Jones v. Comm'r, Ga. Dep't of Corr.

• Decision Date: 01 February 2016
• Docket Number: No. 16–10277.,16–10277.
• Citation: 811 F.3d 1288
• Parties: Brandon Astor JONES, Plaintiff–Appellant, v. COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Georgia Diagnostic and Classification Prison, Other Unknown Employees and Agents, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

811 F.3d 1288

Brandon Astor JONES, Plaintiff–Appellant,

v.COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Georgia Diagnostic and Classification Prison, Other Unknown Employees and Agents, Defendants–Appellees.

No. 16–10277.

United States Court of Appeals, Eleventh Circuit.

Feb. 1, 2016.

Gerald Wesley King, Jr., Susan Jill Benton, Federal Defender Program, Inc., Atlanta, GA, Joshua T. Buchman, Rory K. Little, McDermott Will & Emery, LLP, Chicago, IL, for Plaintiff–Appellant.

Beth Attaway Burton, Sabrina Graham, Attorney General's Office, Atlanta, GA, for Defendants–Appellees.

Before MARCUS, WILSON and WILLIAM PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

In this capital case, Brandon Astor Jones appeals from the district court's recent order dismissing his civil rights complaint challenging Georgia's method of execution as violating the Fifth, Eighth, and Fourteenth Amendments. Jones's execution is currently scheduled for February 2, 2016 at 7:00 p.m. EST. Just a week before the scheduled execution, Jones petitioned our full Court for initial en banc review of that appeal; he also contemporaneously moved us for an emergency stay of execution. Although the petition for en banc review is now pending before the full Court, the application for a stay was filed with the panel, not the en banc court, and under our Local Rules, the emergency motion for stay is properly before the three-judge panel assigned to this case. See 11th Cir. R. 35–4 ("A petition for rehearing en banc tendered with respect to [an order ruling on a request for stay] will not be considered by the court en banc, but will be referred as a motion for reconsideration to the judge or panel that entered the order sought to be reheard.").¹

In his § 1983 complaint—just filed on December 22, 2015, in the Northern District of Georgia—Jones alleged that Georgia's method of execution amounts to cruel and unusual punishment in violation of the Eighth Amendment, and that Georgia's Lethal Injection Secrecy Act, O.C.G.A. § 42–5–36, deprives him of the information necessary to challenge its lethal injection protocol, in violation of his due process rights embodied in the Fifth, Eighth, and Fourteenth Amendments.² The district court dismissed the complaint in its entirety because, it ruled, Jones's claims were barred by binding Circuit precedent. In this emergency motion, Jones says that he seeks a stay of execution pending the full Court's resolution of his en banc petition. He seeks en banc review over the following question:

Does Georgia's lethal injection secrecy act violate Mr. Jones's Fifth, Eighth, and Fourteenth Amendment rights?

Notably, Jones has not challenged in either his petition for en banc review or in the motion for stay the district court's dismissal of his Eighth Amendment method-of-execution claim.³

I.

It is by now axiomatic that a court may grant a stay of execution only if the moving party establishes 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."See Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir.2011). "[T]he equitable principles at issue when inmates facing imminent execution delay in raising their ... challenges are equally applicable to requests for both stays and injunctive relief" which are "not available as a matter of right." Williams v. Allen, 496 F.3d 1210, 1212–13 (11th Cir.2007) (internal quotations omitted). "[L]ike other stay applicants, inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006).

After careful review, we deny Jones's emergency motion for stay because he has not shown a substantial likelihood of success on the merits and the equities counsel against imposing the stay.

A.

We begin with the first and most important question concerning a stay: whether Jones has shown a substantial likelihood of success on the merits of his due process claim. Our binding precedent forecloses Jones's due process claim, and thus Jones cannot show a substantial likelihood of success. See Terrell v. Bryson, 807 F.3d 1276 (11th Cir.2015) ; Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1260 (11th Cir.2014). In Wellons, a prisoner argued that "the dearth of information regarding the nature of the pentobarbital that will be used in his execution and the expertise of those who will carry it out violates the First Amendment [and] his right to due process." 754 F.3d at 1267. Relying on Supreme Court precedent, a panel of this Court held that "[n]either the Fifth, Fourteenth, or First Amendments afford [a prisoner] the broad right to know where, how, and by whom the lethal injection drugs will be manufactured, as well as the qualifications of the person or persons who will manufacture the drugs, and who will place the catheters." Id. at 1267 (quotations omitted). The Supreme Court denied a petition for certiorari. Wellons v. Owens, ––– U.S. ––––, 134 S.Ct. 2838, 189 L.Ed.2d 803 (2014). We reapplied this holding and rejected another identical claim in Terrell, 807 F.3d at 1276, and again the Supreme Court denied certiorari, Terrell v. Bryson, 577 U.S. ––––, 136 S.Ct. 614, 193 L.Ed.2d 494 (2015).

