–00781 ConsolPlaintiff–Appellant, v. Warden, Commissioner, Alabama Doc, Defendants–Appellees. David Lee Roberts, 2:14–cv–01028 ConsolPlaintiff–Appellant, v. Warden, Commissioner, Alabama Doc, Defendants–Appellees. Robin D. Myers, 2:14–cv–01029 ConsolPlaintiff–Appellant, v. Warden, Commissioner, Alabama Doc, Defendants–Appellees. Gregory Hunt, 2:14–cv–01030 Consol Plaintiff–Appellant, v. Warden, Commissioner, Alabama Doc, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

869 F.3d 1204

Carey Dale GRAYSON, et al 2:12–cv–00316 Plaintiffs,

v.WARDEN, COMMISSIONER, ALABAMA DOC, Defendants.

Demetrius Frazier, 2:13–cv–00781 ConsolPlaintiff–Appellant,

v.Warden, Commissioner, Alabama Doc, Defendants–Appellees.

David Lee Roberts, 2:14–cv–01028 ConsolPlaintiff–Appellant,

v.Warden, Commissioner, Alabama Doc, Defendants–Appellees.

Robin D. Myers, 2:14–cv–01029 ConsolPlaintiff–Appellant,

v.Warden, Commissioner, Alabama Doc, Defendants–Appellees.

Gregory Hunt, 2:14–cv–01030 Consol Plaintiff–Appellant,

v.Warden, Commissioner, Alabama Doc, Defendants–Appellees.

No. 16–16876

United States Court of Appeals, Eleventh Circuit.

September 1, 2017

William Ermine, Spencer Jay Hahn, John Anthony Palombi, Federal Defender Program, Inc., Montgomery, AL, Plaintiffs–Appellants.

Thomas R. Govan, Jr., James Clayton Crenshaw, James Roy Houts, Lauren Ashley Simpson, Alabama Attorney General's Office, Montgomery, AL, for Defendants–Appellees.

Before TJOFLAT, ROSENBAUM and JILL PRYOR, Circuit Judges.

TJOFLAT, Circuit Judge.

I.

On July 1, 2002, the State of Alabama chose lethal injection, rather than electrocution, as its preferred method of implementing capital punishment.¹ The Alabama Department of Corrections ("ADOC") thereafter adopted a three-drug protocol to administer the injection.² The United States Supreme Court described an identical protocol, as implemented by the State of Kentucky, in Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) :

The first drug, sodium thiopental

..., is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. The second drug, pancuronium bromide..., is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs.

Id. at 44, 128 S. Ct. at 1527 (internal citations omitted).

On April 26, 2011, Alabama substituted pentobarbital

, "a short-acting barbiturate" sedative,³ for sodium thiopental, as the first drug in its execution protocol. Powell v. Thomas , 643 F.3d 1300, 1302 (11th Cir. 2011). Then, on September 10, 2014, the State substituted midazolam

, a benzodiazepine sedative,⁴ for pentobarbital. Brooks v. Warden , 810 F.3d 812, 816–17 (11th Cir. 2016). It also substituted rocuronium bromide for pancuronium bromide as the second drug. Id. at 817. Potassium chloride remained the third drug. Id.

In the four cases at hand, the appellants, four death row prisoners awaiting execution, claim that if they are executed in accordance with the lethal injection protocol now in place, they will suffer "cruel and unusual punishment" in violation of the Eighth Amendment.⁵ They seek an order under 42 U.S.C. § 1983 enjoining the ADOC⁶ from executing them pursuant to that protocol.⁷ In Glossip v. Gross , ––– U.S. ––––, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015), the Supreme Court made clear that the "controlling opinion in Baze " set forth the two-pronged standard a plaintiff must satisfy "to succeed on an Eighth Amendment method-of-execution claim." The first prong requires the prisoner to demonstrate that the challenged method of execution presents "a ‘substantial risk of serious harm.’ " Id. (quoting Baze , 553 U.S. at 50, 128 S.Ct. at 1531 ). That is, the method must "present[ ] a risk that is ‘sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.’ " Id. (quoting Baze , 553 U.S. at 50, 128 S.Ct. at 1531 ). The second requires the prisoner to "identify an alternative that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’ " Id. (quoting Baze , 553 U.S. at 52, 128 S.Ct. at 1532 ). Showing "a slightly or marginally safer alternative" is insufficient to mount a successful challenge to a State's method of execution. Id. (quoting Baze , 553 U.S. at 51, 128 S.Ct. at 1531 ).⁸

Appellants contend that the ADOC's current protocol presents a substantial risk of serious harm that comports with Baze 's definition. They argue that the risk is substantial because midazolam

, a sedative, is not an analgesic like sodium thiopental and pentobarbital and will consequently fail to create the sustained state of anesthesia necessary to enable them to withstand the intolerable pain that will be generated by subsequent injections of rocuronium bromide

and potassium chloride. As required by Baze 's second prong, Appellants have also proposed three alternative methods of execution involving single injections of either sodium thiopental, compounded pentobarbital, or a 500–milligram bolus⁹ of midazolam.

