Price v. Commissioner, Dept. Of Corrections

• Decision Date: 10 April 2019
• Docket Number: No. 19-11268,19-11268
• Parties: Christopher Lee PRICE, Plaintiff - Appellant, v. COMMISSIONER, Alabama DEPARTMENT OF CORRECTIONS, Warden, Holman Correctional Facility, Defendants - Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

920 F.3d 1317

Christopher Lee PRICE, Plaintiff - Appellant,

v.COMMISSIONER, Alabama DEPARTMENT OF CORRECTIONS, Warden, Holman Correctional Facility, Defendants - Appellees.

No. 19-11268

United States Court of Appeals, Eleventh Circuit.

April 10, 2019

Jonathan R. Ference-Burke, Ropes & Gray, LLP, WASHINGTON, DC, Aaron Katz, Ropes & Gray, LLP, BOSTON, MA, for Plaintiff-Appellant.

Lauren Ashley Simpson, Beth Jackson Hughes, Henry M. Johnson, Alabama Attorney General's Office, MONTGOMERY, AL, for Defendants-Appellees.

Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

Christopher Lee Price, an Alabama prisoner sentenced to death for killing a man during the commission of a robbery, has moved this Court for an emergency stay of his execution, which is scheduled to take place on April 11, 2019, at 6:00 p.m. Central Standard Time at the Holman Correctional Facility ("Holman"). Price also appeals the district court’s order denying his motion for preliminary injunction and its order denying his renewed motion for preliminary injunction. Included within those orders is the district court’s denial of Price’s Cross-Motion for Summary Judgment.¹ After careful consideration, we affirm the district court’s denial of Price’s Cross-Motion for Summary Judgment as well as its denial of Price’s original and renewed motions for preliminary injunction. We also deny Price’s motion for a stay of execution because he cannot show a substantial likelihood of success on his petition.

I. Background

Price was convicted of capital murder for killing William Lynn during the commission of a robbery, and Price was subsequently sentenced to death. See Price v. State , 725 So.2d 1003, 1011 (Ala. Crim. App. 1997), aff'd sub nom. Ex parte Price , 725 So.2d 1063 (Ala. 1998). Price filed a direct appeal of both his conviction and death sentence, but both were affirmed. See Price , 725 So.2d at 1062, aff’d , 725 So.2d 1063 (Ala. 1998). Price’s conviction and sentence became final in May 1999 after the Supreme Court denied his petition for writ of certiorari. See Price v. Alabama , 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999).

Price then filed a state post-conviction Rule 32 petition, but the petition was denied, and the Court of Criminal Appeals of Alabama affirmed. See Price v. State , 880 So.2d 502 (Ala. Crim. App. 2003). The Alabama Supreme Court denied certiorari review. Ex parte Price , 976 So.2d 1057 (Ala. 2006).

Later, Price filed a petition for writ of habeas corpus in the Northern District of Alabama. The district court issued an opinion denying the petition with prejudice and entering judgment against Price. We affirmed that judgment. See Price v. Allen , 679 F.3d 1315, 1319-20 (11th Cir. 2012) (per curiam). The Supreme Court also denied Price’s petition for writ of certiorari. Price v. Thomas , 568 U.S. 1212, 133 S.Ct. 1493, 185 L.Ed.2d 548 (2013).

Price filed a successive state post-conviction Rule 32 petition in 2017, arguing that his death sentence was unconstitutional under Hurst v. Florida , ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). That petition was also denied, and the Court of Criminal Appeals of Alabama affirmed. Price v. State , No. CR-16-0785, 2017 WL 10923867 (Ala. Crim. App. Aug. 4, 2017), reh'g denied (Sept. 8, 2017). The Alabama Supreme Court denied certiorari.

Following his direct criminal appeals and after the State moved the Alabama Supreme Court to set an execution date, Price brought a civil lawsuit under 42 U.S.C. § 1983 alleging that the Alabama Department of Corrections’s ("ADOC") use of midazolam in its three-drug lethal-injection protocol violates the Eighth Amendment’s ban on cruel and unusual punishment because it is not effective in rendering an inmate insensate during execution (the "first § 1983 action"). The district court held a bench trial on Price’s § 1983 claim. But the district court bifurcated the trial, addressing only whether Price could meet his burden of showing that his chosen alternative drug—pentobarbital—was available to the ADOC. The district court found in favor of the ADOC and against Price. It concluded that Price had failed to meet his burden of showing that pentobarbital was a feasible and available drug for use by the ADOC.

Price appealed and, on September 18, 2018, we affirmed. Price v. Comm'r, Ala. Dep't of Corr. , 752 F. App'x 701 (11th Cir. 2018). Price recently filed a petition for writ of certiorari with the Supreme Court of the United States. That petition is currently pending.

