Geoffrey West v. Commissioner, Alabama DOC

Citation: 869 F.3d 1289Docket: 17-11536

Court: Court of Appeals for the Eleventh Circuit; September 6, 2017; Federal Appellate Court

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The case involves an appeal from the United States Court of Appeals for the Eleventh Circuit regarding four death row inmates challenging the constitutionality of Alabama's lethal injection protocol under 42 U.S.C. § 1983. The District Court had dismissed their claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The appellate court reversed this dismissal and remanded for further proceedings. One appellant, Robert Bryant Melson, was executed on June 8, 2017, after the U.S. Supreme Court vacated a stay of execution that had been granted by the appellate court.

Since July 1, 2002, Alabama has used lethal injection as the method of execution, employing a three-drug protocol consisting of sodium thiopental (later replaced by pentobarbital and then midazolam), rocuronium bromide (replacing pancuronium bromide), and potassium chloride. The first drug is intended to cause unconsciousness, while the second paralyzes the body, and the third induces cardiac arrest. The appellants argue that execution under the current protocol constitutes "cruel and unusual punishment" in violation of the Eighth Amendment and seek an injunction against the Alabama Department of Corrections from proceeding with executions under this protocol.

In Glossip v. Gross, the Supreme Court clarified the two-pronged standard for Eighth Amendment method-of-execution claims established in Baze. The first prong requires plaintiffs to show that the execution method poses a substantial risk of serious harm, meaning it could likely cause severe illness or suffering. The second prong necessitates the identification of an alternative execution method that is feasible and significantly reduces the risk of severe pain; merely presenting a marginally safer alternative is inadequate.

The District Court categorized cases challenging the three-drug execution protocol as “Midazolam Litigation.” Appellants sought an injunction against the three-drug protocol and additional disclosures from the Alabama Department of Corrections (ADOC) regarding the execution protocol and drug procurement details. They argued that midazolam, unlike sodium thiopental or pentobarbital, fails to provide sufficient anesthesia, resulting in a substantial risk of pain from subsequent drugs.

The District Court dismissed the Appellants’ complaints, finding them identical to those in Grayson v. Dunn, which were previously dismissed under Rule 12(b)(6). The Court noted that the claims were effectively a general challenge to the three-drug protocol, which had been time-barred since the two-year statute of limitations began in July 2002. The District Court's decision was affirmed by the appellate court.

Appellants contended that the District Court mischaracterized their challenges as general rather than specific to midazolam’s effectiveness in preventing pain. They sought to reverse the dismissal of their Eighth Amendment claims based on this assertion.

The ADOC argues that the dismissal of Appellants’ claims is justified because the Court has previously rejected similar claims in a co-plaintiff's case, asserting that the District Court's interpretation of Smith’s complaint as a general challenge to the three-drug lethal injection protocol should apply to the Appellants. However, the Court finds this dismissal improper, stating that the ADOC's position is unconvincing and that the Appellants' claims do not constitute a general challenge to the lethal injection protocol as argued. The Court clarifies that the law-of-the-case doctrine does not apply since the decisions in Smith do not dictate the outcomes for the Appellants’ separate cases, despite their inclusion in the “Midazolam Litigation.” The ADOC further contends that the Appellants’ complaints are time-barred and merely general challenges to the protocol. The Court rejects this argument, emphasizing that although the cases were filed simultaneously and share similarities, they are distinct, and procedural differences preclude equating them. The ADOC's motion in Smith, which offered an alternative execution method involving midazolam, and the District Court's endorsement of this option do not alter the separate legal status of the cases. Consequently, the Court reverses the dismissal and remands for further proceedings.

The District Court's consolidation of cases regarding the State’s midazolam execution protocol did not convert them into a single case. In the case of Grayson v. Warden, the court reversed a summary judgment favoring the ADOC in four of these consolidated cases after rejecting the ADOC’s motion to dismiss. The cases, referred to as "Midazolam Litigation," were at different litigation stages when consolidated. The Court ordered the ADOC to provide a current execution protocol for inspection and required Smith to explain why he should not be executed using his proposed method of execution involving midazolam. Smith agreed to the use of a single-drug protocol but insisted that the ADOC must adopt a comprehensive protocol that included equipment and training, recommending a loading dose of 2.5 to 3.75 grams of midazolam.

