Grayson v. Dunn

• Decision Date: 31 October 2016
• Docket Number: CASE NOS. 2:12–CV–0316–WKW,2:16–CV–0269–WKW,2:16–CV–0267–WKW,2:13–CV–0781–WKW,2:14–CV–1028–WKW,2:16–CV–0284–WKW,2:14–CV–1029–WKW,2:16–CV–0268–WKW,2:16–CV–0270–WKW,2:14–CV–1030–WKW
• Citation: Grayson v. Dunn, 218 F.Supp.3d 1321 (M.D. Ala. 2016)
• Parties: Carey Dale GRAYSON, Demetrius Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt, Plaintiffs, v. Jefferson S. DUNN, et al., Defendants. and Charles Lee Burton, Robert Bryant Melson, Ronald Bert Smith, Geoffrey Todd West, Torrey Twane Mcnabb, Plaintiffs, v. Jefferson S. Dunn, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

218 F.Supp.3d 1321

Carey Dale GRAYSON, Demetrius Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt, Plaintiffs,

v.Jefferson S. DUNN, et al., Defendants.andCharles Lee Burton, Robert Bryant Melson, Ronald Bert Smith, Geoffrey Todd West, Torrey Twane Mcnabb, Plaintiffs,

v.Jefferson S. Dunn, et al., Defendants.

CASE NOS. 2:12–CV–0316–WKW

2:13–CV–0781–WKW

2:14–CV–1028–WKW

2:14–CV–1029–WKW

2:14–CV–1030–WKW

2:16–CV–0267–WKW

2:16–CV–0268–WKW

2:16–CV–0269–WKW

2:16–CV–0270–WKW

2:16–CV–0284–WKW

United States District Court, M.D. Alabama, Northern Division.

Signed October 31, 2016

John Anthony Palombi, Spencer Jay Hahn, William Marcus Ermine, Federal Defenders, Montgomery, AL, for Plaintiffs.

James Roy Houts, Office of Attorney General, Capital Litigation Division, Montgomery, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGE

I. BACKGROUND

Plaintiffs Carey Dale Grayson, Demetrius Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt are Alabama death-row inmates who have been committed to the custody of the Alabama Department of Corrections ("ADOC") awaiting their presently unscheduled executions. They each filed separate actions under 42 U.S.C. § 1983 challenging the constitutionality of Alabama's method-of-execution under the Eighth Amendment to the United States Constitution. Because these actions involve common questions of fact and law, on September 5, 2015, the court consolidated these five cases for discovery and trial in order to promote judicial economy, eliminate duplication of discovery, and avoid unnecessary costs. (See Doc. # 59.)

This matter is before the court on Defendants' Motion for Summary Judgment on Plaintiffs' Eighth Amendment claims. (Doc. # 127.) The motion has been fully briefed and is ripe for review. Defendants' motion is due to be granted.

A. Plaintiffs' Capital Litigation History

Plaintiffs Grayson, Frazier, Roberts, Myers, and Hunt all have been convicted of capital murder and sentenced to death. Grayson was convicted of capital murder for the February 1994 death of Vickie Deblieux committed during a kidnapping in the first degree. Grayson v. State , 824 So.2d 804 (Ala. Crim. App. 1999). In October 1996, Frazier was convicted of capital murder of Pauline Brown. Frazier v. State , 758 So.2d 577 (Ala. Crim. App. 1999) ; Ex parte Frazier , 758 So.2d 611 (Ala. 1999). In December 1992, Roberts was convicted on two counts of capital murder for the death of Annetra Jones, for murder committed during the commission of a robbery and arson. Roberts v. State , 735 So.2d 1244, 1269 (Ala. Crim. App. 1997). In January 1994, Myers was convicted on two counts of capital murder for the death of Ludie Mae Tucker because the murder occurred during the commission of a robbery and burglary. Myers v. State , 699 So.2d 1281 (Ala. Crim. App. 1996). In June 1990, Hunt was convicted on a three-count indictment for the capital murder of Karen Lane, committed during sexual abuse in the first degree and burglary in the first degree. Hunt v. State , 659 So.2d 933 (Ala. Crim. App. 1994) ; Ex Parte Hunt , 659 So.2d 960 (Ala. 1995).

Plaintiffs' direct appeals concluded many years ago,¹ and their state post-conviction and federal habeas proceedings have also been concluded for at least three years.²

B. Formation and Chronology of the Midazolam Litigation

From 2002 until 2011, sodium thiopental was the first drug used in the ADOC's three-drug, lethal injection protocol. In 2011, the ADOC amended its protocol by substituting pentobarbital for sodium thiopental as the first drug. At that time, the ADOC made no amendment to the other two drugs administered, pancuronium bromide and potassium chloride.

