from the United States District Court for the Middle District
Before: TJOFLAT, ROSENBAUM and JILL PRYOR, Circuit Judges.
appeal involves four of a group of twelve cases filed in the
Middle District of Alabama by death row inmates challenging,
under 42 U.S.C. § 1983, the constitutionality of the
State's lethal injection protocol. In a single
order, the District Court dismissed the four cases pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim for relief. We reverse the District Court's
dismissal of the cases and remand them for further
July 1, 2002, Alabama has employed lethal injection as its
preferred method of executing inmates sentenced to death in
the State. Act 2002-492, 2002 Ala. Laws 1243
(codified at Ala. Code § 15-18-82.1). Since that time,
the State's lethal injection procedure has involved the
sequential injection of three drugs. See
Williams v. Allen, 496 F.3d 1210, 1214 (11th Cir.
2007) (noting that Alabama's lethal injection protocol
consisting of three drugs had remained unchanged "since
its inception in 2002"). 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) (plurality opinion):
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 (citations omitted).
April 26, 2011, Alabama substituted pentobarbital, "a
short-acting barbiturate" sedative,  for sodium
thiopental, as the first drug in its three-drug protocol.
Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir.
2011) (per curiam). Then, on September 10, 2014, the State
substituted midazolam, a benzodiazepine sedative,
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
four cases at hand, the appellants ("Appellants"),
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 Alabama Department of Corrections
("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.
Consequently, they assert midazolam does not produce the
sustained state of anesthesia necessary to render them
insensate to the intolerable pain that will be generated by
subsequent injections of rocuronium bromide and potassium
chloride. To satisfy Baze's second prong,
Appellants also propose 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 Memorandum Opinion
and Order of March 31, 2017, granting the ADOC's motion
to dismiss Appellants' complaints pursuant to Federal
Rule of Civil Procedure 12(b)(6). In its order, the Court
concluded that Appellants claims were "identical"
to the claims raised by Ronald Bert Smith, and dismissed by
the District Court under Rule 12(b)(6), in Grayson v.
Dunn (Smith), 221 F.Supp.3d 1329 (M.D. Ala.,
Nov. 18, 2016), aff'd sub nom., Grayson v.
Warden, 672 F.App'x 956 (11th Cir.
Smith, the District Court adopted the ADOC's
reading of Smith's complaint as a "general
challenge" to its three-drug protocol that uses a
paralytic and potassium chloride as the second and third
drugs. See id. at 1333. The Court observed that
Smith's response to the ADOC's motion to dismiss did
"not address Defendants' contention that his claim,
in actuality, is a challenge against the use of any
three-drug execution protocol." Id. at 1334.
Therefore, the Court concluded that the challenge should have
been brought during the two-year statute of limitations
period that began to run in July 2002, when Alabama chose
lethal injection over the electric chair. Id. Hence,
it dismissed Smith's complaint as time-barred.
Id. at 1335. Smith appealed that decision to this
Court, and we affirmed the District Court's decision in
December 2016. Smith, 672 F.App'x at 958.
the District Court found that Appellants' complaints were
identical to Smith's complaint, the Court concluded that
its determination regarding the true nature of Smith's
complaint as a "general challenge" to the
three-drug protocol was "equally applicable" in
Appellants' cases. Thus, it held, "[Appellants']
claims, just like Smith's claims, are time-barred."
ask us to reverse the District Court's dismissal of their
Eighth Amendment claims on the basis that the District Court
erred in construing their complaints as "general
challenge[s], " in the face of allegations that plainly
challenge the protocol on the basis that midazolam would not
render them insensate. In response, the ADOC contends
dismissal was proper because "this Court has already
considered and rejected [Appellants'] claims in their
co-plaintiff's case." In other words, the ADOC
avers, because the District Court agreed with the ADOC's
reading of Smith's complaint as a general challenge to
the State's use of a three-drug lethal injection
protocol, and because a panel of this Court did not disturb
that interpretation, our decision in Smith precludes
Appellants' claims in this case.
carefully considering the record and the parties' briefs,
we hold that dismissal of Appellants' claims was
improper. We do so because we are not persuaded by the
ADOC's argument-which the District Court accepted in
Smith and this case-that Appellants' complaint
is a general challenge to the State's three-drug lethal
injection protocol. We also note that our decision today does
not contradict the law-of-the-case doctrine, because the
panel's holding in Smith does not apply in
Appellants' cases and thus does not dictate our decision
in this appeal. We therefore reverse the District Court's
dismissal and remand the case for further proceedings.
ADOC argues that we should affirm the District Court's
dismissal of Appellants' cases for two independent
reasons. First, it argues that our holding in Smith
is the law of the case that binds our decision in this
appeal, because Smith's case and Appellants'
cases-having been included in the "Midazolam
Litigation"-have now become the same case. Second, the
ADOC asserts that Appellants' complaints are time-barred
because they do not really challenge the State's use of
midazolam as the first drug in its three-drug protocol. In
actuality, the ADOC argues, the complaints are, "on
[their] face, " nothing more than "general
challenge[s]" to the three-drug lethal injection
protocol Alabama has used to carry out capital punishment
sentences since 2002. We address the ADOC's arguments in
begin our analysis by dispensing with the ADOC's
law-of-the-case argument. The law-of-the-case doctrine holds
that "findings of fact and conclusions of law by an
appellate court are generally binding in all subsequent
proceedings in the same case in the trial court or
on a later appeal." Westbrook v. Zant, 743 F.2d
764, 768 (11th Cir. 1984) (emphasis added) (quoting
Dorsey v. Continental Cas. Co., 730 F.2d 675, 678
the ADOC argues, since the District Court consolidated
Smith's case and Appellants' cases as part of the
"Midazolam Litigation, " all of those cases are now
one case, such that Smith's affirmance of the
District Court's dismissal of Smith's complaint now
dictates our decision in this appeal. Thus, the ADOC argues,
since the panel in Smith accepted the District
Court's reading of Smith's complaint as a time-barred
"general challenge" to Alabama's three-drug
lethal injection protocol, we must now read Appellants'
complaints as time-barred general challenges as well.
disagree. Appellants and Smith's shared status as part of
the "Midazolam Litigation" does not change the fact
that they are still separate cases. That the District Court
consolidated cases challenging the State's midazolam
protocol for purposes of discovery and trial did not
transform them into a single case. Here, we direct the
parties to our law-of-the-case discussion in Grayson v.
Warden, Comm'r, Ala. DOC (Frazier), No.
16-16876, 2017 WL 3815265 (11th Cir. Sept. 1, 2017), in which
we reversed the District Court's entry of summary
judgment in favor of the ADOC in four of the consolidated
cases after denying the ADOC's Rule 12(b)(6) motion to
dismiss. In Frazier, we discussed at length why the
cases forming the "Midazolam Litigation" are not
the same case for law-of-the-case purposes. Id. at
*18-29. As we ...