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Grayson v. Warden, Commissioner

United States Court of Appeals, Eleventh Circuit

September 1, 2017

CAREY DALE GRAYSON, et al 2:12-cv-00316 Plaintiffs,
v.
WARDEN, COMMISSIONER, ALABAMA DOC, Defendants. DEMETRIUS FRAZIER, 2:13-cv-00781 Consol Plaintiff - Appellant,
v.
WARDEN, COMMISSIONER, ALABAMA DOC, Defendants - Appellees.ads
v.
WARDEN, COMMISSIONER, ALABAMA DOC, Defendants - Appellees. ROBIN D. MYERS, 2:14-cv-01029 Consol Plaintiff - Appellant,
v.
WARDEN, COMMISSIONER, ALABAMA DOC, Defendants - Appellees. GREGORY HUNT, 2:14-cv-01030 Consol Plaintiff - Appellant,
v.
WARDEN, COMMISSIONER, ALABAMA DOC, Defendants - Appellees.

         Appeal from the United States District Court for the Middle District of Alabama D.C. Docket Nos. 2:12-cv-00316-WKW-CSC, 2:13-cv-00781-WKW-CSC

          Before TJOFLAT, ROSENBAUM and JILL PRYOR, Circuit Judges.

          OFLAT, Circuit Judge.

         I.

         On July 1, 2002, the State of Alabama chose lethal injection, rather than electrocution, as its preferred method of implementing capital punishment.[1] The Alabama Department of Corrections ("ADOC") thereafter adopted a three-drug protocol to administer the injection.[2] The United States Supreme Court described an identical protocol, as implemented by the State of Kentucky, in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520 (2008):

The first drug, sodium thiopental . . ., is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. The second drug, pancuronium bromide . . ., is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs.

Id. at 44, 128 S.Ct. at 1527 (internal citations omitted).

         On April 26, 2011, Alabama substituted pentobarbital, "a short-acting barbiturate" sedative, [3] for sodium thiopental, as the first drug in its execution protocol. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011). Then, on September 10, 2014, the State substituted midazolam, a benzodiazepine sedative, [4]for pentobarbital. Brooks v. Warden, 810 F.3d 812, 816-17 (11th Cir. 2016). It also substituted rocuronium bromide for pancuronium bromide as the second drug. Id. at 817. Potassium chloride remained the third drug. Id.

         In the four cases at hand, the appellants, four death row prisoners awaiting execution, claim that if they are executed in accordance with the lethal injection protocol now in place, they will suffer "cruel and unusual punishment" in violation of the Eighth Amendment.[5] They seek an order under 42 U.S.C. § 1983 enjoining the ADOC[6] from executing them pursuant to that protocol.[7] In Glossip v. Gross, 135 S.Ct. 2726, 2737 (2015), the Supreme Court made clear that the "controlling opinion in Baze" set forth the two-pronged standard a plaintiff must satisfy "to succeed on an Eighth Amendment method-of-execution claim." The first prong requires the prisoner to demonstrate that the challenged method of execution presents "a 'substantial risk of serious harm.'" Id. (quoting Baze, 553 U.S. at 50, 128 S.Ct. at 1531). That is, the method must "present[] a risk that is 'sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.'" Id. (quoting Baze, 553 U.S. at 50, 128 S.Ct. at 1531). The second requires the prisoner to "identify an alternative that is 'feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.'" Id. (quoting Baze, 553 U.S. at 52, 128 S.Ct. at 1532). Showing "a slightly or marginally safer alternative" is insufficient to mount a successful challenge to a State's method of execution. Id. (quoting Baze, 553 U.S. at 51, 128 S.Ct. at 1531).[8]

         Appellants contend that the ADOC's current protocol presents a substantial risk of serious harm that comports with Baze's definition. They argue that the risk is substantial because midazolam, a sedative, is not an analgesic like sodium thiopental and pentobarbital and will consequently fail to create the sustained state of anesthesia necessary to enable them to withstand the intolerable pain that will be generated by subsequent injections of rocuronium bromide and potassium chloride. As required by Baze's second prong, Appellants have also proposed three alternative methods of execution involving single injections of either sodium thiopental, compounded pentobarbital, or a 500-milligram bolus[9] of midazolam.

         Before us for review is the District Court's order of October 31, 2016, granting the ADOC's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.[10] In its order, the Court concluded that Appellants had failed to present probative evidence creating "a genuine dispute of material fact as to [the existence of a feasible and readily implementable] alternative method of execution, an essential prong of the Baze/Glossip test for an Eighth Amendment method-of-execution claim." Since Appellants' proof failed to satisfy the alternative-method-of-execution requirement imposed by Baze, the Court dismissed Appellants' Eighth Amendment claims without addressing the other half of the Baze standard: whether the substitution of midazolam for pentobarbital as the first drug of the three-drug injection protocol created a "substantial risk of serious harm."

         Appellants ask that we vacate the judgment because the District Court, rather than determining whether the ADOC had satisfied its Rule 56 burden of showing that there was "no genuine dispute as to any material fact, " improperly assumed the role of the trier of fact and resolved the genuine factual disputes in the ADOC's favor.[11] The ADOC, in response, argues that the District Court did not err and, even if it had, the error is of no moment because the law-of-the-case doctrine bars Appellants' Eighth Amendment claims. If not, they argue the statute of limitations does so: they assert that the switch from pentobarbital to midazolam does not constitute a "substantial change" to the State's three-drug execution protocol; thus, the two-year limitations period passed years ago.

