Smith v. Dunn

Decision Date08 February 2021
Docket NumberCIVIL CASE NO. 2:19-cv-927-ECM (WO)
PartiesWILLIE B. SMITH, III, Plaintiff, v. JEFFERSON DUNN, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

Plaintiff Willie B. Smith, III ("Smith") is an Alabama death row inmate in the custody of the Alabama Department of Corrections ("ADOC"). On November 25, 2019, Smith filed a complaint pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act against the Commissioner of ADOC and the Warden of Holman Correctional Facility ("the Defendants") in their official capacities. (Doc. 1). The Defendants moved to dismiss the complaint for failure to state a claim upon which relief may be granted. (Doc. 10). The motion was fully briefed and orally argued to the Court. (Docs. 14, 15, 19, 20, and 27). On December 1, 2020, the Alabama Supreme Court set the Plaintiff's execution date for February 11, 2021. (Doc. 17).

The Court granted the Defendants' motion to dismiss, dismissed the complaint without prejudice, and entered final judgment on December 14, 2020. (Docs. 25 and 26). Thereafter, the Plaintiff filed a motion to vacate the judgment, (doc. 28), and a motion for leave to file an amended complaint, (doc. 32). On January 29, 2021, the Court granted the motions to vacate and to amend pursuant to Fed. R. Civ. P. 59(e) and 15 respectively. (Doc. 35). The Plaintiff filed the operative complaint on the same day. (Doc. 36).

Smith brings two causes of action against the Defendants, claiming: (1) the Defendants violated his statutory rights under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., ("ADA"); and (2) Alabama's three-drug, lethal injection protocol method of execution violates his right to be free from cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. (Id.).

Now pending before the Court is the Defendants' motion to dismiss the amended complaint (hereinafter "Complaint") for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 37). The motion is fully briefed and ripe for resolution, and the Court heard oral argument on the motion on February 8, 2021. For the following reasons, the Defendants' motion to dismiss is due to be GRANTED in part and DENIED in part.


At this stage of the litigation, the Court accepts the following well-pled facts as true.

A. The Plaintiff's History

Smith alleges that he is a qualified individual with a disability for the purposes of the ADA. (Doc. 36 at 6, para. 31). He claims he has an intellectual disability that causes him to "suffer[] from extreme deficits in encoding new information such that the information would need to be repeated and rehearsed many times for him to encode thatsame information on a level comparable to his peers." (Id. at 6, para. 29).1 The Complaint adds that "[n]europsychological testing place Mr. Smith in the moderately to severely impaired ranges in the ability to process and recall new information." (Id. at 7, para. 35). Smith alleges that he reads at an eighth-grade reading level, at most. (Id.).

Smith has been in the custody of the ADOC since 1992, and he is currently in custody at William C. Holman Correctional Facility ("Holman"). (Id. at 1, para. 1; 7, para. 33). His Complaint reads, "[a]t all times relevant, the State of Alabama was aware and acknowledged Mr. Smith's WAIS III full scale IQ score was 72. Likewise, the State was aware that Mr. Smith's Stanford-Binet 5th ed. full scale IQ score was 64." (Id. at 7, para. 33). Moreover, Smith alleges that the ADOC's intake records from 1992 show that the intake officer noted Smith's comprehension issues: "[t]he intake officer recorded that even after explaining the purpose and subjects of the intake interview that he did not believe Mr. Smith understood." (Id. at 7, para. 34).

B. Alabama's Method of Execution and the Election Form

Lethal injection is the default method of execution in the State of Alabama. ALA. CODE § 15-18-82.1(a). Alabama utilizes a three-drug lethal injection protocol. (Doc. 36 at 9, para. 42). The protocol calls for sequential injections of midazolam, rocuronium bromide or vercuronium bromide, and potassium chloride in varying dosages. (Id. at 9, para. 44). The State began using midazolam in 2014 when it substituted midazolam for another drug in the three-drug protocol. (Id. at 9, para. 45).

