Rutherford v. Crosby

• Decision Date: 30 January 2006
• Docket Number: No. 06-10783.,06-10783.
• Citation: 438 F.3d 1087
• Parties: Arthur D. RUTHERFORD, Plaintiff-Appellant, v. James V. CROSBY, Jr., Charlie Crist, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1087

438 F.3d 1087

Arthur D. RUTHERFORD, Plaintiff-Appellant, v. James V. CROSBY, Jr., Charlie Crist, Defendants-Appellees.

No. 06-10783.

United States Court of Appeals, Eleventh Circuit.

January 30, 2006.

Linda McDermott, McClain & McDermott, P.A., Wilton Manors, FL, for Rutherford.

Appeal from the United States District Court for the Northern District of Florida.

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

This is the appeal of Arthur Dennis Rutherford, a Florida death row inmate, from the judgment of the district court dismissing his 42 U.S.C. § 1983 action challenging the details of that state's lethal injection procedures. (A copy of the district court's order is attached as an appendix to this opinion.) The district court stated two independently adequate grounds for dismissal.

I.

The first ground on which the district court dismissed Rutherford's § 1983 complaint is that under our prior precedent a claim attacking the general procedures or protocols a state uses to carry out executions by lethal injection must be brought in a habeas corpus proceeding, and Rutherford had not obtained from this Court an order permitting him to file a second or successive petition. See 28 U.S.C. § 2244(b). That decision of the district court is correct as a matter of circuit law. See Hill v. Crosby, 437 F.3d 1084, No. 06-10621, 2006 WL 163607 at *1 (11th Cir. Jan. 24, 2006), cert. granted, No. 05-8794, ___ U.S. ___, 126 S.Ct. 1189, ___ L.Ed.2d ___, 2006 WL 171583 (Jan. 25, 2006); Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir.2004).

Of course, circuit law certainly can be changed by a decision of the Supreme Court. See Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir.1997); Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996); Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir.1992). A grant of certiorari, however, is not a decision and does not affect our obligation, or the obligation of district courts in this circuit, to follow prior decisions of this Court. See Robinson, 358 F.3d at 1284 ("[T]he grant of certiorari alone is not enough to change the law of this circuit or to justify this Court in granting a stay of execution on the possibility that the Supreme Court may overturn circuit law."); Ritter v. Thigpen, 828 F.2d 662, 665-66 (11th Cir.1987) ("A grant of certiorari does not constitute new law."); Mulligan v. Kemp, 818 F.2d 746, 747-48 (11th Cir.1987) (The grant of certiorari does not constitute a "decided case upon which to pass a new law claim."); Thomas v. Wainwright, 788 F.2d 684, 689 (11th Cir.1986) ("[A]ny implications to be drawn [from a grant of certiorari in another case] may be discerned by application to the Supreme Court.") (citation omitted); Jones v. Smith, 786 F.2d 1011, 1012 (11th Cir.1986) (same); Bowden v. Kemp, 774 F.2d 1494, 1495 (11th Cir. 1985) (same). The district court was correct to dismiss the § 1983 complaint in this case on the basis of our decisions in the Hill and Robinson cases. As required by our prior panel precedent rule, we affirm the district court's dismissal on that basis.

II.

The district court also dismissed the complaint on the alternative basis that even if Rutherford's complaint states a cognizable claim under § 1983, he had delayed unnecessarily in bringing his claim about Florida's lethal injection procedures and thus was not entitled to injunctive relief in a last-minute § 1983 action.¹ We review the dismissal on that basis only for an abuse of discretion. See Kidder, Peabody & Co. v. Brandt, 131 F.3d 1001, 1003 (11th Cir.1997) ("We review the district court's denial of injunctive relief under an abuse of discretion standard."); Sofarelli v. Pinellas County, 931 F.2d 718, 724 (11th Cir.1991) ("The issuance or denial of injunctive relief [in a § 1983 lawsuit] is within the discretion of the district court and will not be disturbed absent an abuse of discretion or action contrary to equity."). The standard of review is not critical, however, because we would reach the same conclusion even on de novo review.