In April 2012, Grayson filed a § 1983 complaint challenging the ADOC's substitution of pentobarbital for sodium thiopental, alleging an Eighth Amendment violation. In October 2013, Frazier filed a similar § 1983 complaint challenging the ADOC's substitution of pentobarbital for sodium thiopental, also alleging an Eighth Amendment violation.

On September 10, 2014, the ADOC amended its execution protocol again, this time by substituting midazolam for pentobarbital as the first drug used in its three-drug, lethal-injection sequence, and by substituting rocuronium bromide for pancuronium bromide as the second drug. On September 11, 2014, the State disclosed the ADOC's amended protocol in motions the State filed in the Alabama Supreme Court to set execution dates for several death-row inmates. (Doc. # 160–1, ¶¶ 24–28.)

In October 2014, Plaintiffs Roberts, Myers, and Hunt filed separate § 1983 lawsuits challenging the ADOC's amended lethal-injection protocol employing midazolam instead of pentobarbital, alleging an Eighth Amendment violation.³ Subsequently, in January 2015, Frazier amended his complaint to challenge the ADOC's substitution of midazolam for pentobarbital, and in March 2015, Grayson followed suit, amending his complaint to challenge the ADOC's substitution of midazolam for pentobarbital.

In June 2015, the Supreme Court rendered its decision in Glossip v. Gross , ––– U.S. ––––, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015), and applied the Court's decision in Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), to Oklahoma's lethal-injection protocol (which is virtually identical to Alabama's protocol) and held that the plaintiffs failed to establish a likelihood of success on the merits of their claim that the use of midazolam violated the Eighth Amendment. Post–Glossip , the lawsuits filed by Roberts, Myers, and Hunt were consolidated with the pending lawsuits of Grayson and Frazier to form what the court has termed the "Midazolam Litigation," with the Grayson case (12–cv–316), the first-filed of these five cases, designated as the lead case. (Doc. # 59.) Following the close of discovery in the consolidated case, in compliance with the dispositive motions deadline established in the scheduling order (Doc. # 67), Defendants moved for summary judgment on Plaintiffs' Eighth Amendment claims. (Doc. # 127.)

C. Plaintiffs' Claims

Plaintiffs' amended complaints all assert identical Eighth Amendment claims challenging the ADOC's current execution protocol, alleging that the ADOC's use of midazolam, the first drug to be administered, is unconstitutional.⁴ Specifically, Plaintiffs assert that midazolam will not properly anesthetize them so as to prevent them from feeling an unconstitutional level of pain associated with the injection of potassium chloride, the third drug. On this premise, Plaintiffs claim that Defendants' current execution protocol creates a "substantial risk of serious harm," Baze v. Rees , 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion), and violates their right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Instead of the use of midazolam in a three-drug lethal injection protocol, Plaintiffs propose three alternative methods of execution, using either pentobarbital, sodium thiopental, or a 500–milligram dose of midazolam in a one-drug lethal injection protocol.

II. DISCUSSION

A. Defendants' Motion for Summary Judgment on Plaintiffs' Eighth Amendment Claims

Defendants contend they are entitled to summary judgment on Plaintiffs' Eighth Amendment claims because Plaintiffs cannot establish the second prong of Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), viz. , the existence of a known and available alternative method of execution that is "feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain." Glossip v. Gross , ––– U.S. ––––, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015). Defendants assert that the evidence garnered in discovery unequivocally shows that there is no genuine dispute that two of Plaintiffs' proposed alternatives—one-drug protocols using either compounded pentobarbital or sodium thiopental—are unavailable to the ADOC, and that Plaintiffs' own evidence contradicts a 500–milligram dose of midazolam as the sole agent of execution. Defendants also point out that Plaintiffs have failed to produce evidence of a single source for either compounded pentobarbital or sodium thiopental that is willing and able to provide either drug to the ADOC, and that Plaintiffs have also failed to produce any admissible evidence that a one-drug midazolam protocol would significantly reduce any alleged risk of severe pain from "[t]he three-drug protocol approved in Glossip ... the very same protocol that [Plaintiffs] challenge[ ] here." See Brooks v. Warden , 810 F.3d 812, 818 (11th Cir. 2016).

1. Standard of Review

Summary judgment is proper only when the record evidence, including depositions, affidavits, and other materials, shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Fed. R. Civ. P. 56(a), (c). "The moving party bears the burden of proof," Allen v. Bd. of Pub. Educ. for Bibb Cty. , 495 F.3d 1306, 1313 (11th Cir. 2007), and the court must "view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant," Skop v. City of Atlanta , 485 F.3d 1130, 1143 (11th Cir. 2007).

2. Standard for Establishing a § 1983 Method-of-Execution Claim

Summarizing the Baze /Glossip test, to successfully challenge a method of execution, a prisoner must establish that the method presents a risk that is " ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ " Glossip , 135 S.Ct. at 2737 (emphasis in original). To prevail, "there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless...