from the United States District Court for the Middle District
of Alabama D.C. Docket Nos. 2:12-cv-00316-WKW-CSC,
TJOFLAT, ROSENBAUM and JILL PRYOR, Circuit Judges.
1, 2002, the State of Alabama chose lethal injection, rather
than electrocution, as its preferred method of implementing
capital punishment. The Alabama Department of Corrections
("ADOC") thereafter adopted a three-drug protocol
to administer the injection. 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.
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
April 26, 2011, Alabama substituted pentobarbital, "a
short-acting barbiturate" sedative,  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, 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.
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. They seek an order under 42
U.S.C. § 1983 enjoining the ADOC from executing them pursuant
to that protocol. 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
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 of midazolam.
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. 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
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. 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.
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
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"). 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.
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. 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"; that "a 500mg dose of
midazolam will likely cause death in under an
hour"; and that the ADOC "can obtain
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,
Oklahoma,  and Arizona; 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"; 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"; and that the "Defendant's own
expert endorses" the use of a single 500-milligram bolus
of midazolam as a method of execution.
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,  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.  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.  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
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,  the District Court was required to
dismiss Frazier's Complaint for failure to state a claim
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
Id. at 10.  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." Id. at 11.
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.
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.  "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.  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.
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.
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
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.
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,  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.
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" to a prisoner during execution.
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.
trial scheduled for April 19-22, 2016 did not take
place. 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
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. 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.
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.
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.
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
finding compounding pentobarbital unavailable, the Court had
to resolve the conflicting testimony of Gaylen M. Zentner,
Ph.D, a pharmacist,  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.
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.
Zentner also indicated that the ADOC should be able to obtain
compounded pentobarbital from sources outside of Alabama,
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
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.
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
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.
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
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
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.
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,  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?
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. They also relied on the
Complaint's factual representations that other states had
been able to obtain the drug.
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.'" 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." 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
* * *
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,
 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. The Court concluded Appellants failed to
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. Although
superficially each doctrine might seem relevant, we conclude
neither was applicable.
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.
Baloco v. Drummond Co., 767 F.3d 1229, 1251 (11th
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)"). 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.
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.
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
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.
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.
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 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). "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,
Eighth,  and Eleventh Circuits,  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
compounded pentobarbital was feasible and "readily
available" to the ADOC as a single-drug protocol was a
factual issue in Arthur. 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.
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.
Appellants' side are the facts that since January 1,
2014, forty-two executions had been carried out using a
one-drug pentobarbital protocol,  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.
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. 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.'"What she learned about the availability
of compounded pentobarbital during these conversations she
did not say.
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.
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
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.
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.
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
13. Sodium thiopental is unavailable to the ADOC for use in
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
Id. at *10.
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.
* * *
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.
Arthur, whether the ADOC could obtain sodium
thiopental was disputed. The Court resolved the dispute by
weighing the testimony of Dr. Zentner 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."
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.
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. 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.
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
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
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."  The Complaint also states that the
"Defendants' own expert endorses this [alternative]
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." 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).
to the deposition testimony of Randall Tackett, Ph.D,
 "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.
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
* * *
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.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]."
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). 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. "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.
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." 
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