Price v. Dunn

• Decision Date: 05 April 2019
• Docket Number: CIVIL ACTION: 1:19-00057-KD-MU
• Citation: 385 F.Supp.3d 1215
• Parties: Christopher Lee PRICE, Plaintiff, v. Jefferson S. DUNN, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

385 F.Supp.3d 1215

Christopher Lee PRICE, Plaintiff,
v.
Jefferson S. DUNN, et al., Defendants.

CIVIL ACTION: 1:19-00057-KD-MU

United States District Court, S.D. Alabama, Southern Division.

Signed April 5, 2019

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David Michael Coriell, Pro Hac Vice, Patrick J. Dolan, Pro Hac Vice, Ropes & Gray, Aaron M. Katz, Pro Hac Vice, Boston, MA, Jonathan R. Ference-Burke, Pro Hac Vice, Ropes & Gray LLP, Washington, DC, for Plaintiff.

Lauren Ashley Simpson Beth Jackson Hughes, Edmund Gerard LaCour, Jr., Henry Mitchell Johnson, Office of the Attorney General State of Alabama, Montgomery, AL, for Defendant.

ORDER

KRISTI K. DuBOSE, UNITED STATES DISTRICT JUDGE

This matter came before the Court on April 4, 2019 for a hearing regarding Plaintiff's Emergency Motion for Preliminary Injunction seeking a Stay of Execution (Doc. 28); Defendants' Motion for Summary Judgment (Doc. 19), Plaintiff's Response/Cross-Motion for Summary Judgment (Doc. 29) and Defendants' Reply (Doc. 31). The Court addresses the Motion to Stay by reviewing the merits of the parties' cross motions for summary judgment and the evidence submitted in support. Upon consideration, the Court finds that Price's motion for summary judgment and his motion to stay are DENIED.

I. Background and Undisputed Facts

This case concerns the execution protocol for a State of Alabama death row inmate at the Holman Correctional Facility (Holman). Specifically, inmate Plaintiff Christopher Lee Price (Price)'s execution date is set for April 11, 2019. (Doc. 19-5). Price is presently scheduled to be executed via the three (3) drug midazolam hydrochloride based lethal injection protocol. Price seeks execution via a nitrogen hypoxia protocol instead. Price alleges that by refusing to execute him via nitrogen, the State of Alabama is violating his rights under the Eighth Amendment and the equal protection clause of the Fourteenth Amendment.

A. Background

Price has been on death row at Holman since 1993, following a capital murder conviction

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for the 1991 murder of William Lynn. As summarized by the Eleventh Circuit:

Price was indicted for intentionally causing Bill Lynn's death during a robbery in the first degree. See Price v. State , 725 So.2d 1003, 1062 (Ala. Crim. App. 1997), aff'd sub nom. Ex parte Price , 725 So.2d 1063 (Ala. 1998). Following a jury trial, Price was convicted and sentenced to death for Lynn's murder. Id. at 1011. Though Price filed a direct appeal of his conviction and death sentence, both were affirmed. See id. 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 to the Supreme Court of Alabama. 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 the dismissal. 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. This Court affirmed that judgment. See Price v. Allen , 679 F.3d 1315, 1319–20, 1327 (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 v. Commissioner, Ala. Dept. of Corr., 752 Fed.Appx. 701, 703 (11th Cir. 2018).

In 1995, Alabama executed inmates by electrocution. That changed on July 1, 2002, when the Alabama legislature adopted lethal injection as the state's preferred form of execution. Arthur v. Commissioner, Ala. Dept. of Corr., 840 F.3d 1268, 1274 (11th Cir. 2016) ; Brooks v. Warden, 810 F.3d 812, 823 (11th Cir. 2016). At that time, the Alabama Department of Corrections ("ADOC") began using a three (3) drug lethal injection protocol as its default method of execution (instead of electrocution, as death row inmates from that point forward had to affirmatively elect electrocution). Id. From 2002-April 2011, the first drug was sodium thiopental, but from April 2011 through September 10, 2014, Alabama changed the protocol to use penobarbital as the first drug. Id. However, due to pentobarbital's increasing unavailability, starting on September 11, 2014, and continuing to the present, the ADOC substituted midazolam hydrochloride for pentobarbital as the first drug. Id.

