[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 20, 2011
No. 11-13235
JOHN LEY
________________________ CLERK
D. C. Docket No. 1:11-cv-02324-SCJ
ANDREW GRANT DEYOUNG,
Plaintiff-Appellant,
versus
BRIAN OWENS, Commissioner,
Georgia Department of Corrections,
CARL HUMPHREY, Warden,
Georgia Diagnostic and Classification Prison,
OTHER UNKNOWN EMPLOYEES AND AGENTS,
Georgia Department of Corrections,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 20, 2011)
Before DUBINA, Chief Judge, EDMONDSON and HULL, Circuit Judges.
HULL, Circuit Judge:
Georgia death-row inmate Andrew DeYoung brutally murdered his mother,
his father, and his fourteen year old sister, Sarah, and was convicted and sentenced
to death. See, e.g., DeYoung v. Schofield, 609 F.3d 1260, 1262 (11th Cir. 2010),
cert. denied, 131 S. Ct. 1691 (2011).1
DeYoung is scheduled to be executed by lethal injection at 7:00 p.m. on
Wednesday, July 20, 2011. On Friday, July 15, 2011, DeYoung filed a 42 U.S.C.
§ 1983 action alleging that the State of Georgia’s method of lethal execution will
violate his Eighth Amendment right to be free from cruel and unusual punishment
and his Fourteenth Amendment right to equal protection. DeYoung moved for a
temporary restraining order (“TRO”) and stay of execution, as well as further
declaratory and injunctive relief seeking to prevent the State from executing him
using its current lethal injection protocol.
On Monday, July 18, 2011, the State moved to dismiss, arguing that
DeYoung’s claims are barred by the statute of limitations and fail to state a claim
1
DeYoung’s convictions and death sentences were upheld on direct appeal and the United
States Supreme Court denied certiorari review. DeYoung v. State, 493 S.E.2d 157 (Ga. 1997),
cert. denied, 523 U.S. 1141, 118 S. Ct. 1848 (1998). DeYoung unsuccessfully attacked his
convictions and death sentences in state and federal habeas proceedings. See generally DeYoung
v. Schofield, 609 F.3d at 1275-82, 1291.
2
upon which relief can be granted. After holding an evidentiary hearing on
Tuesday, July 19, 2011, the district court entered a thorough 28-page order on July
20, 2011, denying DeYoung’s motions for a TRO and stay of execution and
granting the State’s motion to dismiss. Thereafter, the district court also denied
DeYoung’s motion for stay of execution pending appeal and separate motion to
alter judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
DeYoung appealed and filed a motion for a stay of execution in this Court.
After review, we deny DeYoung’s motion for a stay of execution.
I. BACKGROUND
A. Georgia’s Lethal Injection Protocol
Georgia law provides that “[a]ll persons who have been convicted of a
capital offense and have had imposed upon them a sentence of death shall suffer
such punishment by lethal injection,” which it defines as “the continuous
intravenous injection of a substance or substances sufficient to cause death into
the body of the person sentenced to death until such person is dead.” O.C.G.A.
§ 17-10-38(a) (2000).
Under the lethal injection protocol promulgated by the Georgia Department
of Corrections (“GDOC”), death-sentenced prisoners are administered a
succession of three chemicals in the following order: (1) 5,000 milligrams of
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pentobarbital, an anesthetic that is administered to render the inmate unconscious;
(2) 50 milligrams of pancuronium bromide, a paralytic agent; and (3) 120
milliequivalents of potassium chloride, which induces cardiac arrest, causing the
inmate’s death.
The protocol calls for an IV nurse to examine the inmate to ensure he is
unconscious before the pancuronium bromide is administered. If the inmate is not
unconscious, the protocol requires GDOC staff to repeat the administration of
pentobarbital and subsequent consciousness check until the inmate is deemed to
be unconscious.
Until May 13, 2011, the anesthetic used was sodium thiopental (a/k/a
sodium pentothal). Lack of sodium thiopental availability led Georgia on May 13,
2011 to switch to the use of pentobarbital as the anesthetic in its lethal injection
protocol.
B. DeYoung’s Claims
DeYoung’s challenge to the State’s method of execution is two-pronged.
