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West v. Warden, Commissioner, Alabama Doc

United States Court of Appeals, Eleventh Circuit

September 6, 2017

GEOFFREY TODD WEST, et al 2:12-cv-00316 Plaintiffs,
WARDEN, COMMISSIONER, ALABAMA DOC, Defendants. TORREY TWANE MCNABB, 2:13-cv-00781 Plaintiff-Appellant, CHARLES LEE BURTON, 2:14-cv-01028 Plaintiff-Appellant, ROBERT BRYANT MELSON, 2:14-cv-01029 Plaintiff-Appellant, JEFFERY LYNN BORDEN, 2:14-cv-01030 Plaintiff-Appellant,

         Appeal from the United States District Court for the Middle District of Alabama

          Before: TJOFLAT, ROSENBAUM and JILL PRYOR, Circuit Judges.

         This 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.[1] 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 proceedings.


         Since July 1, 2002, Alabama has employed lethal injection as its preferred method of executing inmates sentenced to death in the State.[2] 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).

         On April 26, 2011, Alabama substituted pentobarbital, "a short-acting barbiturate" sedative, [3] 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, [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 ("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.[5] They seek an order under 42 U.S.C. § 1983 enjoining the Alabama Department of Corrections ("ADOC") from executing them pursuant to that protocol.[6] 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).[7]

         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. 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.[8]

         Before 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).[9] 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. 2016).[10]

         In 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.

         Because 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."

         Appellants 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.

         After 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.


         The 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 order.


         We 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 (11th Cir.1984)).

         Here, 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.

         We disagree. Appellants and Smith's shared status as part of the "Midazolam Litigation" does not change the fact that they are still separate cases.[11] 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 ...

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