On September 11, 2014, the State of Alabama moved for the Alabama Supreme Court to set an execution date for Price. This prompted Price's October 8, 2014 action in this Court -- his first Section 1983 case -- Price v. Thomas et al., CV 1:14-00472-KD-C (S.D. Ala.), challenging the constitutionality of the ADOC's three (3) drug lethal injection protocol as unconstitutionally cruel and unusual. See also Price v. Dunn, 2017 WL 1013302 (S.D. Ala. Mar. 15, 2017). In March 2015, the State asked the Alabama Supreme Court to hold the execution motion in abeyance pending resolution of Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015), a challenge to a three (3) drug midazolam protocol functionally identical to Alabama's. The court granted the motion.

Later in 2015, the Supreme Court held in part that the inmate petitioners in Glossip had failed to establish an Eighth Amendment violation because they failed to identify an available alternative method

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of execution that entailed a lesser risk of pain. Following Glossip, the State moved to dismiss Price's Section 1983 complaint, but the Court allowed Price to amend his complaint. As an alternative to the midazolam protocol, Price proposed the use of compounded pentobarbital or sodium thiopental. The parties engaged in discovery, culminating in a non-jury trial in December 2016 on the sole issue of the availability of an alternative method of execution to the State's midazolam included execution protocol On March 15, 2017, this Court entered judgment in favor of the State, finding that Price failed to prove the existence of a substantially safer alternative available to the ADOC. (Doc. 107 -- CV 1:14-00472-KD-C).

On September 19, 2018, after holding oral argument, the Eleventh Circuit affirmed this Court's decision and denied rehearing on December 26, 2018. The Eleventh Circuit's mandate issued January 3, 2019. Price is now pursuing certiorari review before the Supreme Court.

On March 22, 2018, the ADOC's injection protocol changed again. Through Act 2018-353, nitrogen hypoxia became a statutorily approved method of execution in the State of Alabama (death row inmates could elect for this protocol, as specified by the statute, instead of execution via the midazolam three (3) drug protocol).

On February 8, 2019, Price filed this Section 1983 claim to enjoin the State from executing him via the midazolam three (3) drug protocol. (Doc. 1). Price alleges three (3) causes of action against the Defendants (the State): 1) violation of the Eighth Amendment's ban on cruel and unusual punishment (first cause of action); 2) violation of his Fourteenth Amendment equal protection rights for failure to consistently comply with execution protocol (second cause of action)¹ ; and 3) violation of his Fourteenth Amendment equal protection rights due to the State's refusal to allow him to elect nitrogen hypoxia (third cause of action). (Id. ) As relief, Price seeks that this Court:

.... Enjoin Defendants from executing Mr. Price using the lethal injection protocol that the State asserts that it adopted on September 10, 2014, as well as the inadequate anesthesia and execution procedures that violate Mr. Price's right to equal protection under the Fourteenth Amendment and his right to be free from cruel and usual punishment under the Eighth Amendment.

.... Order Defendants to disclose to Mr. Price and his counsel the precise lethal injection protocol that will be used during Mr. Price's execution at least 90 days in advance of such execution, including a detailed description of the "consciousness checks" that will be utilized and the qualifications and training of the personnel designated to carry out such checks.

... Enter a declaratory judgment that Defendants' proposed execution protocol, inadequate anesthesia, and execution procedures violate Mr. Price's right to equal protection pursuant to the Fourteenth Amendment and.... right to be free from cruel and unusual punishment pursuant to the Eighth Amendment....

(Id. at 31-32). On March 1, 2019, the Alabama Supreme Court scheduled Price's execution for April 11, 2019. (Doc. 19-5).

B. Alabama Code § 15-18-82.1(b)(2)

The nitrogen hypoxia execution protocol became a statutorily approved method of execution in the State of Alabama in March 2018, with an effective date of June 1, 2018. The applicable statute, Section 15-18-82.1(b)(2) Ala. Code, provides, in relevant

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