         After hearing from the parties in oral argument and considering their briefs, we conclude that genuine issues of material fact preclude summary judgment. We also conclude that Appellants' Eighth Amendment claims are not barred by the law-of-the-case doctrine. As to the ADOC's limitations argument, they did not raise it below and the District Court did not consider it; we thus cannot address it in the absence of a factual determination as to whether the substitution of midazolam for pentobarbital constitutes a substantial change to Alabama's execution protocol. We accordingly vacate the District Court's judgment and remand these cases for further proceedings.

         II.

         The operative complaints and answers in these cases are identical with respect to the Appellants' Eighth Amendment claim now before us. For convenience, we refer only to Demetrius Frazier's second amended complaint ("Frazier's Complaint" or "the Complaint").[12] Similarly, our references to the ADOC's motion to dismiss and answer correspond specifically to the documents the ADOC filed in response to Frazier's Complaint.

         Frazier's Complaint, filed on August 25, 2016, alleges-with respect to Baze's "substantial risk of serious harm" prong-that midazolam will fail to anesthetize Frazier and therefore subject him to the intolerable pain the administration of rocuronium bromide and potassium chloride will cause.[13] The Complaint alleges-with respect to Baze's requirement that a prisoner plead and prove the existence of an "alternative" method-of-execution significantly reducing a risk of severe pain-that "a single bolus of [compounded] pentobarbital . . . . is read[ily] available, and would entirely reduce the risk of pain associated with administering the paralytic and potassium chloride, because those drugs would not be used"; that sodium thiopental is available and "would cause death without need of a paralytic or potassium chloride";[14] that "a 500mg dose of midazolam will likely cause death in under an hour";[15] and that the ADOC "can obtain midazolam."

         In addition to this statement of Frazier's Eighth Amendment claim, the Complaint also includes facts its drafter apparently thought would be probative of his Eighth Amendment claim at trial, but that are unnecessary to establish an Eighth Amendment claim sufficient to withstand a motion to dismiss. These unnecessary assertions of fact include: that midazolam administered in a multi-drug protocol previously failed to anesthetize prisoners executed in Ohio, [16]Oklahoma, [17] and Arizona;[18] that "[n]umerous states have switched from a two or three-drug protocol to a one-drug protocol; that "[a] report issued by a bipartisan committee recommended that states discontinue using three-drug lethal injection cocktails and instead use a single large dosage of a barbiturate";[19] that "[s]tates including Texas, Colorado, Ohio, Georgia, Missouri, Mississippi, Oklahoma, South Dakota, and Pennsylvania have used or intend to use compounded pentobarbital for executions"; that "[s]ince January 1, 2014, nearly 40 executions have been carried out using a single bolus of pentobarbital, making it the most common method of execution in the United States";[20] and that the "Defendant's own expert endorses" the use of a single 500-milligram bolus of midazolam as a method of execution.[21]

         The drafter of the Complaint also apparently thought that portions of the record in Arthur v. Thomas, a Middle District of Alabama case that presented an Eighth Amendment claim practically identical to Frazier's, [22] would be supportive of Frazier's claim at trial. So, the drafter attached to the Complaint, as Exhibits A and B, the transcript of the evidentiary hearing the District Court held in Arthur on October 18 and 19, 2012. [23] Also attached, as Exhibit C, was the State of Alabama's September 11, 2014 motion requesting the Alabama Supreme Court to set a date for Frazier's execution. These exhibits are mentioned in the Complaint by letter, but the Complaint does not incorporate by reference any of their contents. The exhibits were entirely extraneous to Frazier's Eighth Amendment Claim. [24] Frazier did not cite them in opposing the ADOC's motion for summary judgment, and the District Court made no reference to them in granting the motion.[25]

         The ADOC moved to dismiss Frazier's complaint on September 8, 2015. See Consent to Judgment or in the Alternative, Motion to Dismiss at 1, Frazier v. Myers, No. 2:13-cv-781 (M.D. Ala. Sept. 8, 2015). The ADOC argued that in light of the Supreme Court's decision in Glossip and this Court's decision in Chavez v. Fla. SP Warden, [26] the District Court was required to dismiss Frazier's Complaint for failure to state a claim for relief:

As the Eleventh Circuit and now the Supreme Court have found that other litigants cannot show that a 500-milligram bolus of midazolam would allow an inmate to feel the effect of the other two drugs-a result that is equivalent to what was achieved when the first drug administered was pentobarbital-Frazier must allege some additional evidence to survive dismissal.

Id. at 10. [27] The ADOC observed that in Glossip, the "Supreme Court held that the fact-findings about the use of midazolam being constitutional were not clearly erroneous, " and, moreover, "noted that every lower court to have considered the question reached the same conclusion: midazolam is capable of rendering someone unconscious and, therefore, eliminates any substantial risk of severe pain that might be caused by administering the other drugs in a three-drug lethal-injection protocol."[28] Id. at 11.

         The ADOC further argued that Frazier's claim had been "time-barred for nearly eleven years" and was thus "due to be dismissed." Id. at 5. Noting that Alabama's two-year limitations period applied to Frazier's claim, it observed that the limitations period begins to accrue either when state review becomes final or when a state makes a substantial change to its execution protocol, whichever is later. Id. at 6. And since Frazier's case became final in 2000 and the State adopted lethal injection as its execution method in 2002, it argued that Frazier's case was time-barred unless a substantial change in its execution protocol was made. It then asserted that no such change was made: with respect to the substitution of midazolam for pentobarbital, the ADOC contended that "Frazier failed to plead any factual allegations or include any affidavits with his complaint that could plausibly show that the use of midazolam is a significant change from pentobarbital." Id. at 6-7. Further, it argued that because "the Supreme Court has rejected virtually identical claims about midazolam's effectiveness, " and because "the factual allegations rejected in Glossip contained much greater detail and specificity than the hypothesized, unsubstantiated allegations" in Frazier's complaint, Frazier could not claim that the substitution of midazolam constituted a substantial change "as a matter of law." Id. at 7. Thus, the ADOC argued that Frazier's claim became time-barred in 2004, two years after Alabama adopted lethal injection. Id. at 6.

         Assuming that the Complaint may have stated a plausible Eighth Amendment claim, the ADOC posited an alternative disposition: it would consent to the Court's entry of a judgment that "suspends the current lethal-injection protocol" and substitutes midazolam as the method of execution. Id. at 4. [29] "After an initial 500-milligram bolus of midazolam, the execution team [would] administer an additional 500-milligram dose of midazolam, if needed, until Frazier's sentence [was] carried out." Id. at 3. [30] This alternative disposition had a proviso: that the "Court order Frazier's counsel to procure a sworn assurance from Plaintiff that he is aware of the alternatives suggested in the latest complaint filed on his behalf, that he understands the implications of the complaint, and that he consents to be executed by a one-drug protocol using midazolam." Id. at 3.

         The District Court ordered Frazier to respond to the ADOC's pleading by September 25, 2015. Order at 1, Frazier v. Myers, No. 2:13-cv-781 (M.D. Ala. Sept. 11, 2015). Frazier did so on that day. See Opposition to Defendants' "Consent to Judgment" and Motion to Dismiss at 1, Frazier v. Myers, No. 2:13-cv-781 (M.D. Ala. Sept. 25, 2015). He requested that the Court "reject the ADOC's offer of a consent judgment, deny Defendants' motion to dismiss, and issue a scheduling order for motions, hearings and discovery, leading to a trial on the issue of whether Alabama's present execution protocol is unconstitutional." Id. at 2.

         On October 8, 2015, the District Court denied the ADOC's motion to dismiss, ordered the ADOC to answer Frazier's Complaint by October 22, 2015, declared that Appellants' cases would be referred to as the "Midazolam Litigation, " and scheduled a status conference in the Midazolam Litigation for November 4, 2015, to discuss whether the Court should consolidate the cases for discovery and the final hearing and to determine whether the issues the cases presented differed from those pending in Arthur that would be tried in January 2016. Order at 1-2, Frazier v. Myers, No. 2:13-cv-781 (M.D. Ala. Oct. 8, 2015). The ADOC answered the Complaint as ordered. The answer responded to the Complaint paragraph by paragraph and denied the material allegations of Frazier's Eighth Amendment claim, including the allegation that two of the drugs included in Frazier's proposed alternative method of execution, sodium thiopental and compounded pentobarbital, were available. The answer admitted that midazolam was available and stated that the "Defendants have agreed to provide Frazier with an execution utilizing a single drug, midazolam, as set forth in his complaint." The answer also asserted eighteen affirmative defenses, including that Frazier's Eighth Amendment claim "fail[ed] to state a claim for relief, " was "barred by sovereign immunity, " and was "barred by res judicata."[31]

         On November 5, 2015, following the status conference, the Court entered an order consolidating Appellants' cases. On November 20, 2015, the Court issued a "Final Scheduling Order, " scheduling the cases for trial before the Court on April 19-22, 2016; setting deadlines of February 5 and March 18, 2016 for "fact discovery" and "expert discovery, " respectively; and directing that dispositive motions be filed by March 25, 2016. On March 16, 2016, the Court granted the parties' joint motion to extend the deadline for deposing expert witnesses through April 5, 2016.

         Arthur was tried to the District Court on January 12 and 13, 2016. See Arthur, 840 F.3d at 1278. The evidence before the Court consisted mainly of the testimony and documents introduced during the evidentiary hearing on October 18 and 19, 2012 and deposition testimony taken during discovery conducted after that hearing. See Arthur v. Dunn, No. 2:11-cv-438, 2016 WL 1551475 (M.D. Ala. Apr. 15, 2016), aff'd sub nom., Arthur v. Comm'r, Ala. Dep't. of Corr., 840 F.3d 1268 (11th Cir. 2016). The District Court rendered its decision on April 15, 2016. In its findings of fact, [32] the Court found that "[p]entobarbital is not feasible and readily implemented as an execution drug in Alabama, nor is it readily available to the ADOC, either compounded or commercially, " and that "[s]odium thiopental is unavailable to the ADOC for use in lethal injections." Id. at *8-9.

         In its conclusions of law, the Court held that although the plaintiff "sufficiently pleaded an Eighth Amendment claim, " he "failed to prove" that either compounded pentobarbital or sodium thiopental was "readily available to the ADOC" for use in the single-drug protocols he proposed as alternative execution methods. Id. at *9-10. Because that failure doomed the plaintiff's claim, the Court did not have to, and accordingly did not, decide whether the ADOC's implementation of the current three-drug protocol, with midazolam acting as the first drug, created a "substantial risk of serious harm"[33] to a prisoner during execution.

         On February 26, 2016, while the decision in Arthur was still pending, the ADOC moved the District Court for summary judgment on Appellant's Eighth Amendment claims in the Midazolam Litigation. On March 16, the Court granted the parties' joint motion to extend the discovery deadline to April 5. On April 15, Appellants responded to the ADOC's motion for summary judgment.