II. Facts Relevant to this Appeal

While the appeal of Price’s first § 1983 action was pending before this Court, the Alabama legislature amended the State’s execution statute to add nitrogen hypoxia

as an approved method of execution. The amendment became effective on June 1, 2018. See Ala. Code § 15-18-82.1. The statute reads, in relevant part, "A death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution or nitrogen hypoxia

." Ala. Code § 15-18-82.1(a). The statute also provides that the election of death by nitrogen hypoxia is waived unless it is personally made by the inmate in writing and delivered to the warden within thirty days after the certificate of judgment pursuant to a decision by the Alabama Supreme Court affirming the sentence of death. Ala. Code § 15-18-82.1(b)(2). If a judgment was issued before June 1, 2018, as was the case with Price, the election must have been made and delivered to the warden within thirty days of June 1, 2018. See Id.

On January 11, 2019, the State moved the Alabama Supreme Court to set an execution date for Price. The Alabama Supreme Court granted the motion on March 1, 2019, ordering that Price be executed on April 11, 2019, by lethal injection.

In the meantime, on January 27, 2019, Price wrote a letter to the warden of Holman asking that he be executed by nitrogen hypoxia

.² The warden responded by notifying Price that his request was past the thirty-day deadline set forth in the statute. Nevertheless, she further noted that she did not have the authority to grant, deny, or reject the request, and she indicated that any further consideration of the matter needed to go through Price’s attorney to the Attorney General’s Office. Price’s attorney then reached out to the Attorney General’s Office and reiterated Price’s desire to "opt in to the nitrogen hypoxia protocol." Assistant Attorney General Henry Johnson denied the request, citing the thirty-day period to opt into the protocol.

On February 8, 2019, (approximately one month after the State sought an execution date), Price filed a civil complaint against the Commissioner of the ADOC and others. The new complaint set forth a § 1983 claim in which Price realleged many of the claims raised in his previous § 1983 action concerning the three-drug lethal-injection protocol (the "second § 1983 action"). For example, Price claims that the use of midazolam as the first drug in its three-drug lethal-injection protocol violates the Eighth Amendment’s ban on cruel and unusual punishment. The complaint in the second § 1983 action also alleges that the State violated Price’s Fourteenth Amendment right to equal protection by refusing to allow him to elect nitrogen hypoxia

as his method of execution. With respect to that claim, Price contended that the State entered into "secret agreements" with many death row inmates allowing them to elect nitrogen hypoxia but would not allow him to do so outside of the 30-day opt-in period.³

III. Discussion

We review de novo an order on summary judgment. Smith v. Owens , 848 F.3d 975, 978 (11th Cir. 2017). As for the district court’s denial of Price’s motion for stay of execution, we review that for abuse of discretion. Brooks v. Warden , 810 F.3d 812, 818 (11th Cir. 2016). With respect to the district court’s factual findings, we review those for clear error. Glossip v. Gross , ––– U.S. ––––, 135 S.Ct. 2726, 2739, 192 L.Ed.2d 761 (2015). Under this standard, we may not reverse "simply because we are convinced that we would have decided the case differently." Id. (cleaned up).

Finally, we may grant Price’s motion for stay of execution filed in this Court only if Price 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." Arthur v. Comm'r, Ala. Dep't of Corr. , 840 F.3d 1268, 1321 (11th Cir. 2016) (quoting Brooks v. Warden , 810 F.3d 812, 818 (11th Cir. 2016) (emphases in original)), abrogated on other grounds by Bucklew v. Precythe , ––– U.S. ––––, 139 S.Ct. 1112, 1127–29, ––– L.Ed.2d –––– (2019). The "first and most important question" regarding a stay of execution is whether the petitioner is substantially likely to succeed on the merits of his claims. Jones v. Comm’r. Ga. Dep’t of Corr. , 811 F.3d 1288, 1292 (11th Cir. 2016).

After careful consideration, we conclude that the district court did not err when it denied Price’s Cross-Motion for Summary Judgment, although our basis for affirmance differs from the grounds set forth by the district court. We further find that the district court did not abuse its discretion when it denied Price’s initial and renewed motions for preliminary injunction in which he sought a stay of execution. Finally, we deny Price’s motion for stay of execution because he has not satisfied the requirements for such a stay.

We now examine each of Price’s claims in turn.

A. Fourteenth Amendment Equal Protection Claim

Price contends that the State violated his Fourteenth Amendment right to equal protection by not permitting him to elect nitrogen hypoxia

as a method of execution. To prevail on his equal-protection claim, Price must first show that "the State will treat him disparately from other similarly situated persons." Arthur v....