Jordan v. Commissioner, Mississippi Department of Corrections, No. 17-12948

• Decision Date: 10 January 2020
• Docket Number: No. 17-12948
• Citation: 947 F.3d 1322
• Parties: Richard JORDAN, Ricky Chase, Plaintiffs-Appellants, v. COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Defendant, Georgia Department of Corrections, Movant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

947 F.3d 1322

Richard JORDAN, Ricky Chase, Plaintiffs-Appellants,

v.COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Defendant,Georgia Department of Corrections, Movant-Appellee.

No. 17-12948

United States Court of Appeals, Eleventh Circuit.

January 10, 2020

Amir H. Ali, James W. Craig, Emily M. Washington, Roderick & Solange MacArthur Justice Center, New Orleans, LA, William A. Morrison, The Morrison Firm LLC, Atlanta, GA, for Plaintiffs-Appellants.

Rebecca J. Dobras, Tina Michelle Piper, Attorney General's Office, Joseph J. Drolet, Atlanta, GA, for Movant-Appellee.

Before WILLIAM PRYOR, TJOFLAT, and JULIE CARNES, Circuit Judges.

ON PETITION FOR REHEARING

JULIE CARNES, Circuit Judge:

We vacate and reconsider our original opinion in this matter, reported at 908 F.3d 1259. We substitute in its place the following opinion.

Plaintiffs Richard Jordan and Ricky Chase, Mississippi death row inmates, served the Georgia Department of Corrections ("GDC") with a subpoena directing the GDC to testify at a Rule 30(b)(6) deposition and to produce documents concerning Georgia’s lethal injection protocol. Plaintiffs argued that the testimony and documents were necessary to support their 42 U.S.C. § 1983 claims pending in the Southern District of Mississippi challenging the legality of Mississippi’s lethal injection protocol. The GDC filed a motion to quash in the Northern District of Georgia, where compliance with the subpoena was required, arguing that disclosure of this information was barred by the Georgia Lethal Injection Secrecy Act.¹ Accepting the recommendation of a magistrate judge, the district court granted the motion to quash. Plaintiffs appeal, arguing that the district court did not apply the correct standard of review to the magistrate judge’s ruling, and that the motion to quash should have been denied on the merits. After careful review, we affirm.

PROCEDURAL BACKGROUND

This appeal is an offshoot of a § 1983 action filed by Plaintiffs in the Southern District of Mississippi. Plaintiffs are Mississippi death row inmates who challenge the constitutionality of Mississippi’s lethal injection protocol. Mississippi’s protocol recently was changed from a single injection procedure

using only sodium pentothal or pentobarbital to a three-drug procedure that requires the serial injection of: (1) either compounded pentobarbital or midazolam (a sedative/anesthetic), (2) vecuronium bromide (a paralytic), and (3) potassium chloride (which stops the heart). According to Plaintiffs, there is a substantial risk that neither compounded pentobarbital nor midazolam—the first drug in the series—will sufficiently anesthetize the condemned inmate. Consequently, Plaintiffs claim, an inmate who is injected with either drug could remain conscious and fully sensate and thus experience suffocation when the second drug in the series—the paralytic vecuronium bromide, which renders the inmate unable to breathe—is administered. Making matters worse, Plaintiffs contend, vecuronium bromide prevents all muscular movement and thus masks the pain that potassium chloride—the third and final drug in the series—is known to inflict in the absence of adequate anesthesia. Plaintiffs also argue that the use of compounded pentobarbital—in and of itself—can be painful to the inmate because of the possibility that the pentobarbital will be made of counterfeit ingredients or that it will be contaminated during the compounding process. Plaintiffs argue that Mississippi’s three-drug lethal injection protocol thus creates an unacceptable risk of severe and unnecessary suffering, in violation of the Eighth Amendment.

To prevail on their Eighth Amendment claims, Plaintiffs must show that there is an alternative to Mississippi’s three-drug protocol that is both "known and available" and that significantly reduces the risk of severe pain to the inmate. See Glossip v. Gross , ––– U.S. ––––, 135 S. Ct. 2726, 2738, 192 L.Ed.2d 761 (2015). To meet that burden, Plaintiffs point to alternative lethal injection protocols used by other states, including Georgia. The GDC has used a one-drug protocol that requires a single injection of compounded pentobarbital in its most recent executions. Asserting that the single-injection pentobarbital

protocol might, in theory, reduce the risk of pain to the condemned inmate, Plaintiffs contend that it is a known and available alternative to Mississippi’s three-drug protocol.