First, he contends the GDOC’s lethal injection protocol violates the Eighth
Amendment’s prohibition of cruel and unusual punishment. Specifically,
DeYoung alleges, among other things, that the use of pentobarbital as an
anesthetic poses a substantial risk of serious harm to him because: (1)
4
pentobarbital has been insufficiently tested for induction of anesthetic coma in
fully conscious persons, and (2) in prior executions using pentobarbital, the drug
did not painlessly anesthetize the prisoners.
Second, DeYoung contends the GDOC’s lethal injection protocol, as written
and as administered in practice, violates his right to equal protection under the
Fourteenth Amendment because: (1) the written protocol contains gaps in the
execution procedure that the GDOC fills in on an ad hoc basis, leading to disparate
treatment for different inmates; and (2) the GDOC deviates from the written
protocol, similarly leading to disparate treatment for different inmates. The State
promptly filed a motion to dismiss on numerous grounds, including the statute of
limitations and failure to state a claim.
C. District Court’s Order
In granting the State’s motion to dismiss, the district court found: (1)
DeYoung’s claims accrued in 2001, when Georgia adopted lethal injection as its
method of execution; (2) Georgia’s substitution of pentobarbital for sodium
thiopental did not constitute a significant alteration to the protocol that would re-
set the limitations period; (3) GDOC’s alleged deviations from the written
protocol began no later than May 2008; and (4) DeYoung’s two-year limitations
period expired eight years before he filed this action.
5
Alternatively, even if the statute of limitations did not bar his § 1983 action,
the district court concluded that DeYoung failed to state a claim upon which relief
could be granted. As to the Eighth Amendment claim, the district court found,
among other things: (1) DeYoung’s evidence failed to show that the
administration of pentobarbital inflicts serious harm; (2) DeYoung has not proven
that former inmate Roy Blankenship (who on June 23, 2011 was executed by the
State of Georgia using pentobarbital as the anesthetic) suffered pain or serious
harm; (3) that DeYoung’s expert “failed to provide a medical explanation for why
pentobarbital might have caused Blankenship pain” and “[t]o the contrary, Dr.
Waisel testified that a patient will not feel pain at the moment when a drug is
introduced intravenously unless it is a drug, such as potassium chloride, which
causes a burning sensation”; (4) DeYoung presented no evidence indicating a
5,000-milligram dose of pentobarbital fails to cause unconsciousness; (5) a
consciousness check was performed on Roy Blankenship prior to injection of the
second drug pancuronium bromide as required by Georgia’s legal injection
procedure; and (6) executions in Georgia do not proceed with the second drug
until the inmate is unconscious and “DeYoung[’s] execution cannot proceed until
he is unconscious.” Thus, DeYoung did not show that Georgia’s use of
pentobarbital creates a substantial risk of serious harm to inmates.
6
As to DeYoung’s Fourteenth Amendment claim, the district court found: (1)
there was no support for “DeYoung’s novel proposition” that the Equal Protection
Clause requires the State to “produce a written protocol that is detailed enough to
insure that every execution is precisely identical”; (2) the “deviations” from the
written protocol of which DeYoung complains (including the use of nurses to
insert IVs, the presence of two nurses instead of one, performance of numerous
consciousness checks, and checks for IV infiltration or leakage) are consistent
with Georgia’s written protocol and “enure to the benefit” of inmates; and (3) the
benign “deviations” are rationally related to the State’s interest in safeguarding the
execution process. Thus, DeYoung did not show an equal protection violation.
The district court denied DeYoung’s request for a TRO and stay of
execution because “he has absolutely no likelihood of success on the merits.”
II. DISCUSSION
On appeal, DeYoung moves this Court for a stay of execution and also
appeals the district court’s denial of a stay.2 A stay of execution is equitable relief
2
We review the district court’s denial of DeYoung’s motions for a TRO and stay of
execution for abuse of discretion. Powell v. Thomas, No. 11-12238, 641 F.3d 1255, 1257 (11th
Cir. May 19, 2011), cert. denied, 131 S. Ct. 2487 (2011); Ingram v. Ault, 50 F.3d 898, 900 (11th
Cir. 1995). “We review the district court’s grant of a motion to dismiss de novo, accepting the
allegations in the complaint as true and construing them in the light most favorable to the
plaintiff.” Powell v. Thomas, No. 11-12613, — F.3d —, 2011 WL 2437498, at *1 (11th Cir.
Jun. 15, 2011).
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which this Court may grant “only if the moving party shows that: (1) he has a
substantial likelihood of success on the merits; (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.” Powell v. Thomas, No. 11-12238, 641 F.3d 1255, 1257 (11th Cir. May
19, 2011), cert. denied, 131 S. Ct. 2487 (2011). We conclude that DeYoung is not
entitled to a stay because he has not demonstrated, among other things, a
substantial likelihood he will succeed on the merits of his claims. DeYoung’s
claims are barred by the statute of limitations and, even if they were timely, they
fail as a matter of law. At a minimum, DeYoung has not established a substantial
likelihood of success on the merits of his claims.
A. Statute of Limitations
Section 1983 claims “are tort actions, subject to the statute of limitations
governing personal injury actions in the state where the § 1983 action has been
brought.” Powell v. Thomas, No. 11-12613, — F.3d —, 2011 WL 2437498, at *2
(11th Cir. Jun. 15, 2011) (quotation marks omitted).3 Georgia has a two-year
3
We rely on the two Powell opinions throughout this opinion. Henceforth, we refer to the
opinion in case No. 11-12238 as Powell (Williams) because that appeal concerned the claims of
intervenor Jason Oric Williams. We refer to the opinion in case No. 11-12613 as Powell because
that appeal concerned the claims of named plaintiff Eddie D. Powell.
8
statute of limitations for personal injury actions. O.C.G.A. § 9-3-33. The two-
year limitations period begins to run on “the date on which state review is
complete, or the date on which the capital litigant becomes subject to a new or
substantially changed execution protocol,” whichever occurs later. McNair v.
Allen, 515 F.3d 1168, 1174 (11th Cir. 2008).
DeYoung’s state review became complete on May 26, 1998, the date the
United States Supreme Court denied DeYoung’s petition for certiorari on direct
appeal. See DeYoung v. Georgia, 523 U.S. 1141, 118 S. Ct. 1848 (1998).
DeYoung last became subject to a new or substantially changed execution
protocol on October 5, 2001, when the Georgia Supreme Court declared that
execution by electrocution violated the state constitution and directed that “any
future executions of death sentences in Georgia be carried out by lethal injection
in accordance with O.C.G.A. § 17-10-38, as amended.” Dawson v. State, 554
S.E.2d 137, 139 (Ga. 2001). Thus, the two-year statute of limitations began to run
on October 5, 2001, and expired nearly eight years before DeYoung filed this
action.
DeYoung argues that Georgia’s May 13, 2011 substitution of pentobarbital
for sodium thiopental as the anesthetic in its lethal injection protocol resulted in a
“substantially changed execution protocol.” We already rejected an identical
9
claim as to Alabama’s recent switch from sodium thiopental to pentobarbital. See
Powell, 2011 WL 2437498, at *2-4 (rejecting Eighth Amendment challenge to
method of execution on statute of limitations grounds, stating, “this very
argument—that the ADOC’s change from sodium thiopental to pentobarbital, is a
substantial or significant change in the lethal injection protocol—was rejected by a
panel of this Court in Powell (Williams),” and “Powell’s attempts to circumvent
the holding of Powell (Williams) fall flat”); see also Powell (Williams), 641 F.3d
at 1258 (“The replacement of sodium thiopental with pentobarbital does not
constitute a significant alteration in the ADOC’s lethal injection protocol . . . .”).
DeYoung acknowledges the Powell decision is on point, but argues that the
evidence he proffered in this record undermines the premise of Powell. However,
“the mere act of proffering additional reasons not expressly considered previously
will not open the door to reconsideration of the question by a second panel.” Smith
v. GTE Corp., 236 F.3d 1292, 1302 (11th Cir. 2001) (quotation marks and ellipsis
omitted). And in any event, the additional evidence DeYoung proffers does not,
for the reasons set forth below, undermine Powell’s conclusion.