         The trial scheduled for April 19-22, 2016 did not take place.[34] Instead, the District Court took the ADOC's motion for summary judgment under submission. On October 31, 2016, it granted the motion. It did so because the "Plaintiffs failed to meet their burden of proof to survive summary judgment." It observed that "Plaintiffs clearly bear the burden of proving a known and available alternative method of execution that significantly reduces the risk of substantial pain in the execution" and concluded they failed to meet that burden in that they "failed to present evidence that creates a genuine dispute of material fact as to an alternative method of execution, an essential prong of the Baze/Glossip test for an Eighth Amendment method-of-execution claim."

         The District Court reached this conclusion with respect to Appellants' proposed single-drug protocol based on the testimony of the ADOC's General Counsel, Anne Adams Hill.[35] In deciding to credit Hill's testimony and then weigh it against Appellants' proof, the District Court functioned as a finder of fact and ultimate decision maker and therefore erred. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) ("It is not the court's role to weigh conflicting evidence or to make credibility determinations; the non-movant's evidence is to be accepted for purposes of summary judgment."). The Court performed the same role when it determined the credibility of testimony and weighed the evidence in summarily disposing of Appellant's midazolam proposal.

         In Part III, we conclude that the District Court's resolution of credibility issues and its weighing of the evidence requires the vacation of its summary judgment. In Part IV, we consider and reject as meritless the ADOC's arguments that Appellants' Eighth Amendment claims were both untimely and barred by the law-of-the-case doctrine. Part V relates to the proceedings on remand.

         III.

         "Under Rule 56(c), summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). "The movant has the burden of showing that there is no genuine issue of fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2514 (1986). In deciding whether to grant summary judgment, a district court "'may not weigh conflicting evidence or make credibility determinations.'" Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (citing FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011)). With these principles in hand, we turn to the District Court's summary disposition of Appellant's Eighth Amendment claims based on its determination that none of the three alternative modes of execution, single-drug protocols consisting of compounded pentobarbital, sodium thiopental or midazolam respectiviely, satisfies Glossip's requirement that such alternatives be "feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain." Glossip, 135 S.Ct. at 2737. We begin with compounded pentobarbital.

         A.

         The District Court began its discussion about the availability of compounded pentobarbital by harkening back to the findings of fact and conclusions of law it made following the Arthur trial. The Court recalled that it had found that "the ADOC's supply of commercially manufactured pentobarbital, Nembutal®, expired around November 2013, " and that "compounded pentobarbital" was unavailable to the ADOC as an alternative single-drug protocol.

         In finding compounding pentobarbital unavailable, the Court had to resolve the conflicting testimony of Gaylen M. Zentner, Ph.D, a pharmacist, [36] and testimony that Anne Adams Hill, the ADOC's general counsel, previously gave at the Arthur trial in January 2016. See Arthur, 2016 WL 15514175, at *4-7.

         Dr. Zentner testified that "pentobarbital sodium for injection is listed in the FDA Orange Book, a publication containing all approved drugs in the United States, " and because no active patents covered the product, "anyone who has the ingredients can make pentobarbital sodium." Id. at *5. He performed an internet search for the drug and found a company that in its products list identified the drug as available for purchase in the United States. Id. at *6. He also noted that "there are overseas suppliers of pentobarbital sodium and that pentobarbital sodium could be produced by drug synthesis labs in the United States." Id. As for compounding pharmacies in Alabama, Dr. Zentner "testified that he searched the website of the Accreditation Commission for Health Care (ACHC) for accredited compounding pharmacies" and identified nineteen within the State. Id.

         Dr. Zentner also indicated that the ADOC should be able to obtain compounded pentobarbital from sources outside of Alabama, opining,

because other states have obtained compounded pentobarbital, it should also be available from those pharmacies in the other states and that any pharmacy that is qualified to do sterile compounding and has the necessary equipment could be a source of supply, as the compounding exercise is "very easy and straightforward."

Id. (quoting Dr. Zentner). The District Court seemed skeptical.

Zentner's carefully qualified answer to the last question put to him on direct examination reveals the tepid and inexact nature of his opinion concerning whether pentobarbital is available to the ADOC:
A. My opinion is that the active pharmaceutical ingredient, which is pentobarbital sodium, is available for purchase in the United States and that there are compounding pharmacies that have the skills and licenses to perform sterile compounding of pentobarbital sodium. Therefore, the feasibility for producing a sterile preparation of pentobarbital sodium does exist.

Id. (quoting Dr. Zentner). Despite its apparent skepticism, the Court still found Dr. Zentner's testimony "credible." Id. at *7.

         In Arthur, Hill testified as "the ADOC's party representative." Id. In the Memorandum Opinion and Order here under review, the Court reiterated its description of her testimony in Arthur.

