Deyoung v. Owens

• Citation: 646 F.3d 1319,23 Fla. L. Weekly Fed. C 145
• Decision Date: 20 July 2011
• Docket Number: No. 11–13235.,11–13235.
• Parties: Andrew Grant DeYOUNG, Plaintiff–Appellant,v.Brian OWENS, Commissioner, Georgia Department of Corrections, Carl Humphrey, Warden, Georgia Diagnostic and Classification Prison, other unknown employees and agents, Georgia Department of Corrections, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

646 F.3d 1319

23 Fla. L. Weekly Fed. C 145

Andrew Grant DeYOUNG, Plaintiff–Appellant,

v.Brian OWENS, Commissioner, Georgia Department of Corrections, Carl Humphrey, Warden, Georgia Diagnostic and Classification Prison, other unknown employees and agents, Georgia Department of Corrections, Defendants–Appellees.

No. 11–13235.

United States Court of Appeals, Eleventh Circuit.

July 20, 2011.

Jeffrey Lyn Ertel, Fed. Pub. Def., Brian S Kammer, Georgia Resource Ctr., Atlanta, GA, Mark Evan Olive, Law Offices of Mark E. Olive, PA, Tallahassee, FL, for Plaintiff–Appellant.Patricia Beth Attaway Burton, Joseph J. Drolet, Sabrina D. Graham, Theresa Marie Schiefer, Mary Beth Westmoreland, Atlanta, GA, for Defendants–Appellees.Appeal from the United States District Court for the Northern District of Georgia.Before DUBINA, Chief Judge, and EDMONDSON and HULL, Circuit Judges.HULL, Circuit Judge:

Georgia death-row inmate Andrew DeYoung brutally murdered his mother, his father, and his fourteen year old sister, Sarah, and was convicted and sentenced to death. See, e.g., DeYoung v. Schofield, 609 F.3d 1260, 1262 (11th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1691, 179 L.Ed.2d 628 (2011).¹

DeYoung is scheduled to be executed by lethal injection at 7:00 p.m. on Wednesday, July 20, 2011. On Friday, July 15, 2011, DeYoung filed a 42 U.S.C. § 1983 action alleging that the State of Georgia's method of lethal execution will violate his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to equal protection. DeYoung moved for a temporary restraining order (“TRO”) and stay of execution, as well as further declaratory and injunctive relief seeking to prevent the State from executing him using its current lethal injection protocol.

On Monday, July 18, 2011, the State moved to dismiss, arguing that DeYoung's claims are barred by the statute of limitations and fail to state a claim upon which relief can be granted. After holding an evidentiary hearing on Tuesday, July 19, 2011, the district court entered a thorough 28–page order on July 20, 2011, denying DeYoung's motions for a TRO and stay of execution and granting the State's motion to dismiss. Thereafter, the district court also denied DeYoung's motion for stay of execution pending appeal and separate motion to alter judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.

DeYoung appealed and filed a motion for a stay of execution in this Court. After review, we deny DeYoung's motion for a stay of execution.

I. BACKGROUND

A. Georgia's Lethal Injection Protocol

Georgia law provides that “[a]ll persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection,” which it defines as “the continuous intravenous injection of a substance or substances sufficient to cause death into the body of the person sentenced to death until such person is dead.” O.C.G.A. § 17–10–38(a) (2000).

Under the lethal injection protocol promulgated by the Georgia Department of Corrections (“GDOC”), death-sentenced prisoners are administered a succession of three chemicals in the following order: (1) 5,000 milligrams of pentobarbital, an anesthetic that is administered to render the inmate unconscious; (2) 50 milligrams of pancuronium bromide, a paralytic agent; and (3) 120 milliequivalents of potassium chloride, which induces cardiac arrest, causing the inmate's death.

The protocol calls for an IV nurse to examine the inmate to ensure he is unconscious before the pancuronium bromide is administered. If the inmate is not unconscious, the protocol requires GDOC staff to repeat the administration of pentobarbital and subsequent consciousness check until the inmate is deemed to be unconscious.

Until May 13, 2011, the anesthetic used was sodium thiopental (a/k/a sodium pentothal). Lack of sodium thiopental availability led Georgia on May 13, 2011 to switch to the use of pentobarbital as the anesthetic in its lethal injection protocol.