The ADOC rejected this recommendation, stating it significantly deviated from Smith's original complaint's proposed protocol. The Court recognized a deadlock between Smith and the ADOC, leading to the abandonment of further consideration of Smith's midazolam alternative and the granting of the ADOC's motion to dismiss. The District Court deemed the Appellants' complaints as identical to Smith’s, concluding they were time-barred as general challenges to the lethal injection protocol. The Appellants argued against this interpretation, claiming their complaints specifically challenged the protocol's efficacy with midazolam. The ADOC supported dismissal, citing that the Court had previously rejected similar claims.

Upon review, the appellate court determined that the dismissal of the Appellants' claims was improper, disagreeing with the District Court’s interpretation that the Appellants' complaints were general challenges to the lethal injection protocol. The panel clarified that the law-of-the-case doctrine did not apply, as the conclusions drawn in Smith did not influence the Appellants’ cases in this appeal.

The District Court's dismissal is reversed, and the case is remanded for further proceedings. The Alabama Department of Corrections (ADOC) argues for affirming the dismissal based on two points: first, that the law-of-the-case doctrine binds the decision in this appeal due to the consolidation of Smith's case with the Appellants' cases within the "Midazolam Litigation"; and second, that the Appellants' complaints are time-barred as they do not challenge the use of midazolam specifically, but rather the broader three-drug lethal injection protocol used since 2002.

The court dismisses the ADOC's law-of-the-case argument, clarifying that while Smith and Appellants are part of the same litigation, they are still separate cases. Although both cases were filed around the same time and contain similar complaints, they followed different procedural paths. Smith's execution was scheduled for December 8, 2016, and the ADOC had offered him an alternative execution method using a single-drug protocol with midazolam, which the District Court deemed viable based on Smith's allegations.

The consolidation for discovery and trial purposes does not equate to these cases becoming one. The court references its previous decision in Grayson v. Warden, asserting that the cases within the Midazolam Litigation are not identical for the purposes of the law-of-the-case doctrine, as they were at different litigation stages when consolidated. The ADOC was ordered to provide updated execution protocols for review by the court.

Smith was ordered to demonstrate by November 16, 2016, why the court should not mandate his execution using a specific method described in his complaint, which involved an initial large dose of midazolam followed by continuous infusion. Smith concurred that the court could order this method but insisted that the Alabama Department of Corrections (ADOC) must first establish a satisfactory protocol, including necessary equipment and training, incorporating the recommendations of his expert, Dr. Tackett. Dr. Tackett proposed a loading dose of midazolam between 2.5 and 3.75 grams, followed by continuous infusion until death. The ADOC rejected this proposal, arguing it diverged from Smith’s original complaint, which specified a 500-milligram bolus of midazolam followed by continuous infusion. The court identified an impasse between Smith and the ADOC, leading to the abandonment of further consideration of the midazolam alternative and granting the ADOC’s motion to dismiss.

The District Court found that the Appellants’ complaints mirrored Smith's and thus concluded they were similarly time-barred. The Appellants sought to overturn this dismissal, contending that their claims explicitly challenged the execution protocol based on concerns that midazolam would not render them insensate. The ADOC maintained that the dismissal was justified because the court had already dismissed similar claims in Smith’s case, asserting that the interpretation of Smith’s complaint as a general challenge to the three-drug protocol precluded the Appellants' claims. Upon review, the court found the dismissal of the Appellants' claims to be improper, rejecting the ADOC's argument that their complaints were merely general challenges. The court clarified that its decision did not violate the law-of-the-case doctrine, as the findings in Smith did not apply to the Appellants. Consequently, the court reversed the District Court’s dismissal and remanded the case for further proceedings. The ADOC had also argued for affirmation of the dismissal based on two points: the law-of-the-case doctrine and the assertion that the Appellants’ complaints were time-barred, which the court addressed sequentially.