Hill . . . testified [that] [s]he was aware that in 2015, Georgia, Missouri, Texas, and Virginia performed executions using compounded pentobarbital [and] that, in her recent efforts to obtain compounded pentobarbital for the ADOC's use in executions, she had contacted the departments of corrections in at least those four states.
Elaborating, Hill testified that, as part of her job duties, she is routinely in contact with other departments of corrections on a variety of issues, including the subject of lethal injection generally, the availability of compounded pentobarbital, and, in those states that have been able to obtain compounded pentobarbital, their willingness either to provide it to the ADOC or to provide their source to the ADOC. She reiterated that she has had these similar, ongoing, conversations not just recently, but "for some time."
In her quest to find a source for compounded pentobarbital, Hill has also contacted all eighteen accredited compounding pharmacies in Alabama, but her efforts were to no avail. "[N]one of the 18 were able to provide the Department of Corrections with compounded pentobarbital." In all, she has contacted at least twenty-nine potential sources to inquire about obtaining compounded pentobarbital, and all of those efforts failed.[37]

         After reiterating its description of Hill's testimony, the Court went on to say that, in Arthur, it "credited Hill's testimony and made the following findings of fact concerning pentobarbital and compounded pentobarbital":

8. The ADOC has attempted to obtain compounded pentobarbital for use in executions from departments of corrections in at least four states, Georgia, Missouri, Texas, and Virginia, but those efforts were unsuccessful.
9. The ADO has contacted all of the accredited compounding pharmacies in Alabama to ascertain whether any of these pharmacies would be willing and able to provide compounded pentobarbital to the ADOC, but those efforts have been unsuccessful.
10. Pentobarbital is not feasible and readily implemented as an execution drug in Alabama, nor is it readily available to the ADOC, either compounded or commercially.

         In passing on the ADOC's motion for summary judgment, the District Court, relying on Hill's Arthur testimony, adopted the facts depicted in paragraphs 8-10 above and examined the record for evidence indicating that at some time between the conclusion of the Arthur trial on January 13, 2016, and the date the Court took the ADOC's motion under submission, [38] the availability picture had changed. The Court appeared to ask itself the following question: Had the Plaintiffs presented evidence showing that compounded pentobarbital, though unavailable to the ADOC as of January 13, 2016, could now be obtained?

         In an effort to show that the drug was available, Appellants relied on "the report and testimony of their expert, Deborah L. Elder, Pharm. D, " a "Clinical Associate Professor in the Pharmaceutical and Biomedical Department in the College of Pharmacy at the University of Georgia" who was certified "in compounding" under Georgia law.[39] They also relied on the Complaint's factual representations that other states had been able to obtain the drug.[40]

         The Court found Dr. Elder's report and testimony unhelpful to Appellants' cause because, at the end of the day, she was unable to "identify any pharmacist or supplier who could provide compounded pentobarbital to the ADOC." The Complaint's representations that other states were able to obtain the drug was also unhelpful to Appellants in establishing that the drug was available to the ADOC. The Court found it "inconsequential" that in several states "since January 1, 2014, nearly forty executions had been performed 'using a single large dose of pentobarbital.'"[41] Moreover, "that the drug was available in those states at some point over the past two years d[id] not, without more, make it likely that it [was] available to Alabama now." It was also inconsequential that several states "intend to use compounded pentobarbital for executions."[42] Given these findings, the District Court concluded that its "earlier finding in Arthur that pentobarbital, either compounded or commercially manufactured, [was] not readily available to the ADOC" was "unchanged by the additional evidence [Appellants] offered." More to the point, "[p]laintiffs' evidence obtained after Hill's testimony in the Arthur trial in January 2016[] fail[ed] to establish that compounded pentobarbital ha[d] since become available to the ADOC."

* * *

         The Complaint, which was filed on August 25, 2015, alleges that "a single bolus of [compounded] pentobarbital . . . is read[ily] available" to the ADOC. The District Court, adopting findings of fact it made in Arthur, [43] found that compounded pentobarbital was not available on August 25, 2015; indeed, the drug was not available as of January 13, 2016, the day the Arthur trial concluded. Thus, to create a genuine issue of fact, Appellants had to demonstrate that the drug became available at some point between January 13, 2016, and the day the Court took the ADOC's motion for summary judgment under consideration.[44] The Court concluded Appellants failed to do so.

         In precluding Appellants from challenging its Arthur finding that compounded pentobarbital was unavailable to the ADOC prior to January 13, 2016, the District Court did not identify the principle of law it was invoking. The Court apparently had two doctrines in mind: issue preclusion and judicial notice.[45] Although superficially each doctrine might seem relevant, we conclude neither was applicable.

         Issue preclusion comes into play when:

(1) the issue at stake is identical to the one involved in the prior litigation; (2) the issue was actually litigated in the prior suit; (3) the determination of the issue in the prior suit was a necessary part of the judgment in that action; and (4) the parties are the same or in privity with each other and the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the earlier proceeding.[46]

Baloco v. Drummond Co., 767 F.3d 1229, 1251 (11th Cir. 2014).

         Issue preclusion, like claim preclusion, is an affirmative defense under Federal Rule of Civil Procedure 8(c). See Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir. 1982) (explaining that issue preclusion is "an affirmative defense that should be raised under Rule 8(c)").[47] It is "incumbent on the defendant to plead and prove such a defense" in answering the plaintiff's complaint. Taylor, 553 U.S. at 907, 128 S.Ct. at 2179-80.

         The ADOC could not rely on issue preclusion for two reasons. First, it failed to plead the doctrine as an affirmative defense. The ADOC filed its answer to the Complaint on October 22, 2015, and could not have pled the defense because it was not available. Arthur had not been decided. See Arthur, 2016 WL 1551475, at *1. After Arthur was decided on April 15, 2016, the ADOC could have sought leave to amend its answer, but did not.