The Mississippi defendants² dispute Plaintiffs’ claim that pentobarbital is available to them, asserting at various times in the underlying § 1983 action that they are unable to acquire pentobarbital, even in its compounded form. For example, in their answer to Plaintiffs’ complaint, the Mississippi defendants denied that a single-drug procedure using pentobarbital was a feasible alternative to Mississippi’s three-drug protocol. They subsequently filed a motion to dismiss Plaintiffs’ § 1983 action under Glossip , citing the sworn testimony of Mississippi Department of Corrections officials stating that they had tried, but been unable to find a source of pentobarbital. In a hearing on the motion, the attorney for the Mississippi defendants emphasized that state corrections officials had not been able to obtain pentobarbital for use in executions despite a diligent search.

Plaintiffs acknowledge that pentobarbital has become difficult to acquire: a fact that is no surprise to them given that death penalty opponents have vigorously lobbied drug manufacturers to make this drug entirely unavailable for use in American executions. But Plaintiffs argue that it must be possible to obtain pentobarbital in some form because a few states, like Georgia, have found compounding pharmacies that agree to provide pentobarbital on condition of strict anonymity. Accordingly, trying to unmask the GDC’s source for this drug, Plaintiffs served the GDC with the non-party subpoena that is at issue in this appeal. The subpoena directs the GDC to appear at a Rule 30(b)(6) deposition and to produce documents concerning the feasibility of a one-drug lethal injection protocol using pentobarbital, including specific details about the GDC’s source and manner of acquiring pentobarbital.

The GDC filed a motion to quash the subpoena in the Northern District of Georgia, arguing that the information sought in the subpoena was irrelevant to the claims asserted in the underlying § 1983 litigation, that it was protected from disclosure by Georgia’s Lethal Injection Secrecy Act and other privileges, and that disclosure would impose an undue burden on the State. The motion was referred to a magistrate judge, who granted the motion to quash. In his written order on the motion, the magistrate judge relied heavily on the Lethal Injection Secrecy Act, which precludes the disclosure of the "identifying information" of any person or entity that participates in a Georgia execution or that supplies the drugs used by the State in executions. See O.C.G.A. § 42-5-36(d).

Plaintiffs filed objections to the magistrate judge’s ruling, arguing that the information sought by the subpoena was not privileged. After reviewing those objections, the district court accepted and adopted the magistrate judge’s decision to quash the subpoena. First, the district court determined that the "clearly erroneous" or "contrary to law" standard applied to its review of the magistrate judge’s ruling because the motion to quash was a non-dispositive pretrial matter. The district court then concluded that the magistrate judge’s ruling was neither clearly erroneous nor contrary to law.

Plaintiffs appeal, arguing that (1) the district court applied the wrong standard of review to the magistrate judge’s ruling and (2) the motion to quash should have been denied on the merits.

STANDARD OF REVIEW

We review a trial court’s ruling on a motion to quash a subpoena "only for an abuse of discretion." In re Hubbard , 803 F.3d 1298, 1307 (11th Cir. 2015) (citing Ariel v. Jones , 693 F.2d 1058, 1060 (11th Cir. 1982) ). Thus, we will leave the district court’s ruling on the motion "undisturbed" unless the district court has "made a clear error of judgment, or has applied the wrong legal standard." Ameritas Variable Life Ins. Co. v. Roach , 411 F.3d 1328, 1330 (11th Cir. 2005) ; see also SunAmerica Corp. v. Sun Life Assurance Co. of Canada , 77 F.3d 1325, 1333 (11th Cir. 1996) (noting that an abuse of discretion occurs when the district court makes "a clear error of judgment" or applies "an incorrect legal standard" (internal quotation marks omitted)).

DISCUSSION

I. The District Court Applied The Correct Standard Of Review To The Magistrate Judge’s Ruling On The Motion To Quash

As noted above, the district court reviewed the magistrate judge’s ruling on the motion to quash under the clearly erroneous or contrary-to-law standard. According to Plaintiffs, the district court should have reviewed the magistrate judge’s ruling de novo, and its failure to do so requires reversal under the Federal Magistrate’s Act, 28 U.S.C. § 636, and Rule 72 of the Federal Rules of Civil Procedure.

The standard of review the district court was required to apply depends on whether we characterize the GDC’s motion to quash as a dispositive or a non-dispositive matter. See 28 U.S.C. § 636(b)(1). Pursuant to the Federal Magistrate’s Act, a district court reviews a magistrate judge’s ruling on non-dispositive matters under the clearly-erroneous or contrary-to-law standard. Id. § 636(b)(1)(A) ; see also Fed. R. Civ. P. 72(a) ("When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide ... [t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law."). But if the matter is dispositive, the district court must review any objected-to portion of the magistrate judge’s ruling de novo. 28 U.S.C. § 636(b)(1).

The Federal...