The district court concluded that Rutherford's unreasonable and unexcused delay in waiting until the eleventh hour to file the claim in a § 1983 lawsuit disentitled him from equitable relief, which is all the relief he was seeking. The law the district court applied in this part of its decision is discussed in Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). There, the Supreme Court explained why its decision in that case would not "open the floodgates to all manner of method-of-execution challenges, as well as last minute stay requests." See Nelson, 541 U.S. at 649, 124 S.Ct. at 2125. In that explanation, the Court discussed its earlier decision in Gomez v. United States Dist. Court for N. Dist. of Cal., 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam), which had vacated a stay of execution entered by the federal appeals court in a § 1983 lawsuit challenging the method of execution, even though the Court recognized that the claim may have been cognizable under § 1983. The reason the Supreme Court had concluded that the death row inmate was not entitled to a stay of execution in Gomez is that he had "waited until the 11th hour to file his challenge despite the fact that California's method of execution had been in place for years." Nelson, 541 U.S. at 649, 124 S.Ct. at 2126.

In reaching that conclusion in Gomez the Supreme Court emphasized the State's strong interest in proceeding with its judgment and how a court may consider the last-minute nature of a stay application:

Whether his claim is framed as a habeas petition or as a § 1983 action, Harris seeks an equitable remedy. Equity must take into consideration the State's strong interest in proceeding with its judgment and Harris' obvious attempt at manipulation. This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.

Gomez, 503 U.S. at 653-54, 112 S.Ct. at 1653 (emphasis added) (internal citations omitted). The Supreme Court reiterated those points in its Nelson opinion, quoting with approval the key language from the Gomez opinion. Nelson, 541 U.S. at 649, 124 S.Ct. at 2126. The Court went beyond what it had said earlier and instructed lower courts that:

A stay is an equitable remedy, and "[e]quity must take into consideration the State's strong interest in proceeding with its judgment and ... attempt[s] at manipulation." Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.

Id. at 649-50, 124 S.Ct. at 2126 (quoting Gomez, 503 U.S. at 654, 112 S.Ct. at 1653) (internal citations and punctuation omitted) (alterations in original).²

The Supreme Court's teachings in Gomez and Nelson that lower courts should apply equitable principles in this kind of § 1983 case have been heeded by a number of courts faced with eleventh hour efforts of death row inmates to use § 1983 lawsuits to challenge lethal injection procedures and protocols. More specifically, as the district court did here, other circuits have concluded that even if a challenge to the three-chemical lethal injection procedure states a cognizable claim under § 1983, the petitioner is not entitled to a stay and/or injunctive relief if he delays until just before the scheduled execution the filing of a § 1983 action for equitable relief. White v. Johnson, 429 F.3d 572, 573-74 (5th Cir.2005) (affirming the dismissal of White's § 1983 action for injunctive relief and emphasizing that White delayed until the eleventh hour to file his challenge to the state's lethal injection with the three chemicals in issue),³ petition for stay of execution denied sub nom., White v. Livingston, ___ U.S. ___, 126 S.Ct. 601, ___ L.Ed.2d ___ (2005); Cooper v. Rimmer, 379 F.3d 1029, 1031-33 (9th Cir.2004) (affirming the denial of last-minute equitable relief in § 1983 action challenging state's three-chemical protocol for execution by lethal injection); Harris v. Johnson, 376 F.3d 414, 416-18 (5th Cir. 2004) (concluding that petitioner was not entitled to equitable relief in § 1983 action challenging the state's three-chemical protocol for execution by lethal injection where he had unnecessarily delayed in bringing his claim); see also Bieghler v. Donahue, No. 1:06-cv-00136-LJM-TAB (S.D.Ind. Jan. 26, 2006) (relying on Nelson and denying TRO and preliminary injunction in plaintiff's last-minute § 1983 action challenging the state's three-chemical method of lethal injection and dismissing the § 1983 action), stay of execution granted, ___ Fed.Appx. ___, No. 06-1300, 2006 WL 229027 (7th Cir. Jan. 26, 2006) (unpublished order), stay of execution vacated, No. 05A684, ___ U.S. ___, ___ S.Ct. ___ ___ L.Ed.2d ___, 2006 WL 189970 (Jan. 27, 2006).

In each of those cited decisions the petitioner raised the same three-chemical challenge to the means of lethal injection that Rutherford has raised in this case. Of course, where petitioner's scheduled execution is imminent, there is no practical difference between denying a stay on equitable grounds and denying injunctive relief on equitable grounds in a § 1983 lawsuit.

The district court was fully justified in applying the Gomez/Nelson equitable principles to bar Rutherford's request for an injunction against his execution by lethal injection....