The law-of-the-case doctrine asserts that findings from an appellate court are binding in subsequent proceedings within the same case. The Alabama Department of Corrections (ADOC) contends that because the District Court consolidated Smith’s case with other cases in the "Midazolam Litigation," Smith's affirmance of the dismissal of his complaint should dictate the outcomes of the Appellants' appeals. The ADOC argues that since Smith's complaint was deemed a time-barred challenge to Alabama's lethal injection protocol, the Appellants’ cases should be read similarly. However, the appellate court disagrees, clarifying that although the cases are part of the same litigation, they remain distinct. 

Smith's case differed procedurally; it involved a scheduled execution and the ADOC's offer of an alternative execution method using midazolam, which Smith acknowledged as viable. The District Court noted that all parties agreed on the availability and feasibility of midazolam, indicating it posed no undue risk. The court consolidated cases for discovery and trial but did not merge them into a single case. The appellate court referenced its prior ruling in Grayson v. Warden, which established that the cases in the Midazolam Litigation are not the same for law-of-the-case purposes due to their varying procedural statuses. The District Court ordered the ADOC to submit current execution protocols for review and required Smith to justify why the court should not mandate execution using his proposed midazolam method.

The excerpt outlines the legal proceedings related to Mr. Smith's proposed execution method using a single-drug midazolam protocol. Smith contended that the Alabama Department of Corrections (ADOC) should adopt a protocol based on Dr. Tackett's recommendation of a loading dose of midazolam between 2.5 and 3.75 grams, followed by a continuous IV infusion until death. The ADOC rejected this proposal, asserting that it significantly deviated from Smith's original complaint, which suggested a different protocol involving a 500-milligram bolus of midazolam. The court recognized the stalemate between Smith and the ADOC and subsequently dismissed Smith's midazolam alternative, granting the ADOC's motion to dismiss.

The excerpt also compares Smith's case to that of another appellant, Borden, emphasizing that the law-of-the-case doctrine does not apply because Smith's case was adjudicated separately and earlier than Borden's. The court clarified that consolidating cases for procedural efficiency does not merge them into a single case regarding legal rulings. It dismissed the ADOC's argument that Smith's inaction should affect Borden's case. The focus then shifted to assessing whether Appellants' Eighth Amendment claim against the ADOC met the legal standards necessary to withstand a motion to dismiss under Rule 12(b)(6). The court affirmed that it would review the dismissal de novo, accepting the complaint's facts as true and drawing reasonable inferences in the Appellants' favor. Appellants' complaints were largely similar, differing only in specifics related to their individual convictions and litigation histories.

The Eighth Amendment claim is assessed against a backdrop of disorganized pleadings, similar to those in Frazier. The complaints include excessive extraneous materials—over 100 pages of irrelevant exhibits—making the substantive legal arguments less clear. The main focus is on Geoffrey West's complaint, which challenges Alabama's execution protocol based on the standard from Baze v. Rees. This standard necessitates the prisoner to demonstrate that the execution protocol poses a "substantial risk of serious harm," which cannot merely involve any possibility of pain but must indicate a high likelihood of significant illness and suffering. Additionally, the prisoner must present a feasible alternative execution method that would reduce this risk.

West's complaint specifically claims that potassium chloride inflicts unconstitutional pain if the prisoner is not sufficiently anesthetized prior to its administration. The complaint argues that midazolam, used as the initial sedative, is unreliable for ensuring deep sedation, potentially leaving the prisoner aware of the pain caused by subsequent drugs. Therefore, the Appellants assert that using midazolam introduces a serious risk of severe pain from the latter drugs, and they propose a single bolus of compounded pentobarbital as a viable alternative protocol to mitigate this risk.