         Second, the defense was not available to the ADOC because the parties in Arthur and Appellants' cases were not "the same, " and Arthur and Appellants were not in privity, i.e., no exceptions to the rule against nonparty preclusion applied to make Arthur binding in Appellants' cases. The general rule, set forth long ago by the Supreme Court, states that "[a] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Martin v. Wilks, 490 U.S. 755, 762, 109 S.Ct. 2180, 2184 (1989) (footnote omitted). Six exceptions to this rule have been recognized:

A court may apply nonparty preclusion if: (1) the nonparty agreed to be bound by the litigation of others; (2) a substantive legal relationship existed between the person to be bound and a party to the judgment; (3) the nonparty was adequately represented by someone who was a party to the suit; (4) the nonparty assumed control over the litigation in which the judgment was issued; (5) a party attempted to relitigate issues through a proxy; or (6) a statutory scheme foreclosed successive litigation by nonlitigants.

Griswold v. Cty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010) (citing Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 2172-73, (2008)). Collectively, these exceptions are commonly described using the catchall term "privity." E.g., Taylor, 553 U.S. at 895 n.8, 128 S.Ct. at 2172 n.8.

         None of those exceptions apply here. Nothing in the record indicates-and the District Court did not find or imply-that Appellants consented to be bound by Arthur's resolution, had any legal relationship with Arthur, were represented by him in any capacity, or had any control over his claim. Nor is there any suggestion Arthur was attempting to relitigate his claim by using Appellants as proxies. And no statute prevents successive nonparty litigation in this context. Arthur can therefore have no preclusive effect in Appellants' cases.

         Nor could the District Court rely on judicial notice to make its findings in Arthur conclusive in Appellants' cases. A district court may take judicial notice of an adjudicative fact[48] that is both "not subject to reasonable dispute" and either (1) "generally known within the trial court's territorial jurisdiction" or (2) "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).[49] "Indisputability is a prerequisite." United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citing 21 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5104 at 485 (1977 & Supp. 1994)). "If it were permissible for a court to take judicial notice of a fact merely because it has been found to be true in some other action, the doctrine of [issue preclusion] would be superfluous." Id.; see also Gen. Elec. Capital v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997) (explaining "we cannot allow a court to achieve through judicial notice what it cannot achieve through [issue preclusion]"); Taylor v. Charter Med. Corp., 162 F.3d 827, 830 (5th Cir. 1998) (noting that instances where a factual finding from another court could satisfy Rule 201's indisputability requirement for judicial notice would be rare). In reaching that conclusion, the Taylor Court drew on decisions of the Second, [50]Eighth, [51] and Eleventh Circuits, [52] explaining that all of those circuits had held that "even though a court may take judicial notice of a 'document filed in another court . . . to establish the fact of such litigation and related filings, ' a court cannot take judicial notice of factual findings of another court." Taylor, 162 F.3d at 830 (citation omitted).

         Whether compounded pentobarbital was feasible and "readily available" to the ADOC as a single-drug protocol was a factual issue in Arthur.[53] So was the credibility of Hill's testimony that the ADOC had been unable to obtain the drug. That the District Court, in Arthur, found for the ADOC on both issues did not transform the findings into indisputable adjudicative facts subject to judicial notice.

         Putting aside the doctrines of issue preclusion and judicial notice and disregarding the Arthur findings of fact, the question becomes whether the record before the Court reveals a genuine factual dispute regarding the availability of compounded pentobarbital. When we place the evidence proffered by the Appellants and the ADOC on the two sides of the scale, we find a factual dispute the Court could not resolve on summary judgment.

         On Appellants' side are the facts that since January 1, 2014, forty-two executions had been carried out using a one-drug pentobarbital protocol, [54] and that several States intended to use compounded pentobarbital as a one-drug protocol. The District Court considered these facts "inconsequential." We disagree. From these facts it can reasonably be inferred that compounded pentobarbital was available, that executions using the drug as a one-drug protocol were ongoing, and that several States contemplated employing the protocol.

         On the ADOC's side are these facts. On January 12, 2016, while testifying in the Arthur trial, Hill revealed that in 2015, Georgia, Missouri, Texas, and Virginia performed executions using compounded pentobarbital.[55] She contacted "departments of corrections . . . in those [and other] states that have been able to obtain compounded pentobarbital [regarding] their willingness either to provide it to the ADOC or to provide their source to the ADOC." Her conversations with these departments were "ongoing, . . . not just recently, but 'for some time.'"[56]What she learned about the availability of compounded pentobarbital during these conversations she did not say.

         Hill testified she contacted "at least twenty-nine potential sources" of compounded pentobarbital, inquiring whether they could provide the ADOC with the drug. Of those sources, eighteen consisted of the accredited compounding pharmacies in Alabama. She reported that none of these sources were able to provide the ADOC with the drug. Hill did not specifically identify any of the sources she contacted, or provide any details regarding the conversations she had with potential suppliers of compounded pentobarbital. What she did say was that all of her efforts failed.

         Notwithstanding the lack of specificity provided by Hill's testimony, the District Court found it credible and, moreover, that it conclusively "rebutted Arthur's allegation that compounded pentobarbital was an available alternative." Whether her testimony was credible and whether it tipped the scale in the ADOC's favor was a matter for a trier of fact. See Strickland v. Norfolk Southern Ry. Co., 692 F.3d 1151, 1162 (11th Cir. 2012) (holding that when credibility is at issue "summary judgment is simply improper"); Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (explaining "[i]t is not the court's role to weigh conflicting evidence or to make credibility determinations; the non-movant's evidence is to be accepted for purposes of summary judgment"). Hill's testimony that she sought compounded pentobarbital in fall 2015, a full year after the State switched to midazolam, is open to multiple inferences. When asked why she was attempting to find a source for the drug after the switch to midazolam, she testified that "[i]f at some point . . . I was able to determine that there was compounded pentobarbital available to us, then at that time, we would determine whether or not to amend our protocol and add that as an alternative." One inference from this testimony is that the ADOC was concerned about midazolam's adequacy as a substitute for pentobarbital. Hill did not have final decisionmaking authority over the State's execution protocol; she was the ADOC's general counsel and was testifying as a representative of the ADOC.

