Grayson v. Dunn

• Decision Date: 22 December 2015
• Docket Number: 2:13-CV-0781-WKW,2:14-CV-1028-WKW,CASE NOS. 2:12-CV-0316-WKW,2:14-CV-1030-WKW,2:14-CV-1029-WKW
• Citation: 156 F.Supp.3d 1340
• Parties: Carey Dale Grayson, Demetrius Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt, Plaintiffs, Christopher E. Brooks, Intervenor Plaintiff, v. Jefferson S. Dunn, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

156 F.Supp.3d 1340

Carey Dale Grayson, Demetrius Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt, Plaintiffs,Christopher E. Brooks, Intervenor Plaintiff,

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

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

Signed December 22, 2015

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

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

MEMORANDUM OPINION AND ORDER

W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGE

Intervenor Plaintiff Christopher E. Brooks, a death-row inmate, is in the custody of the Alabama Department of Corrections (“ADOC”) awaiting his execution scheduled for January 21, 2016. On November 24, 2015, Brooks intervened in this consolidated action (the “Midazolam Litigation”) filed under 42 U.S.C. § 1983. He challenges the constitutionality of Alabama's method of execution, alleging that Alabama's current three-drug lethal injection protocol creates a substantial risk of serious harm in violation of the Eighth Amendment to the United States Constitution. (Doc. # 72.) This matter is before the court on Brooks's Emergency Motion to Stay Execution (Doc. # 81), which has been fully briefed and is ripe for review.¹

Having carefully considered the motion, the parties' respective arguments, and the applicable law, the court will deny Brooks's emergency motion to stay based upon his unnecessary delay and a failure to demonstrate a substantial likelihood of success on the merits. His emergency motion to stay his execution comes too late in the litigation day.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1993, Brooks was convicted of capital murder and sentenced to death for the murder of Ms. Jo Dean Campbell in December of 1992. Brooks v. State , 695 So.2d 176, 178 (Ala.Crim.App.1996). His death sentence was affirmed on direct appeal. Ex parte Brooks , 695 So.2d 184 (Ala.1997). On October 6, 1997, the United States Supreme Court denied Brooks's petition for a writ of certiorari. Brooks v. Alabama , 522 U.S. 893, 118 S.Ct. 233, 139 L.Ed.2d 164 (1997).

Brooks then collaterally attacked his conviction by filing a petition pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. In 2001, the trial court denied that petition. Brooks v. State , 929 So.2d 491 (Ala.Crim.App.2005). The Alabama Court of Criminal Appeals affirmed that denial, id . at 512, and the Alabama Supreme Court denied certiorari. Ex parte Brooks , . 104129 (Ala. Oct. 21, 2005).

In 2005, Brooks filed a habeas petition under 28 U.S.C. § 2254 ; it was denied in 2009. Brooks v. Campbell, et al. , No. 2:05cv02357 (N.D. Ala. Mar. 31, 2009 (Doc. # 39). That denial was affirmed on appeal. Brooks v. Comm'r, Ala. Dep't of Corrs. , 719 F.3d 1292 (11th Cir.2013). On March 24, 2014, the Supreme Court denied Brooks's petition for a writ of certiorari. Brooks v. Thomas , ––– U.S. ––––, 134 S.Ct. 1541, 188 L.Ed.2d 562 (2014).

On September 10, 2014, the ADOC amended its execution protocol in two respects: (1) it substituted midazolam hydrochloride for pentobarbital as the first drug administered in its three-drug, lethal-injection sequence, and (2) it substituted rocuronium bromide for pancuronium bromide as the second drug to be administered. (Doc. # 72-3.) The following day, September 11, 2014, the State of Alabama moved the Alabama Supreme Court to set execution dates for several death-row inmates, including Brooks. His execution date was initially set for May 21, 2015. In response, Brooks moved to stay his execution, pending the Supreme Court's then-pending decision in Glossip v. Gross , No. 14–7955, a case concerning the constitutionality of the use of midazolam in lethal-injection executions in Oklahoma. Because Alabama had not yet executed anyone under its newly revised execution protocol using midazolam in the drug sequence, the outcome of Glossip had implications for Alabama's three-drug execution protocol as well. The State of Alabama did not oppose the motion to stay. On March 23, 2015, the Alabama Supreme Court stayed Brooks's execution date.

On June 29, 2015, the Supreme Court issued its decision in Glossip v. Gross , ––– U.S. ––––, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015). Glossip was litigated on a motion for preliminary injunction. See id. at 2736–37. The Glossip Court held that the plaintiffs, a number of Oklahoma death-row inmates, failed to establish a likelihood of success on the merits of their claim that the use of midazolam, as the first drug in Oklahoma's three-drug execution protocol, violates the Eighth Amendment ban against cruel and unusual punishment. Id. at 2736–46.

