Arthur v. Thomas

• Decision Date: 21 March 2012
• Docket Number: No. 11–15548.,11–15548.
• Citation: 674 F.3d 1257,23 Fla. L. Weekly Fed. C 842
• Parties: Thomas D. ARTHUR, Plaintiff–Appellant, v. Kim Tobias THOMAS, Interim Commissioner, Alabama Department of Corrections in his official capacity, Anthony Patterson, Warden, Holman Correctional Facility in his official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 842

674 F.3d 1257

Thomas D. ARTHUR, Plaintiff–Appellant,

v.Kim Tobias THOMAS, Interim Commissioner, Alabama Department of Corrections in his official capacity, Anthony Patterson, Warden, Holman Correctional Facility in his official capacity, Defendants–Appellees.

No. 11–15548.

United States Court of Appeals, Eleventh Circuit.

March 21, 2012.

Suhana Han, Meredith Calandra, Henry C. Quillen, Jordan Toumey Razza, Sullivan & Cromwell, LLP, New York City, for Plaintiff–Appellant.

James Clayton Crenshaw, Thomas R. Govan, Jr., Stephanie Reiland, Alabama Attorney General's Office, Montgomery, AL, for Defendant–Appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

Thomas D. Arthur, an Alabama state prisoner sentenced to death, appeals the dismissal of his 42 U.S.C. § 1983 complaint alleging that Alabama's method of executing inmates by lethal injection violates the Eighth and Fourteenth Amendments to the U.S. Constitution and the separation of powers required by Article III of the Alabama Constitution. Arthur's execution is currently scheduled to take place on March 29, 2012.

Arthur instituted this challenge¹ to Alabama's lethal injection procedure when Alabama announced in 2011 that it would switch from using sodium thiopental to pentobarbital as the first of the three drugs in its lethal injection protocol. Arthur alleges that pentobarbital takes substantially longer to render an inmate fully insensate than sodium thiopental and, as a result of this delayed effect, there is a significant risk that Alabama administers the second and third drugs in its lethal injection procedure before pentobarbital has taken effect. Arthur contends that this deficiency in Alabama's practice of carrying out lethal injections violates his right to be free from cruel and unusual punishment protected by the Eighth Amendment of the U.S. Constitution.

Arthur also alleges that (1) the prison personnel charged with carrying out lethal injections in Alabama fail to follow regular procedures in carrying out lethal injections, in violation of the Equal Protection Clause of the U.S. Constitution; (2) Alabama's policy of keeping information about its lethal injection procedure secret violates the Due Process Clause of the U.S. Constitution; and (3) Alabama's lethal injection policies violate the Alabama Constitution by impermissibly delegating lawmaking authority to prison officials.

Alabama moved to dismiss the complaint. The district court dismissed the Eighth Amendment and Due Process claims on statute of limitations grounds and the Equal Protection claim for failing to state a claim upon which relief can be granted. Having dismissed all of Arthur's federal claims, the district court declined to exercise supplemental jurisdiction over the state law claim. Arthur appeals the dismissal of all four of his claims.

A. Eighth Amendment Violation

The district court dismissed Arthur's Eighth Amendment claim on the ground that this claim was barred by Alabama's two-year statute of limitations. See Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir.2011) ( “The two-year limitations period ... applies to section 1983 actions in Alabama.”) (internal quotation marks omitted). In order to defeat Alabama's statute of limitations defense, Arthur must show that he filed his § 1983 complaint within two years of a significant change in Alabama's method of administering lethal injections. See McNair v. Allen, 515 F.3d 1168, 1177 (11th Cir.2008).² Arthur contends that he sufficiently alleged that the substitution of pentobarbital in Alabama's execution protocol gives rise to an impermissible risk that an inmate will be subject to substantial pain because the second and third drugs in the protocol will be administered prematurely. He argues that the district court erred in dismissing his complaint without considering the evidentiary basis of his claim that, in fact, a significant change has occurred in Alabama.