         Therefore, a factfinder could reasonably infer that her efforts to find a new pentobarbital source reflected her or her superiors' doubts about midazolam's effectiveness in eliminating pain potassium chloride could cause during executions. Of course, other inferences from Hill's testimony could be drawn, and that is precisely why her testimony should be been submitted to the trier of fact rather than treated as conclusive on summary judgment.

         When we consider the District Court's reliance on findings of fact it made in Arthur and its determination of the credibility of critical testimony, the conclusion is inescapable that the Court erred in holding that Appellants failed to create an issue of fact as to whether the ADOC could obtain compounded pentobarbital.

         B.

         In Arthur, the District Court made the following findings of fact regarding the availability of sodium thiopental to the ADOC:

11.Per the FDA Orange Book, sodium thiopental is no longer legally available in the United States.
12. While sodium thiopental may be available from an overseas supplier and could conceivably be imported into the United States, such importation requires the approval of the FDA. There was no evidence at trial that any state's department of corrections had obtained the FDA's approval to import sodium thiopental for use in performing its executions.
13. Sodium thiopental is unavailable to the ADOC for use in lethal injections.

Arthur, 2016 WL 1551475, at *9. Based on these findings the Court reached the following conclusion of law:

Arthur . . . failed to carry his burden to establish that sodium thiopental is an alternative drug that is available to the ADOC for use in his execution. Sodium thiopental is not currently an approved drug that is legally available in the United States. Evidence of its availability from an overseas supplier is insufficient to satisfy Glossip's requirements.

Id. at *10.

         In granting the ADOC's motion for summary judgment on the availability of sodium thiopental in the Midazolam Litigation, the District Court considered whether the evidence Appellants presented in opposition to the motion was sufficient to overcome the findings of fact it made in resolving the issue in Arthur. The Court determined that the evidence was insufficient.

Plaintiffs' proof of the availability of sodium thiopental is similar to the proof offered in the Arthur trial in January 2016, in that Plaintiffs have only provided evidence that sodium thiopental may be available from an overseas supplier and could conceivably be imported into the United States, but only with the FDA's approval. . . . In short, Plaintiffs' evidence obtained after the Arthur trial in January 2016, fails to establish that sodium thiopental has since become available to the ADOC.
* * *

         In resolving the sodium thiopental issues, the District Court committed the same error it made in resolving the compounded pentobarbital issues. It relied on its Arthur findings as if it were invoking the doctrines of issue preclusion or judicial notice and, at summary judgment, weighed those findings against the evidence presented in the case before it. As we have explained, neither doctrine justifies such reliance in this context.

         In Arthur, whether the ADOC could obtain sodium thiopental was disputed. The Court resolved the dispute by weighing the testimony of Dr. Zentner[57] and Anne Hill. Dr. Zentner testified that although sodium thiopental was "no longer listed in the FDA Orange Book, . . . it was his general understanding that sodium thiopental [wa]s available offshore and conceivably could be imported." Arthur, 2016 WL 1551475, at *6. The District Court found his "testimony . . . credible." Id. at *7. Hill disagreed with Dr. Zentner. She testified,

after the ADOC adopted a drug protocol that included midazolam, she made no effort to obtain sodium thiopental and no effort to determine if it could be legally imported for the ADOC's use in executions. Further, to her knowledge, sodium thiopental [was] not available in the United States, and she [was] unaware of any state that [had] imported sodium thiopental for use in executions.

Id. at *7. Hill, as the ADOC's general counsel, was "responsible for developing, proposing, and maintaining the ADOC's execution protocol." Id. at 8. But she was not "the final decision and policymaker concerning the ADOC's execution protocol." Id. Instead, "the final decision maker [was] the ADOC's Commissioner." Id.

         The Court also found Hill's testimony credible. Id. We assume that the Court found each witness's testimony probative of the availability or unavailability of sodium thiopental; otherwise, the District Court would have had no need to make a credibility determination. Thus, in deciding whether sodium thiopental was available to the ADOC, the Court must have weighed the testimonies of the two witnesses who spoke to the issue, Hill and Dr. Zentner. Dr. Zentner was a pharmacist, an "independent consultant to the pharmaceutical industry." Id. at 4. Hill was not. Dr. Zentner testified that sodium thiopental was available offshore and conceivably could be imported even though it was no longer listed in the FDA Orange Book. Id. at 6. Hill testified that after the ADOC adopted the current protocol, she "made no effort to obtain sodium thiopental and no effort to determine if it could be legally imported." Id. at *7. Nonetheless, she testified that, "to her knowledge, " the drug was not available in the United States. Id.

         In its findings of fact, the Court found-on the basis of Dr. Zentner's testimony-that "sodium thiopental may be available from an overseas supplier" and "conceivably" importable. Id. at *9. Hill's testimony did not negate that fact.[58] But since "[t]here was no evidence at trial that any state's department of corrections had obtained the FDA's approval to import sodium thiopental for use in performing its executions, " the Court concluded that the plaintiff, Arthur, failed to satisfy his burden of proving that sodium thiopental was available to the ADOC. Id. at *9-10. However, the District Court arrived at that conclusion after weighing the conflicting testimony and evidence presented in that case.