On March 22, 2018, the Governor signed into law Senate Bill 272, which added nitrogen hypoxia as an alternative method of execution in Alabama.2 (Id. at 3, para. 13); see also ALA. CODE § 15-18-82.1(b)(2). The statute permits a death row inmate one opportunity to elect execution by nitrogen hypoxia. (Id. at 3, para. 16). Otherwise, the inmate waives the right to elect the alternative method, (id. at 4, para. 17), and will be executed by lethal injection. (Id. at 4, para. 15). The law became effective on June 1, 2018. (Id. at 4, para. 18). Pursuant to the statute, Smith had 30 days, from June 1, 2018 until June 30, 2018, to elect nitrogen hypoxia as his method of execution. ALA. CODE § 15-18-82.1(b)(2).

On June 26, 2018, attorneys from the Federal Defenders met with their clients at Holman. (Doc. 36 at 4, para. 20). The Federal Defenders notified their clients "of the change in the law, answer[ed] questions regarding nitrogen hypoxia, and provide[d] them with an election form . . . ." (Id. at 4, para. 19). Smith was not represented by the Federal Defenders at that time. (Id. at 4, para. 20).

The ADOC "adopted, for its own use and distribution" the Federal Defenders' Election Form.3 (Id. at 4, para. 21). At some point after June 26, 2018, at the Warden's direction, ADOC staff distributed the Election Forms with envelopes to all prisoners on death row. ( 4-5, paras. 21-23). Prisoners were to sign and date the form and deliver it in the envelope to the Warden if they elected execution by nitrogen hypoxia. (Id. at 4,para. 22). Smith did not submit the Election Form electing execution by nitrogen hypoxia within the prescribed period in 2018. (Id. at 7, para. 36).

Smith alleges that the provision of the Election Form by the ADOC constituted implementation of a "policy, protocol, and program" for the purposes of the ADA. (Id. at 4, para. 22). Smith further alleges that the Election Form "scores a 15.6 grade level on the Flesch-Kincaid Readability Scale. This level is that of an academic paper[] and considered college level reading." (Id. at 7, para. 35). Smith alleges that the Defendants did not provide reasonable accommodations to individuals with known disabilities and violated his rights under the ADA. (Id. at 5, para. 24; 12, para. 64). On December 14, 2020, Smith's attorneys requested that the ADOC make an exception, as a reasonable accommodation, and allow Smith to opt-in to the nitrogen hypoxia method of execution outside of the statutorily prescribed time period, but his request was denied. (Id. at 12, para. 66).


The Court has original subject matter jurisdiction of this case pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), 2201, and 42 U.S.C. § 12133.

Personal jurisdiction and venue are uncontested, and the Court concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.


A Rule 12(b)(6) motion to dismiss tests the sufficiency of the Complaint against the legal standard set forth in Rule 8: "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim torelief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In ruling on a motion to dismiss for failure to state a claim on which relief can be granted, the court must accept well-pled facts as true, but the court is not required to accept a plaintiff's legal conclusions. Id. at 664.

A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See id. at 679 (explaining, "only a complaint that states a plausible claim for relief survives a motion to dismiss"). "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. Factual allegations in a complaint need not be detailed but "must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal citations omitted). Conclusory allegations that are merely "conceivable" and fail to rise "above the speculative level" are insufficient to meet the plausibility standard. Id. This pleading standard "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Indeed, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). It is the Plaintiff's responsibility to allege sufficient facts to support his claims. Twombly, 550 U.S. at 555.


In Count One, Smith claims that he is intellectually disabled, rendering him "unable to personally make the election in the manner specified in Senate Bill 272." (Doc. 36 at 12, para. 63). Smith asserts that "Defendants' failure to provide reasonable accommodations for [him in light of his disability] violates his rights under the ADA." (Id. at 12, para. 64). In Count Two, Smith...

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