Whether a significant change has occurred in a state's method of execution is a fact-dependent inquiry, which we have treated as such in each of our recent cases addressing the lethal injection protocols of Alabama, Georgia and Florida. Although we concluded in Powell v. Thomas, 643 F.3d 1300 (11th Cir.2011), DeYoung v. Owens, 646 F.3d 1319 (11th Cir.2011) and Valle v. Singer, 655 F.3d 1223, 1226 (11th Cir.2011), that the replacement of sodium thiopental with pentobarbital did not constitute a “significant change” in the lethal injection execution protocol, each of these decisions is premised on the specific factual allegations and/or evidence presented and considered in each of those cases. None of the previous courts that were asked to decide whether the substitution of pentobarbital for sodium thiopental is a “significant change” in the lethal injection protocol could have resolved, nor did they resolve, that claim without considering the facts and evidence. Simply because no court, based on the allegations and evidence that has been presented in cases to date, has found a significant change does not mean that such evidence does not exist. To read our circuit decisions in Powell, DeYoung, and Valle as holding—no matter what new facts allege or new evidence reveals—that Alabama's, Georgia's and Florida's substitutions of pentobarbital for sodium thiopental is not a significant change in their execution protocols is to ignore the reality that scientific and medical evidence that exists today may differ from that which new scientific and medical discoveries and research reveal tomorrow.

Specifically, we held in Powell (Williams) v. Thomas that, based on the district court's review of the evidence and factual findings after a hearing on a death row inmate's motion to stay his execution, “ the evidence present” did not demonstrate a “substantial likelihood of success on the merits” of the inmate's Eighth Amendment challenge. 641 F.3d 1255, 1257 (11th Cir.2011). We did so only after determining that the district court had not “abused its discretion” by deciding to credit an expert report submitted by Alabama, id., and only with the benefit of the district court's finding “that the State's representations about the amended execution protocol were accurate.” Id. at 1258. Next, in Powell, we reviewed a complaint presenting identical allegations and relying on the same expert testimony and exhibits as were rejected in Powell (Williams), and we affirmed the dismissal of the complaint because its allegations and supporting evidence were indistinguishable from those in Powell (Williams). 643 F.3d at 1302 (noting that Powell's complaint was “nearly identical” to the one filed in Powell (Williams)); id. at 1303 (reviewing evidence relied on by both Williams and Powell). And in DeYoung and Valle, we affirmed the denial of death-row inmates' motions to stay their executions with the benefit of extensive fact-finding made by the district court at evidentiary hearings conducted in both cases. See 646 F.3d at 1323 (reviewing district court's factual findings); 655 F.3d at 1226 (adopting district court's opinion considering evidence presented at a hearing on a motion for stay of execution).

The district court in Arthur's case, however, never considered Arthur's evidence in support of his allegations that there has been a “significant change” to Alabama's execution protocol, instead summarily concluding that his Eighth Amendment claim was barred by the statute of limitations. ³ Thus, unlike each of our recent precedents dismissing inmates' § 1983 lethal injection execution claims, we have no evidentiary basis whatsoever on which to conclude whether, as Arthur alleges, a “substantial change” in Alabama's administration of its execution protocol has occurred. McNair, 515 F.3d at 1177. There has been no finding about the manner in which Alabama administers its lethal injections, no evaluation of whether Alabama's representations are accurate, and no opportunity whatsoever to contradict the State's assertions with Arthur's own evidence. And the lack of factual development in this record is only exacerbated by Alabama's policy of maintaining secrecy surrounding every aspect of its three-drug execution method.

For several reasons, we conclude that Arthur's Eighth Amendment allegations are not so similar to those presented in our previous cases that his complaint can be dismissed on a Rule 12(b)(6) motion. See Anders v. Hometown Mortg. Svcs., 346 F.3d 1024, 1031 (11th Cir.2003) (holding that disposition of a previous case may bind a subsequent decision only when the “facts and circumstances [are] sufficiently similar to those under which [the previous decision] arose.”). In DeYoung, we concluded that the evidence presented at an evidentiary hearing showed that no substantial change had occurred in Georgia's method of execution within two years of the filing of the plaintiff's complaint in 2011. 646 F.3d at 1325 (concluding that the evidence presented did not show a substantial change and proceeding to review this evidence). However, that Georgia's method of execution may not have undergone a substantial change in the relevant time period has no bearing on the factual question of whether a substantial change has occurred in the way that Alabama administers its method of execution, as Arthur's complaint alleges.⁴

Our holdings in Powell and Powell (Williams), unlike DeYoung, involved challenges to Alabama's administration of lethal injections, however, Arthur's complaint and supporting affidavits are sufficiently different from the complaint filed in both cases to survive dismissal at the pleadings stage. In particular, Arthur's complaint is supported by the affidavits of two expert witnesses who had reviewed the testimony of Alabama's expert witness and were prepared to rebut that testimony. Both experts were prepared to testify about specific...