Post-Glossip , on September 24, 2015, the State again moved the Alabama Supreme Court to set an execution date for Brooks. (Doc. # 72-4.) Brooks had no active litigation pending at the time.

Forty days later, on November 2, 2015, while the State's motion to set an execution date for Brooks was pending before the Alabama Supreme Court, Brooks moved to intervene in this action pursuant to Fed. R. Civ. P. 24(b). On November 23, 2015, after briefing and Defendants' non-opposition to the motion to intervene, the motion to intervene was granted. (Doc. # 69.) On the same day, the Alabama Supreme Court granted the State's motion and set Brooks's execution for January 21, 2016. (Doc. # 81-4.) The next day, November 24, 2015, Brooks filed his Intervenor Complaint. (Doc. # 72.) On December 1, 2015, Defendants moved to dismiss (Doc. # 73), and Brooks responded on December 8, 2015 (Doc. # 83). On December 4, 2015, Brooks filed an Emergency Motion for Stay of Execution (Doc. # 81), to which the Defendants have responded. (Doc. # 88.) A tentative hearing date of December 18, 2015, was set for the emergency motion, along with a truncated briefing schedule to be completed before December 18. (Doc. # 75.) Upon review of the submissions on the motion to stay execution, and for reasons more fully explained herein, the hearing was cancelled. (Doc. # 91.)

Brooks's intervention is into a group of consolidated cases called the “Midazolam Litigation” (see Doc. # 59) brought by five other inmates identified in the style of this case. Final hearing is set for April 19–22, 2016. (Doc. # 67.) Naturally, Brooks wants in the game, and he is of late on the roster. Indeed, the pendency of that final hearing in April 2016 has been identified as a reason to stay his execution.

Also pending before the undersigned is the § 1983 Arthur litigation, infamous for a rich (some say sordid) litigation history. See Arthur v. Myers, et al ., No. 2:11cv438 (M.D.Ala.2011). After years of litigation switchbacks worthy of a dirt road in Eastern Kentucky, and five execution dates (see Doc. # 186 at 8, n. 4), Arthur now has challenged the current protocol and offered execution alternatives. In 2012, this court, another judge sitting, was directed by the Eleventh Circuit to have a hearing on a prior three-drug protocol involving the switch from sodium thiopental to pentobarbital to determine whether the switch to pentobarbital was a significant change in the protocol that restarted the statute of limitations for Arthur. See Arthur v. Thomas , 674 F.3d 1257, 1263 (11th Cir.2012). Before that final hearing could be held, on September 10, 2014, the State changed the protocol yet again, to midazolam as the first drug, due to the unavailability of sodium thiopental and pentobarbital (Doc. #190-2), and Arthur amended his complaint accordingly, incorporating the change to midazolam. (Doc. # 267.) The final hearing in Arthur is set to begin January 12, 2016, (Doc. # 264), and most of the issues Brooks raises are likely to be addressed in a full-blown trial in the Arthur case. Brooks claims the potential benefit of Arthur's proceedings, proceedings to which he is not a party and into which he did not intervene.

Brooks is the caboose on a long litigation train, which ironically appears to be running in reverse for him. Brooks, unlike Arthur with five execution dates, has had only two execution dates: one pre-Glossip and one post-Glossip, which is the present January 21, 2016 execution date. However, the illusion of the train running in reverse toward its final destiny is his doing.

II. POSITIONS OF THE PARTIES

A. Brooks's Intervenor Complaint

In his Intervenor Complaint, filed on November 24, 2015, Brooks alleges that Alabama's current execution protocol, involving the injection of a series of three drugs, midazolam, rocuronium bromide, and potassium chloride, in that sequence, is unconstitutional. He claims that midazolam, the first drug to be administered, will not properly anesthetize him so as to prevent him from feeling an “unconstitutional level of pain” (Doc. # 72 at 1), associated with the injection of the other two drugs that will kill him. On this premise, Brooks claims 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 his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

Brooks recognizes that in order to maintain his challenge to Alabama's method of execution, he must “identify a known and available alternative method of execution that entails a lesser risk of pain.” Glossip , 135 S.Ct. at 2731. To comply with Glossip, Brooks claims that there are alternative methods of execution available to Defendants that significantly reduce the risk of an unconstitutional level of pain. For instance, he claims that numerous states have switched from a two- or- three-drug protocol to a one-drug protocol, and that since January 1, 2014, in other states,...