         The procedural posture of this case demands a different outcome because trial courts are expressly forbidden from engaging in this type of evidentiary weighing. See, e.g., Mize, 93 F.3d at 742 (noting that at summary judgment, "[i]t is not the court's role to weigh conflicting evidence"). Thus, the District Court erred in resolving the dispute over the availability of sodium thiopental by judging the credibility of the witnesses' testimony and then weighing that testimony, along with the other evidence in the record, to decide the ultimate fact-the availability of sodium thiopental. See Jones, 683 F.3d at 1292 ("If the record presents disputed issues of fact, the court may not decide them; rather, we must deny the motion and proceed to trial.") (alteration omitted) (quoting FindWhat Investor Grp., 658 F.3d at 1307). For that reason, the District Court's determination that there was no genuine issue of material fact regarding the unavailability of sodium thiopental was erroneous and must be set aside.

         C.

         Whether the use of midazolam in a single-drug protocol satisfied Baze's feasible-alternative standard was not before the District Court in Arthur. The District Court therefore resolved the issue without reference to its Arthur decision.[59]

         Frazier's Complaint expresses Appellants' alternative proposal as "a single dose of midazolam." The Complaint states that, according to the finding of a federal district court in Oklahoma, "a 500mg dose of midazolam will likely cause death in under an hour." [60] The Complaint also states that the "Defendants' own expert endorses this [alternative] method."[61]

         The District Court read the Complaint's allegation as follows: "Plaintiffs' third proposed alternative is a 500-mg dose of midazolam administered in a single-drug protocol."[62] Since the ADOC had a supply of midazolam on hand, the availability of the drug was not an issue. Given its interpretation of the Complaint's alternative proposal, the Court's task was to decide whether the record established for summary judgment purposes that a 500-milligram dose of midazolam would "significantly reduce a substantial risk of severe pain." Glossip, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 52, 128 S.Ct. at 1520).

         According to the deposition testimony of Randall Tackett, Ph.D, [63] "a 500-mg dose of midazolam [was] too low, presumably to cause death." Instead, Tackett explained,

if midazolam were used in a one-drug protocol, he would recommend a loading dose of between 2.5 and 3.75 grams, the equivalent of between 2500 and 3750 milligrams of midazolam, a dose five to eight times larger than the 500-milligram dose Plaintiffs have pled as an alternative method of execution. [He] also recommended that this loading dose should be followed by continuous infusion until death.[64]

         Based on this testimony, the Court concluded that

[t]he opinion of Plaintiffs' own expert that a 500-mg dose of midazolam is too low refutes the feasibility of Plaintiffs' proposed alternative, and there is no other scientific evidence of record to support this novel alternative. Dr. Tackett's report and opinion fail to support, and in fact undermine, Plaintiffs' claim that a 500-mg dose of midazolam in a one-drug protocol would result in significantly less risk of substantial pain than Alabama's present protocol, as Glossip requires. Plaintiffs also have failed to raise a genuine dispute of material fact that a 500-mg dose of midazolam in a single-drug protocol is a feasible alternative that is readily implemented.
* * *

         The District Court reached this dispositive conclusion after assessing the credibility of Dr. Tackett's testimony and then weighing it against the contrary evidence the record presented, including testimony by the ADOC's expert, Dr. Daniel Buffington, a clinical pharmacologist and faculty member at the University of South Florida Colleges of Medicine and Pharmacy and the President and Practice Director for Clinicial Pharmacology Services in Tampa, Florida. Although Dr. Buffington's testimony was in the record, the Court overlooked it.[65]Dr. Buffington testified that "500mg of midazolam in a bolus as provided for in [Alabama's current three-drug] protocol [would] be sufficient on its own to cause death, " noting that 500mg is "multiple times the toxic range for midazolam and there are deaths [at dosages] as low as 10[mg] to 50 [mg]."

         In addition to Dr. Buffington's testimony, the Court overlooked statements the ADOC made in its motion to dismiss Frazier's complaint. See Frazier v. Myers, No. 2:13-cv-00781 (M.D. Ala. Sept. 25, 2015).[66] The ADOC stated that it would consent to a judgment that "suspend[s] the current lethal-injection protocol" and utilizes midazolam as the sole drug in Alabama's execution protocol. Id. at 4.[67] "After an initial 500-milligram bolus of midazolam, the execution team w[ould] administer an additional 500-milligram dose of midazolam, if needed, until [the prisoner's] sentence [was] carried out." Id. at 10.[68]

         The ADOC represented that it made this proposal in reliance on Frazier's attorney's Rule 11 affirmation in good faith that he had "a factual basis to believe" that the use of midazolam in a single-drug execution protocol would result in a "constitutionally acceptable" execution. Id. at 3. In relying on the attorney's affirmation, was the ADOC implying that an execution protocol consisting of a 500-milligram dose of midazolam with additional doses provided as needed would potentially violate the Eighth Amendment? Put another way, would the ADOC induce the Court to enter a consent decree that might yield a constitutional violation? The answer to each of those questions must be "no." [69]

          The District Court's error in determining the credibility of Dr. Tackett's testimony and ignoring Dr. Buffington's testimony, which was at odds with Dr. Tackett's, and the significance of the ADOC's offer to substitute a single-drug protocol containing midazolam for its current three-drug protocol require vacation of the summary judgment. Whether that proposal would "significantly reduce a substantial risk of harm, " as Baze requires, cannot be determined in a vacuum. The Court first must determine what risk of harm, if any, the current three-drug protocol creates.

         IV.

...


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