B. DeYoung's Claims

DeYoung's challenge to the State's method of execution is two-pronged. First, he contends the GDOC's lethal injection protocol violates the Eighth Amendment's prohibition of cruel and unusual punishment. Specifically, DeYoung alleges, among other things, that the use of pentobarbital as an anesthetic poses a substantial risk of serious harm to him because: (1) pentobarbital has been insufficiently tested for induction of anesthetic coma in fully conscious persons, and (2) in prior executions using pentobarbital, the drug did not painlessly anesthetize the prisoners.

Second, DeYoung contends the GDOC's lethal injection protocol, as written and as administered in practice, violates his right to equal protection under the Fourteenth Amendment because: (1) the written protocol contains gaps in the execution procedure that the GDOC fills in on an ad hoc basis, leading to disparate treatment for different inmates; and (2) the GDOC deviates from the written protocol, similarly leading to disparate treatment for different inmates. The State promptly filed a motion to dismiss on numerous grounds, including the statute of limitations and failure to state a claim.

C. District Court's Order

In granting the State's motion to dismiss, the district court found: (1) DeYoung's claims accrued in 2001, when Georgia adopted lethal injection as its method of execution; (2) Georgia's substitution of pentobarbital for sodium thiopental did not constitute a significant alteration to the protocol that would re-set the limitations period; (3) GDOC's alleged deviations from the written protocol began no later than May 2008; and (4) DeYoung's two-year limitations period expired eight years before he filed this action.

Alternatively, even if the statute of limitations did not bar his § 1983 action, the district court concluded that DeYoung failed to state a claim upon which relief could be granted. As to the Eighth Amendment claim, the district court found, among other things: (1) DeYoung's evidence failed to show that the administration of pentobarbital inflicts serious harm; (2) DeYoung has not proven that former inmate Roy Blankenship (who on June 23, 2011 was executed by the State of Georgia using pentobarbital as the anesthetic) suffered pain or serious harm; (3) that DeYoung's expert “failed to provide a medical explanation for why pentobarbital might have caused Blankenship pain” and “[t]o the contrary, Dr. Waisel testified that a patient will not feel pain at the moment when a drug is introduced intravenously unless it is a drug, such as potassium chloride, which causes a burning sensation”; (4) DeYoung presented no evidence indicating a 5,000–milligram dose of pentobarbital fails to cause unconsciousness; (5) a consciousness check was performed on Roy Blankenship prior to injection of the second drug pancuronium bromide as required by Georgia's legal injection procedure; and (6) executions in Georgia do not proceed with the second drug until the inmate is unconscious and “DeYoung['s] execution cannot proceed until he is unconscious.” Thus, DeYoung did not show that Georgia's use of pentobarbital creates a substantial risk of serious harm to inmates.

As to DeYoung's Fourteenth Amendment claim, the district court found: (1) there was no support for “DeYoung's novel proposition” that the Equal Protection Clause requires the State to “produce a written protocol that is detailed enough to insure that every execution is precisely identical”; (2) the “deviations” from the written protocol of which DeYoung complains (including the use of nurses to insert IVs, the presence of two nurses instead of one, performance of numerous consciousness checks, and checks for IV infiltration or leakage) are consistent with Georgia's written protocol and “enure to the benefit” of inmates; and (3) the benign “deviations” are rationally related to the State's interest in safeguarding the execution process. Thus, DeYoung did not show an equal protection violation.

The district court denied DeYoung's request for a TRO and stay of execution because “he has absolutely no likelihood of success on the merits.”

II. DISCUSSION

On appeal, DeYoung moves this Court for a stay of execution and also appeals the district court's denial of a stay.² A stay of execution is equitable relief which this Court may grant “only if the moving party shows that: (1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest.” Powell v. Thomas, No. 11–12238, 641 F.3d 1255, 1257 (11th Cir. May 19, 2011), cert. denied, ––– U.S. ––––, 131 S.Ct. 2487, 179 L.Ed.2d 1243 (2011). We conclude that DeYoung is not entitled to a stay because he has not demonstrated, among other things, a substantial likelihood he will succeed on the merits of his claims. DeYoung's claims are barred by the statute of limitations and, even if they were timely, they fail as a matter of law. At a minimum, DeYoung has not established a substantial likelihood of success on the merits of his claims.

A. Statute of Limitations

Section 1983 claims “are tort actions, subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought.” Powell v. Thomas, No. 11–12613, 643 F.3d 1300, at 1303, 2011 WL 2437498, at *2 (11th Cir. Jun.15, 2011) (quotation marks omitted).³ Georgia has a two-year statute of limitations for personal injury actions. O.C.G.A. § 9–3–33. The two-year limitations period begins to run on “the date on which state review is complete, or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol,” whichever occurs later. McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir.2008).

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