Under our Circuit's prior precedent rule, we are bound to follow a prior binding precedent "unless and until it is overruled by this court en banc or by the Supreme Court." United States v. Vega–Castillo, 540 F.3d 1235, 1236 (11th Cir.2008) (quotation omitted). Jones has not argued that Wellons conflicts with any of our decisions or those of the Supreme Court. His claim is foreclosed by our precedent and he cannot succeed on the merits.

Moreover, no other circuit court has ever recognized the kind of due process right-of-access claim that Jones now asserts, and the two other circuit courts of appeal that have faced similar challenges to this kind of state secrecy law have each squarely rejected the claim twice. See Zink v. Lombardi, 783 F.3d 1089, 1109 (8th Cir.2015), cert. denied, ––– U.S. ––––, 135 S.Ct. 2941, 192 L.Ed.2d 976 (2015) ("We agree with the Eleventh and Fifth Circuits that the Constitution does not require such disclosure. A prisoner's ‘assertion of necessity—that [the State] must disclose its protocol so he can challenge its conformity with the Eighth Amendment—does not substitute for the identification of a cognizable liberty interest.’ " (citations omitted)); Trottie v. Livingston, 766 F.3d 450, 452 (5th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 41, 189 L.Ed.2d 892 (2014) ("A due process right to disclosure requires an inmate to show a cognizable liberty interest in obtaining information about execution protocols. Trottie speculates that there are unknowns regarding the drug to be used which may add an unacceptable risk of pain and suffering. However, we have held that an uncertainty as to the method of execution is not a cognizable liberty interest."); Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir.2013) ("There is no violation of the Due Process Clause from the uncertainty that Louisiana has imposed on Sepulvado by withholding the details of its execution protocol."); Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir.2011) (holding that the prisoners, who argued that the Arkansas Method of Execution Act violated the due process clause because its secrecy denied them "an opportunity to litigate" their claim that the execution protocol violated the Eighth Amendment, failed to state a plausible due process access-to-the-courts claim).⁴

Jones has not identified any cognizable liberty interest infringed by the Georgia secrecy law nor has he even begun to describe the framework for analyzing this novel constitutional right. Jones challenges the Georgia statute pursuant to 42 U.S.C. § 1983, which "is not itself a source of substantive rights" and requires Jones to "identify the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). The sole question Jones presents in this motion for stay—and indeed the only one for which he seeks initial en banc review—is whether Georgia's secrecy law violates his claimed Fifth and Fourteenth Amendment rights "to know where, how, and by whom the lethal injection drugs will be manufactured, as well as the qualifications of the person or persons who will manufacture the drugs, and who will place the catheters," Wellons, 754 F.3d at 1267 (quotations omitted), so that he may effectively challenge Georgia's lethal injection protocol. While his complaint in the district court alleged an Eighth Amendment challenge to Georgia's method of execution as well as a separate challenge to the secrecy statute based on due process, he has not appealed from the district court's dismissal of the Eighth Amendment claim.

With the companion Eighth Amendment claim no longer at issue on appeal, all we have before us is Jones's stand-alone claim that Georgia's secrecy statute infringes his ability to "discover grievances, and to litigate effectively once in court"—a right the Supreme Court has told us the Constitution does not guarantee to him. See Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Having untethered the Eighth Amendment claim from this appeal, Jones has no claim that implicates any constitutional right. Thus, in challenging the Georgia secrecy statute, Jones has failed to state a claim that § 1983 can redress.

B.

But even if we were to also consider Jones's Eighth Amendment method-of-execution challenge—which was dismissed by the district court and is not a part of his appeal—in deciding whether to grant a stay, there is still a fatal flaw in that claim: he has...