Case: 16-17167 Date Filed: 12/07/2016 Page: 1 of 24
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-17167 ________________________
D.C. Docket No. 2:12-cv-00316-WKW-CSC
CAREY DALE GRAYSON, et al.,
Plaintiffs,
and
RONALD BERT SMITH, JR.,
Consolidated Plaintiff-Appellant,
versus
WARDEN, COMMISSIONER, ALABAMA DOC,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Alabama ________________________
(December 7, 2016) Case: 16-17167 Date Filed: 12/07/2016 Page: 2 of 24
Before TJOFLAT, HULL, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Alabama death row prisoner Ronald Bert Smith is scheduled to be executed
by lethal injection on December 8, 2016. In April 2016, he filed a complaint in the
district court pursuant to 42 U.S.C. § 1983 challenging Alabama’s method of
execution as cruel and unusual under the Eighth Amendment and its policy
prohibiting counsel who is witnessing an execution from having access to a
cellular or landline phone as violating his right of access to the courts under the
First, Eighth, and Fourteenth Amendments. Smith’s case was consolidated with
the cases of other Alabama death row prisoners who had asserted similar claims in
the “Midazolam Litigation” that was pending in the district court.
On November 18, 2016, the district court dismissed Smith’s § 1983 claims
as time-barred under the applicable statute of limitations. Smith has appealed that
ruling. Although he did not seek a stay of execution in the district court, Smith has
filed a motion for a stay of execution in conjunction with his appeal. In light of
Smith’s impending execution, the Court ordered expedited briefing on the appeal.
Having carefully considered the record and the arguments of the parties, we
AFFIRM the district court’s order and DENY Smith’s motion to stay his
scheduled execution.
2 Case: 16-17167 Date Filed: 12/07/2016 Page: 3 of 24
BACKGROUND
Smith shot and killed a convenience store clerk during a robbery of the store
in 1994. Smith v. State, 756 So. 2d 892, 901 (Ala. Crim. App. 1997). He was
convicted of capital murder and sentenced to death. Id. The details of the crime
are set forth in the Alabama court’s decision on Smith’s direct appeal. See id.
Smith was sentenced to death based on the sentencing judge’s determination that
the murder was “an execution-style slaying” during which the store clerk was
“pistol-whipped and beaten into helpless submission, but Smith nevertheless killed
him to avoid later identification” and that Smith was indifferent to or enjoyed the
clerk’s suffering, bragging and smiling or laughing about the killing when he
described it. Id. at 950–51. Smith’s direct appeal concluded in 2000. Smith v.
Alabama, 531 U.S. 830 (2000). His state post-conviction and federal habeas
proceedings concluded more than a year ago. Smith v. Thomas, 134 S. Ct. 513
(2014).
On April 15, 2016, Smith filed a § 1983 complaint challenging under the
First, Eighth, and Fourteenth Amendments Alabama’s method of execution and its
policy denying counsel witnessing an execution access to a cell or landline phone.
Smith’s complaint contained claims identical to those asserted by other Alabama
death row prisoners in the Midazolam Litigation that was pending in the district
3 Case: 16-17167 Date Filed: 12/07/2016 Page: 4 of 24
court. The district court thus consolidated Smith’s case with the Midazolam
Litigation for discovery and trial.
Like the other prisoners in the Midazolam Litigation, Smith primarily
challenges the constitutionality of Alabama’s three-drug lethal injection protocol.
When Smith was sentenced to death, Alabama executed condemned prisoners by
electrocution. See Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011). In
July 2002, Alabama adopted lethal injection as its preferred form of execution.1
Id. Since that time, Alabama has used a three-drug lethal injection protocol. See
Brooks v. Comm’r, Ala. Dep’t of Corr., 810 F.3d 812, 823 (11th Cir. 2016). The
first drug in the protocol is intended to render the inmate unconscious and prevent
him from experiencing pain during the execution. See id. The second drug is a
paralytic agent that inhibits voluntary muscle movements and stops respiration.
See id. The third drug interferes with the electrical signals that stimulate heart
contractions and causes cardiac arrest. See id.
Currently, Alabama’s lethal injection protocol calls for the administration of:
(1) a 500-mg dose of midazolam, (2) followed by a 600-mg dose of rocuronium
bromide, and (3) finally, 240 milliequivalents of potassium chloride. From 2002
until April 2011, Alabama used sodium thiopental as the first drug in the sequence. 1 The legislation implementing this change allowed prisoners already under a sentence of death a 30-day window to choose electrocution as their method of execution, after which time they would be deemed to have waived the right to request a method other than lethal injection. Ala. Code § 15-18-82.1(b). Smith did not exercise his right to choose electrocution as his method of execution.
4 Case: 16-17167 Date Filed: 12/07/2016 Page: 5 of 24
See Brooks, 810 F.3d at 823. Sodium thiopental became unavailable in 2011, and
Alabama began using pentobarbital as the first drug. See id. Pentobarbital became
unavailable in 2014. See id. Consequently, Alabama announced in September
2014 that it would begin using midazolam as the first drug in its lethal injection
protocol. See id. The second drug in the protocol has always been either
pancuronium bromide or rocuronium bromide 2, and the third drug has always been
potassium chloride. Id.
At the time Alabama disclosed its intent to use midazolam in 2014, several
Eighth Amendment method-of-execution claims already were pending in the
district court. These claims challenged the substitution of pentobarbital for sodium
thiopental, and specifically alleged that the protocol Alabama had adopted in 2011
violated the Eighth Amendment because pentobarbital was not an adequate
anesthetic. When Alabama switched to midazolam in September 2014, the court
allowed the prisoners in these cases to amend their complaints to assert allegations
specific to midazolam. The district court then stayed these cases pending the
United States Supreme Court’s decision in Glossip v. Gross, 135 S. Ct. 2726
(2015), which squarely raised the constitutionality of Oklahoma’s use of
midazolam in a three-drug lethal injection protocol that is materially
indistinguishable from Alabama’s.
2 Smith does not allege that there is a material difference between pancuronium bromide and rocuronium bromide.
5 Case: 16-17167 Date Filed: 12/07/2016 Page: 6 of 24
The Supreme Court issued the Glossip decision on June 29, 2015. Like the
Alabama prisoners in the Midazolam Litigation, the Oklahoma prisoners in Glossip
argued that the use of midazolam as the first drug in a three-drug lethal injection
protocol created a constitutionally unacceptable risk of pain during an execution
because midazolam does not render a person insensate to pain. Id. at 2731. The
district court had determined that the prisoners were not entitled to a stay of
execution based on that claim, because they could not establish a likelihood of
success under the Eighth Amendment. Id. The Supreme Court affirmed that ruling
and clarified in its decision that, in order to prevail on an Eighth Amendment
method-of-execution claim, a prisoner must plead and prove that: (1) the
challenged execution method is “sure or very likely to cause serious illness and
needless suffering” and (2) there is “an alternative [method of execution] that is
feasible, readily implemented, and in fact significantly reduces a substantial risk of
severe pain.” Id. at 2737 (quotations and emphasis omitted) (applying Baze v.
Rees, 553 U.S. 35 (2008)).
After Glossip, the district court lifted its stay of the method-of-execution
cases pending in its court and consolidated those cases to form the Midazolam
Litigation. The court directed the lead plaintiff to file an amended complaint to
address Glossip and permitted the parties to conduct additional discovery. In
February 2016, the State filed a motion for summary judgment on the Eighth
6 Case: 16-17167 Date Filed: 12/07/2016 Page: 7 of 24
Amendment claims asserted by the prisoners who at the time of the State’s filing
were part of the Midazolam Litigation. The district court granted summary
judgment to the State on October 31, 2016, but Smith’s claims, which were not
filed until several months after the State moved for summary judgment—and
indeed approximately a year after the Supreme Court decided Glossip and nearly
two years after Alabama announced its current lethal injection drug protocol—
were not addressed in the summary judgment order.
As noted, Smith filed his § 1983 complaint in April 2016. Smith asserted
three claims in his complaint: (1) an Eighth Amendment claim alleging that
Alabama’s lethal injection protocol constituted cruel and unusual punishment
because midazolam would not sufficiently anesthetize him from the painful effects
of the other two drugs in the protocol; (2) an Eighth Amendment claim alleging
that Alabama’s consciousness assessment, performed after administration of the
midazolam, was inadequate to ensure he would be properly anesthetized prior to
the injection of the second and third drugs, and (3) a First, Eighth, and Fourteenth
Amendment claim alleging that Alabama’s refusal to allow counsel witnessing his
execution access to a cell or landline phone unconstitutionally restricted his access
to the courts. Smith’s Eighth Amendment midazolam claim was materially
indistinguishable from the claims addressed in the district court’s October 31, 2016
summary judgment order, and even alleged the same “feasible, readily available”
7 Case: 16-17167 Date Filed: 12/07/2016 Page: 8 of 24
alternatives to Alabama’s protocol: (1) a single dose of sodium thiopental; (2) a
single dose of pentobarbital; and (3) a single dose of 500 milligrams of
midazolam. 3
On May 31, 2016, the State moved to dismiss Smith’s § 1983 claims as
untimely under Federal Rule of Civil Procedure 12(b)(6). In support of its motion,
the State argued that Smith’s Eighth Amendment midazolam claim was a general
challenge to three-drug protocols, which could have been raised at any time after
Alabama began using a three-drug protocol in its executions in 2002 and was thus
barred by the applicable two-year statute of limitations. According to the State,
Smith’s consciousness assessment and access to the courts claims likewise
challenged long-standing policies and were filed outside of the limitations period.
On September 14, 2016, the Alabama Supreme Court set Smith’s execution
date for December 8, 2016. Nevertheless, Smith did not file a motion to stay his
execution in the district court. In light of the impending execution, the district
court ordered Smith on November 9, 2016 to show cause why the State should not
execute him using the alternative method pled in his complaint of a single 500-mg
dose of midazolam. Smith refused to consent to that method of execution unless
the court first found Alabama’s current protocol unconstitutional and permanently
3 Smith claimed in briefing to the district court on November 16, 2016 that 500 milligrams is a typographical error and that he meant 2500 milligrams, but he did not move to amend his complaint.
8 Case: 16-17167 Date Filed: 12/07/2016 Page: 9 of 24
enjoined it, and until he and the court had also approved an alternate protocol for
execution with a single dose of midazolam that ensured “all necessary equipment
and sufficient training” and accounted for “the fact that a percentage of the
population reacts paradoxically to midazolam by becoming agitated rather than
sedated.”
On November 18, 2016, the district court granted the State’s motion to
dismiss Smith’s claims as untimely. Smith appealed the dismissal to this Court,
and, at Smith’s request, the Court ordered an expedited briefing schedule. In
conjunction with his appeal, Smith filed a motion to stay his December 8, 2016
execution. Because the merits of Smith’s appeal and the question whether he is
entitled to a stay of execution are intertwined, we consider those issues together.
STANDARDS OF REVIEW
We review the district court’s dismissal of Smith’s complaint under Federal
Rule 12(b)(6) de novo and apply the same standard as the district court. Fla. Int’l
Univ. Bd. of Tr. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016). In
assessing the merits of a claim under Rule 12(b)(6) claim, we assume the factual
allegations set forth in the complaint are true and construe them in the light most
favorable to the plaintiff. Id. “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations
9 Case: 16-17167 Date Filed: 12/07/2016 Page: 10 of 24
omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Dismissal under Rule 12(b)(6) is appropriate on statute of limitations grounds if it
is apparent from the face of the complaint that the claims asserted are time-barred.
See Carmichael v. Nissan Motor Acceptance Corp., 291 F.3d 1278, 1279 (11th Cir.
2002).
In order to obtain a stay of his scheduled execution, Smith must show that
“(1) he has a substantial likelihood of success on the merits [of his Eighth
Amendment claim]; (2) he will suffer irreparable injury unless the injunction
issues; (3) the stay would not substantially harm the other litigant; and (4) if issued,
the injunction would not be adverse to the public interest.” DeYoung v. Owens,
646 F.3d 1319, 1324 (11th Cir. 2011). See also Muhammad v. Sec’y, Fla. Dep’t of
Corr., 739 F.3d 683, 689 (11th Cir. 2014) (denying a stay of execution where the
prisoner failed to meet this standard). The burden is on Smith to establish each of
these elements. Mann v. Palmer, 713 F.3d 1306, 1310 (11th Cir. 2013).
DISCUSSION
I. Smith’s Eighth Amendment Midazolam Claim
A. Timeliness
A § 1983 claim is a tort action that is subject to the statute of limitations that
governs personal injury claims in the state where the § 1983 action is filed.
DeYoung, 646 F.3d at 1324. The applicable limitations period in Alabama is two
10 Case: 16-17167 Date Filed: 12/07/2016 Page: 11 of 24
years. See Ala. Code § 6-2-38 (establishing a two-year statute of limitations for
personal injury actions). An Eighth Amendment method-of-execution claim
accrues on the later of “the date on which [the prisoner’s] state review is complete,
or the date on which the [prisoner] becomes subject to a new or substantially
changed execution protocol.” DeYoung, 646 F.3d at 1325. Smith’s state review
was complete in 2000. He subsequently became subject to a “new or substantially
changed execution protocol” when Alabama adopted lethal injection as its
preferred method of execution in July 2002. Absent any other “substantial change”
to Alabama’s protocol, the two-year limitations period on Smith’s method-of-
execution claim expired in July 2004, approximately twelve years before he filed
his complaint in this case.
Smith argues that the limitations period was reset when Alabama began
using midazolam as the first drug in its protocol in September 2014, and that his
claim, filed within two years of this substitution, is thus timely. We rejected a
similar argument in Brooks v. Comm’r, Ala. Dep’t of Corr., 810 F.3d 812, 822–24
(11th Cir. 2016). In Brooks, an Alabama prisoner whose claim was part of the
Midazolam Litigation appealed the district court’s denial of his motion for a stay of
execution based on the same Eighth Amendment midazolam claim that is asserted
by Smith and other Midazolam Litigation prisoners. See id. at 819. We affirmed
the district court’s denial of a stay, in part because we determined that the
11 Case: 16-17167 Date Filed: 12/07/2016 Page: 12 of 24
prisoner’s claim was time-barred. Id. at 822. We noted in our decision that a
“substantial change” sufficient to reset the limitations period “is one that
significantly alters the method of execution.” Id. (citing Gissendaner v. Comm’r,
Ga. Dep’t of Corr., 779 F.3d 1275, 1282 (11th Cir. 2015) (quotation marks
omitted). Ultimately, we were “unpersuaded” by the prisoner’s claim that
Alabama’s switch to midazolam as the first drug in its protocol constituted such a
“substantial change” for two reasons: (1) the prisoner failed to show that
midazolam was any less effective than pentobarbital or sodium thiopental “in
numbing him against the alleged risk of pain posed by the administration of the
second and third drugs, which have remained essentially unchanged since 2002”
and (2) the Supreme Court and “numerous other courts” have concluded that
midazolam is an adequate substitute for pentobarbital as the first drug in a three-
drug lethal injection protocol. Id. at 823.
The rationale of Brooks applies equally to Smith’s Eighth Amendment
midazolam claim, which is virtually identical to the claim asserted by the prisoner
in Brooks. Smith does not point to, nor do we see, any material difference between
the claims. Most significantly, Smith, like the prisoner in Brooks, failed to allege
how the substitution of midazolam is a “substantial change” in Alabama’s method
of execution sufficient to reset the limitations period. See Gissendaner, 779 F.3d
at 1282. As we recognized in Brooks, the Supreme Court and this Court have
12 Case: 16-17167 Date Filed: 12/07/2016 Page: 13 of 24
indicated that the substitution of midazolam for pentobarbital does not significantly
alter a three-drug lethal injection protocol because, similar to pentobarbital,
midazolam “render[s] a prisoner unconscious and insensate during the remainder
of a three-drug procedure.” Brooks, 810 F.3d at 823 (citing Glossip, 135 S. Ct. at
2734–35).
In addition, we agree with the district court that Smith’s allegations pose a
general challenge to the use of a three-drug protocol—and the pain caused by the
paralytic and the potassium chloride used as the last two drugs in the protocol—
rather than to the use of midazolam per se. The gist of Smith’s claim is that the
State’s “continued use of a three-drug protocol . . . is unjustified in light of the fact
that there are ready and available alternatives which would significantly reduce the
substantial risk of severe pain.” In support of the claim, Smith cites (1) the fact
that fourteen states have adopted or announced plans to adopt a single-drug
protocol and (2) studies recommending that states discontinue three-drug protocols
and instead use a single large dosage of a barbiturate because execution team
members “typically are not medically trained personnel and administering three
drugs creates greater opportunity for error” that would be ameliorated by a one-
drug method. Alabama’s switch to midazolam has no bearing on these allegations,
which Smith could have asserted any time after Alabama instituted lethal injection
per a three-drug protocol in July 2002.
13 Case: 16-17167 Date Filed: 12/07/2016 Page: 14 of 24
Smith nevertheless argues that the district court lacked the authority to
dismiss his claim without first holding an evidentiary hearing. The question
whether a significant change has occurred in a state’s execution method is
generally a fact-dependent inquiry. Arthur v. Thomas, 674 F.3d 1257, 1260 (11th
Cir. 2012). However, Smith’s allegations concerning midazolam are materially
indistinguishable from the allegations that we rejected as untimely in Brooks. As
such, an evidentiary hearing was not required for the district court to rule on the
timeliness issue in this case. See Gissendaner, 779 F.3d at 1282 n.8 (“[A] court
may dismiss a complaint as untimely—without an evidentiary hearing or
discovery—if the allegations and evidence presented are materially the same as
those presented in a previous case in which the denial of relief was affirmed.”).
See also Mann, 713 F.3d at 1314 (clarifying that a district court may dismiss a
method of execution claim on statute of limitations grounds without taking
evidence if a plaintiff fails to plead a plausible basis for finding that a significant
change occurred). Thus, we affirm the district court’s timeliness ruling.
B. Likelihood of Success on the Merits For Purposes of Smith’s Motion for a Stay
To receive a stay of execution, Smith must show a likelihood of succeeding
on the merits of his challenge to Alabama’s method of execution. Even if we were
to assume that Smith’s complaint was timely filed, it is still apparent from the face
of the complaint that Smith is not likely to succeed on the merits of his Eighth
14 Case: 16-17167 Date Filed: 12/07/2016 Page: 15 of 24
Amendment midazolam claim. As discussed above, to prevail on his claim, Smith
must plead and prove that: (1) Alabama’s use of midazolam in its execution
protocol entails a “substantial risk of severe pain” and (2) there is a “known and
available alternative method of execution” that significantly reduces the risk.
Glossip, 135 S. Ct. at 2731. Again, the burden is on Smith to satisfy each of these
prongs. See Brooks, 810 F.3d at 820 (“As the Supreme Court explained, it is [the
prisoner’s] burden ‘to identify an alternative that is feasible, readily implemented,
and in fact significantly reduce[s] a substantial risk of severe pain.’”) (quoting
Glossip, 135 S. Ct. at 2737).
As to the first prong, this Court and the Supreme Court have rejected the
proposition—fundamental to Smith’s claim—that the 500-milligram dose of
midazolam administered as the first drug in Alabama’s protocol does not
sufficiently anesthetize a prisoner and thus subjects him to an unconstitutionally
substantial risk of severe pain. See Glossip, 135 S. Ct. at 2739–40 (noting that
“numerous courts have concluded that the use of midazolam as the first drug in a
three-drug protocol is likely to render an inmate insensate to pain that might result
from administration of the paralytic agent and potassium chloride”); Brooks, 810
F.3d at 823 (“[T]he very three-drug protocol approved by the Supreme Court in
Glossip is the same one Alabama will use here.”). These decisions make it clear
that it is not just unlikely that Smith will be able to make the showing required by
15 Case: 16-17167 Date Filed: 12/07/2016 Page: 16 of 24
the first prong of Glossip, but in fact it is virtually certain that he will be unable to
do so.
Likewise, it is apparent from the face of the complaint4 that Smith most
likely will not be able to show that there is a “feasible,” “readily available”
alternative method of execution that would substantially reduce the risk of an
unconstitutional level of pain as required by the second prong of Glossip. See
Brooks, 810 F.3d at 818–22. The alternatives proposed by Smith include: (1) a
single dose of pentobarbital; (2) a single dose of sodium thiopental; and (3) a
single dose of 500 milligrams of midazolam. As this Court has noted many times,
and the Supreme Court reiterated in Glossip, both pentobarbital and sodium
thiopental are unavailable for use in executions as a result of the advocacy of death
penalty opponents. See id.; Glossip, 135 S. Ct. at 2738. If that were not the case,
this litigation would not be before us today.
As to the single-dose midazolam alternative, Smith does not distinguish his
proposal from the single-dose midazolam alternative that we concluded in Brooks
was legally insufficient to meet the second prong of Glossip. See Brooks, 810 F.3d
at 822 (finding “no likelihood . . . that a heretofore untested lethal injection
protocol involving only midazolam is materially safer” than Alabama’s current 4 Smith makes a facial challenge to Alabama’s method of execution; notably, he makes no “as applied” challenge, as did the prisoner in Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir. Nov. 2, 2016). Specifically, unlike Arthur, Smith does not allege any health issues unique to him. Instead like Glossip and Brooks, he merely challenges the use of a three-drug protocol for any person being executed.
16 Case: 16-17167 Date Filed: 12/07/2016 Page: 17 of 24
protocol). Like the prisoner in Brooks, Smith does not allege that a midazolam-
only protocol has ever been used in an execution and his allegations about the
“paradoxical effect” of midazolam undercut his claim that single-dose midazolam
is a “known, readily implementable, and materially safer lethal injection
alternative.” Id. at 821–22. Moreover, Smith’s expert Dr. Randall Tackett 5
acknowledges in a report attached to Smith’s complaint that there is a “paucity of
information regarding lethal concentrations of midazolam.” Dr. Tackett’s
statement affirmatively shows that single-dose midazolam is not a “known”
alternative that “in fact significantly reduces a substantial risk of severe pain” as
required by Glossip. 135 S. Ct. at 2737.
The district court relied on all of the above reasons in granting summary
judgment to the State as to the lead plaintiff and several other prisoners who joined
the Midazolam Litigation prior to Smith and who asserted materially
indistinguishable Eighth Amendment midazolam claims. After considering the
evidence presented by the prisoners concerning the proposed alternatives, the court
concluded that (1) neither pentobarbital nor sodium thiopental is available to
Alabama for use in executions and (2) single-dose midazolam is not “a known and
available alternative method of execution that would entail a significantly less
severe risk” than Alabama’s current protocol as required by Glossip. The court
5 Dr. Tackett, a pharmacologist and toxicologist, is a professor at the University of Georgia College of Pharmacy.
17 Case: 16-17167 Date Filed: 12/07/2016 Page: 18 of 24
noted that the uncertainty regarding the efficacy of midazolam as a single-dose
lethal injection drug in Dr. Tackett’s expert report had not been cleared up by Dr.
Tackett’s deposition, in which he could merely “guess” that if midazolam were
used as the sole agent for lethal injection, he would use the dose indicated in the
one published peer-reviewed article on the subject that extrapolates a proposed
dose of between 2500 and 3750 based on animal studies. The court noted that Dr.
Tackett’s report and opinion failed to support, and in fact undermined, the
prisoners’ claim that a one-drug protocol using midazolam would result in
significantly less risk of substantial pain than Alabama’s current protocol.
In his brief motion for a stay of execution, Smith does not address either of
the above issues nor does he explain how his Eighth Amendment midazolam claim
can be distinguished from similar claims that have been rejected by the Supreme
Court, this Court, and many other courts. Accordingly, Smith has not met his
burden to show that a stay of execution is warranted in this case.
II. Smith’s Eighth Amendment Consciousness Assessment Claim
Smith’s Eighth Amendment consciousness assessment claim also is time-
barred. In support of this claim, Smith alleges that the assessment to ensure that a
prisoner is unconscious after the administration of the first drug in the protocol—
and prior to administration of the second and third drugs—is performed by a
correctional officer who lacks the training of an anesthesiologist and does not use
18 Case: 16-17167 Date Filed: 12/07/2016 Page: 19 of 24
the medical devices ordinarily used to monitor the consciousness of a person
undergoing anesthesia for a medical procedure. According to Smith, these
deficiencies result in an inadequate procedure for assessing anesthetic depth and
raise a risk of pain during an execution severe enough to violate the Eighth
Amendment.
Smith does not dispute that Alabama implemented the consciousness
assessment procedure in 2007. See Arthur, 674 F.3d at 1264 n.1 (Hull, J.,
dissenting) (“In 2007, Alabama’s protocol was modified to add an additional
procedural safeguard, namely, a consciousness assessment after the administration
of the first drug.”). He does not allege that the method of assessing consciousness,
or the training and qualifications of the correctional staff who perform the
assessment, have changed in any way since the procedure was implemented. Thus,
all of Smith’s allegations concerning Alabama’s consciousness assessment
procedure could have been raised in 2007 and were time-barred as of 2009.6
Contrary to Smith’s argument, his consciousness assessment claim was not
revived by evidence attached to his complaint showing that Christopher Brooks—
the prisoner whose claim we denied in Brooks and who was executed using
Alabama’s current protocol on January 21, 2016—opened his left eye during the
6 The lead plaintiff in the Midazolam Litigation asserted a similar constitutional challenge to Alabama’s consciousness assessment procedure in April 2012. At the very latest, then, the statute of limitations expired on Smith’s consciousness assessment claim in April 2014, two years prior to when Smith asserted the claim.
19 Case: 16-17167 Date Filed: 12/07/2016 Page: 20 of 24
execution. Brooks’s execution did not involve any change, much less a significant
change, to Alabama’s consciousness assessment procedure that Smith challenges
in his § 1983 claim. And the fact that Brooks opened one eye during his execution,
without more, falls far short of a showing of either a substantial risk of serious pain
or a significant change in Alabama’s method of execution. See Glossip, 135 S. Ct.
at 2732–33 (recognizing that “some risk of pain is inherent in any method of
execution” and that “the Constitution does not require the avoidance of all risk of
pain”).
III. Smith’s Right of Access Claim
Smith’s final claim is that Alabama’s refusal to allow attorneys witnessing
an execution to have access to a cell phone or a landline denies him access to the
courts in violation of the First, Eighth, and Fourteenth Amendments. As with his
other claims, Smith fails to allege that any significant change in Alabama’s policy
as to cell phone or landline access has occurred within the last two years. The
State cites a copy of the policy prohibiting cell phones and other electronic
equipment for visitors that was posted online in August 2012. Even assuming the
policy did not go into effect until that date, Smith’s April 2016 claim concerning
the policy would be time-barred. Smith again attempts to rely on the fact that
Christopher Brooks opened one eye during his execution in January 2016, but that
20 Case: 16-17167 Date Filed: 12/07/2016 Page: 21 of 24
fact does not establish a significant change in Alabama’s protocol sufficient to
restart the limitations period.
Smith’s right of access claim is also unlikely to succeed on the merits.
Smith does not cite, and the Court has not found, any precedent suggesting that
Alabama’s policy prohibiting witnesses from having cell phone or landline access
infringes on the First, Eighth, or Fourteenth Amendments. Smith cites a federal
district court decision holding that an inmate had a right to have his counsel view
his execution with access to a telephone, but that decision was later vacated by the
Sixth Circuit. See Coe v. Bell, 89 F. Supp. 2d 962, 967 (M.D. Tenn. 2000),
vacated by Coe v. Bell, 230 F.3d 1357 (6th Cir. 2000) (vacating district court’s
order granting injunctive relief as moot because the prisoner had been executed).
Moreover, to state a valid right-of-access claim, Smith would have to establish an
actual injury. See Lewis v. Casey, 518 U.S. 343, 351–52 (1996) (explaining that
the actual-injury requirement for a right-of-access-claim stems from “the doctrine
of standing, a constitutional principle that prevents courts of law from undertaking
tasks assigned to the political branches”). Smith’s request for access to a cell
phone or landline is based on the possibility that something might go wrong during
his execution, which does not qualify as an “actual injury.” See id. at 351
(explaining that a prisoner must show that the “alleged shortcomings . . . hindered
his efforts to pursue a legal claim”). In short, there is no authority that would
21 Case: 16-17167 Date Filed: 12/07/2016 Page: 22 of 24
permit this Court to intrude into a state-administered judicial execution in the
manner proposed by Smith in his right of access claim.
IV. Additional Timeliness Concerns
With regard to our denial of Smith’s motion for a stay of his execution
scheduled for December 8, 2016, we note further that our precedent requires us to
“be sensitive to the State’s strong interest in enforcing its criminal judgments
without undue interference from the federal courts.” Jones v. Allen, 485 F.3d 635,
638 (11th Cir. 2007). To that end, there is a strong equitable presumption against
the grant of a stay where a claim could have been brought at such a time as to
allow consideration of the merits without requiring a stay. Id. That presumption
comes into play here, where Smith’s direct appeal concluded in 2000 and he
became subject to lethal injection as a method of execution in 2002, but he did not
challenge Alabama’s method of execution until April 2016.
Even when Alabama added midazolam to its three-drug protocol in
September 2014, Smith did not move quickly to challenge the protocol. Neither
did Smith immediately act after the following significant events: (1) the issuance
of the Glossip ruling addressing a materially indistinguishable midazolam protocol
in June 2015, (2) the execution of Christopher Brooks per the midazolam protocol
in January 2016, and (3) the State’s motion on February 26, 2016 asking the
Alabama Supreme Court to set an execution date for Smith. By the time Smith
22 Case: 16-17167 Date Filed: 12/07/2016 Page: 23 of 24
filed his complaint, the Midazolam Litigation had been pending for several years,
the parties to the litigation had completed extensive discovery, and the State had
filed a motion for summary judgment that ultimately was granted as to the
prisoners who were part of the litigation when the motion was filed but that did not
address Smith’s claim because of his delay in filing it. Smith has offered no reason
for the delay, but if he truly had intended to challenge Alabama’s lethal injection
protocol, rather than simply delay his execution, “he would not have deliberately
waited to file suit until a decision on the merits would be impossible without entry
of a stay or an expedited litigation schedule.” Grayson v. Allen, 491 F.3d 1318,
1326 (11th Cir. 2007). See also Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d
1288, 1297–98 (11th Cir. 2016) (“While each death case is very important and
deserves our most careful consideration, the fact that [the prisoner] has petitioned
us for a stay of execution only at the very last moment, and without adequate
explanation, also suggests to us that the equities do not lie in his favor.”).
Moreover, Smith never filed a stay of execution in the district court and did
not move for a stay of execution in this Court until November 18, 2016. Based on
Smith’s reply brief in support of his appeal, his delay in seeking a stay in the
district court appears to have been a strategic decision to control the procedural
posture of the case when it reached this Court and the standard of review
applicable to the district court’s rulings. Smith’s refusal to seek a stay of execution
23 Case: 16-17167 Date Filed: 12/07/2016 Page: 24 of 24
earlier in the district court is one more fact suggesting “that the real purpose behind
his claim is to seek a delay of [his] execution, not merely to effect an alteration of
the manner in which it is carried out.” Jones, 485 F.3d at 640. As we emphasized
in Brooks, “federal courts can and should protect States” from such “dilatory . . .
suits.” Brooks, 810 F.3d at 824.
CONCLUSION
For all of the above reasons, we AFFIRM the district court’s ruling
dismissing Smith’s § 1983 claims as time-barred and we DENY Smith’s motion
filed in this Court for a stay of his execution scheduled for December 8, 2016.