Before us for review is the District Court's order of October 31, 2016, granting the ADOC's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.¹⁰ In its order, the Court concluded that Appellants had failed to present probative evidence creating "a genuine dispute of material fact as to [the existence of a feasible and readily implementable] alternative method of execution, an essential prong of the Baze/ Glos sip test for an Eighth Amendment method-of-execution claim." Since Appellants' proof failed to satisfy the alternative-method-of-execution requirement imposed by Baze , the Court dismissed Appellants' Eighth Amendment claims without addressing the other half of the Baze standard: whether the substitution of midazolam for pentobarbital as the first drug of the three-drug injection protocol created a "substantial risk of serious harm."

Appellants ask that we vacate the judgment because the District Court, rather than determining whether the ADOC had satisfied its Rule 56 burden of showing that there was "no genuine dispute as to any material fact," improperly assumed the role of the trier of fact and resolved the genuine factual disputes in the ADOC's favor.¹¹ The ADOC, in response, argues that the District Court did not err and, even if it had, the error is of no moment because the law-of-the-case doctrine bars Appellants' Eighth Amendment claims. If not, they argue the statute of limitations does so: they assert that the switch from pentobarbital to midazolam does not constitute a "substantial change" to the State's three-drug execution protocol; thus, the two-year limitations period passed years ago.

After hearing from the parties in oral argument and considering their briefs, we conclude that genuine issues of material fact preclude summary judgment. We also conclude that Appellants' Eighth Amendment claims are not barred by the law-of-the-case doctrine. As to the ADOC's limitations argument, they did not raise it below and the District Court did not consider it; we thus cannot address it in the absence of a factual determination as to whether the substitution of midazolam for pentobarbital constitutes a substantial change to Alabama's execution protocol. We accordingly vacate the District Court's judgment and remand these cases for further proceedings.

II.

The operative complaints and answers in these cases are identical with respect to the Appellants' Eighth Amendment claim now before us. For convenience, we refer only to Demetrius Frazier's second amended complaint ("Frazier's Complaint" or "the Complaint").¹² Similarly, our references to the ADOC's motion to dismiss and answer correspond specifically to the documents the ADOC filed in response to Frazier's Complaint.

Frazier's Complaint, filed on August 25, 2016, alleges—with respect to Baze 's"substantial risk of serious harm" prong—that midazolam

will fail to anesthetize Frazier and therefore subject him to the intolerable pain the administration of rocuronium bromide and potassium chloride will cause.¹³ The Complaint alleges—with respect to Baze 's requirement that a prisoner plead and prove the existence of an "alternative" method-of-execution significantly reducing a risk of severe pain—that "a single bolus of [compounded] pentobarbital

.... is read[ily] available, and would entirely reduce the risk of pain associated with administering the paralytic and potassium chloride, because those drugs would not be used"; that sodium thiopental is available and "would cause death without need of a paralytic or potassium chloride";¹⁴ that "a 500mg dose of midazolam will likely cause death in under an hour";¹⁵ and that the ADOC "can obtain midazolam."

In addition to this statement of Frazier's Eighth Amendment claim, the Complaint also includes facts its drafter apparently thought would be probative of his Eighth Amendment claim at trial, but that are unnecessary to establish an Eighth Amendment claim sufficient to withstand a motion to dismiss. These unnecessary assertions of fact include: that midazolam administered in a multi-drug protocol previously failed to anesthetize prisoners executed in Ohio,¹⁶ Oklahoma,¹⁷ and Arizona;¹⁸ that "[n]umerous states have switched from a two or three-drug protocol to a one-drug protocol"; that "[a] report issued by a bipartisan committee recommended that states discontinue using three-drug lethal injection cocktails and instead use a single large dosage of a barbiturate";¹⁹ that "[s]tates including Texas, Colorado, Ohio, Georgia, Missouri, Mississippi, Oklahoma, South Dakota, and Pennsylvania have used or intend to use compounded pentobarbital for executions"; that "[s]ince January 1, 2014, nearly 40 executions have been carried out using a single bolus of pentobarbital, making it the most common method of execution in the United States";²⁰ and that the "Defendant's own expert endorses" the use of a single 500–milligram bolus of midazolam

as a method of execution.²¹

The drafter of the Complaint also apparently thought that...