The most common method of execution in the United States is discussed, highlighting that alternatives like sodium thiopental, which can cause death without the use of a paralytic or potassium chloride, and midazolam, which may induce death within an hour, are readily available. The Appellants argue that if midazolam fails to render a prisoner insensate, the resultant severe pain from subsequent drugs would pose a substantial risk of serious harm, meeting the first prong of the Baze standard. Moreover, their proposed alternatives would eliminate the risks associated with the current protocol, satisfying the second prong of Baze. The ADOC's argument to adopt the District Court’s findings would also necessitate acceptance of the findings regarding midazolam's availability and effectiveness as an alternative execution method. The court noted that midazolam is agreed to be available, feasible, readily implementable, and not inherently risky in terms of unnecessary suffering.

Additionally, the excerpt addresses the statute of limitations for claims under 42 U.S.C. § 1983, which are subject to Alabama's two-year limitation for personal injury actions. The claim's accrual date is defined as either the completion of state review or the imposition of a new or significantly altered execution protocol, aligning with precedents set in McNair v. Allen.

A “substantial change” in an execution protocol must significantly alter the method of execution. Determining whether such a change has occurred involves a fact-dependent inquiry based on the specific allegations and evidence presented by the plaintiff. The discussion centers on whether the District Court erred in classifying Appellants’ challenge as a general challenge to Alabama’s three-drug lethal injection protocol, rather than a specific challenge to the use of midazolam as the first drug. Appellants filed their complaints in 2016, with Alabama having substituted midazolam for pentobarbital in 2014. If the Appellants are indeed challenging the three-drug protocol broadly, their complaint would be barred; if they are specifically contesting the use of midazolam, it would not be. 

The review of the complaint reveals that the court is not bound by a prior case, Smith, which was unpublished and thus not binding precedent. Furthermore, the court asserts that a plaintiff is not required to respond to an adversary's interpretation of their complaint if the complaint clearly alleges a valid claim for relief. The Alabama Department of Corrections (ADOC) contended that the plaintiffs’ complaints aimed to address the risks of three-drug protocols broadly rather than focusing solely on midazolam. The District Court accepted this interpretation, arguing that the plaintiffs’ proposed alternatives indicated a challenge to the three-drug protocols as a whole, rather than a specific objection to midazolam.

Smith is contesting the constitutionality of Alabama's three-drug lethal injection protocol under the Eighth Amendment, specifically challenging the last two drugs administered, rather than the initial drug. The Court determined that Smith's arguments regarding midazolam were a distraction from the core issue, which was that his claim against the protocol was time-barred. The District Court noted that Smith did not adequately counter the Defendants' assertion that his claim was fundamentally a challenge to any three-drug execution protocol, which had accrued long ago and was thus time-barred. The Court criticized the District Court for altering Smith's original claim by focusing only on its perceived true nature, ignoring the explicit allegations concerning midazolam's effectiveness as an anesthetic. Smith's complaint specifically alleges that midazolam, a sedative without analgesic properties, could lead to a false sense of adequate anesthesia while failing to prevent pain. The complaint asserts that midazolam is improperly used as the sole anesthetic in the protocol, and argues that its use, along with a paralytic and potassium chloride, violates precedents set by Baze and Furman, as well as contemporary standards of decency.

The challenge addressed is specifically against the Alabama Department of Corrections' (ADOC) use of midazolam in its lethal injection protocol. The ADOC contends that the Appellants' alternatives, which involve single-drug executions, implicitly challenge the entire three-drug protocol. The District Court supported this view, suggesting that to comply with legal standards, the Appellants would need to propose alternative drugs for use in the existing three-drug protocol, effectively reverting to a pre-midazolam method.

However, it was clarified that a prisoner must demonstrate two criteria: first, that the current execution protocol poses a “substantial risk of serious harm,” and second, that the proposed alternatives would “significantly reduce” that risk and are both “feasible” and “readily implementable.” The nature of the alternatives—whether one-drug, two-drug, or three-drug—is deemed irrelevant. Additionally, if a general challenge to a three-drug protocol is barred by the statute of limitations, the prisoner must show that substituting one drug for another constitutes a “substantial change” in protocol.

The conclusion drawn is that a specific challenge to one drug does not equate to a general challenge against all three-drug protocols. The Appellants' allegations, if proven, meet the Baze standard, and thus the District Court's dismissal of their claim was erroneous. The ruling is reversed, and the case is remanded for further proceedings.