B. Merits of the Claims
1. Eighth Amendment Claim
10
To state an Eighth Amendment claim, DeYoung must “demonstrate that (1)
the State is being deliberately indifferent (2) to a condition that poses a substantial
risk of serious harm to him.” Powell (Williams), 641 F.3d at 1257. In the lethal
injection context, this standard requires an inmate to show “‘an objectively
intolerable risk of harm that prevents prison officials from pleading that they were
subjectively blameless for purposes of the Eighth Amendment.’” Id. (quoting Baze
v. Rees, 553 U.S. 35, 50, 128 S. Ct. 1520, 1531 (2008) (plurality opinion)). “[T]he
risk must be sure or very likely to cause . . . needless suffering.” Baze, 553 U.S. at
50, 128 S. Ct. at 1531 (plurality opinion) (quotation marks omitted). The evidence
DeYoung provides does not satisfy this Eighth Amendment standard.
A significant part of DeYoung’s Eighth Amendment claim in his § 1983
complaint is based on the State of Georgia’s execution of Roy Blankenship on
June 23, 2011. DeYoung largely points to events surrounding the Blankenship
execution as the basis for his Eighth Amendment claim. DeYoung attempts to use
evidence of the Blankenship execution to show two things: (1) that administration
of 5,000 milligrams of pentobarbital to an inmate causes needless suffering in and
11
of itself, and (2) that the pentobarbital dose does not adequately render an inmate
unconscious, thereby leading to needless suffering.4
After hearing testimony by DeYoung’s expert and reviewing multiple
affidavits, the district court found (1) that DeYoung failed to establish that
pentobarbital caused Blankenship any pain during his execution given that
DeYoung’s expert failed to provide a medical explanation for why pentobarbital
might have caused Blankenship pain, or will cause pain in executions; and (2) that,
in any event, DeYoung “has absolutely no likelihood of success on the merits” of
his claims.
As the district court aptly found, DeYoung’s medical expert, David B.
Waisel, M.D., formulated his opinion based on witnesses’ accounts of the
execution and some movement by Blankenship during the initial three minutes at
the start of the execution process. The witnesses disagree about two things: (1) the
type of movement; and (2) whether it occurred before or during the administration
of the pentobarbital.
4
DeYoung also alleges that pentobarbital has not been sufficiently tested for its ability to
cause an anesthetic coma in fully conscious persons. However, DeYoung’s expert candidly
admits he does not know how the State’s dosage of pentobarbital will affect inmates because he
claims there is no way to know. This asserted lack of knowledge obviously cannot satisfy
DeYoung’s burden of affirmatively showing that a substantial risk of serious harm exists. Thus,
DeYoung’s evidence focuses largely on the Blankenship execution.
12
As to the movement, witnesses describe it in very different ways. To some,
Blankenship was just looking up and watching what was occurring, looked at his
left arm (which had an IV saline drip) and then 30 to 60 seconds later looked
toward his right arm where the administration of the pentobarbital was starting.
To others, Blankenship appeared to grimace, or have a startled face, or jerked his
arm twice, or had his mouth open and tried to mouth something.
As to timing, some believe all the movement occurred before the
pentobarbital was started in the IV and others appear to think that it was after the
pentobarbital was started in the IV. In any event, the movement occurred only a
few times and all briefly during a total time period of three minutes. The evidence
undisputedly shows that Blankenship became still and was unconscious before the
second drug was administered.
Even assuming Blankenship’s movement was during the administration of
the pentobarbital or right after, the evidence in this record does not establish a
substantial risk of serious harm from the pentobarbital, or even that Blankenship
necessarily suffered any harm, much less serious harm. First, as the district court
pointed out, “Dr. Waisel entirely failed to provide a medical explanation for why
pentobarbital might have caused Blankenship pain. To the contrary, Dr. Waisel
testified that a patient will not feel pain at the moment when a drug is introduced
13
intravenously unless it is a drug, such as potassium chloride, which causes a
burning sensation.”
Second, the district court noted that Dr. Waisel admitted that “any
‘suffering’ was short lived as it clearly ended within a few minutes—three minutes
at the most—after the pentobarbital was injected.” The Eighth Amendment does
not protect against all harm, only serious harm; and it does not prohibit all risks,
only substantial risks. “Simply because an execution method may result in pain,
either by accident or as an inescapable consequence of death, does not establish
the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and
unusual.” Baze, 553 U.S. at 50, 128 S. Ct. at 1531 (plurality opinion). In any
event, Dr. Waisel was not present at the Blankenship execution; rather, he opines
from the witnesses’ varied descriptions of Blankenship’s movements that those
movements were a sign of “discomfort,” which Dr. Waisel termed “suffering.” Dr.
Waisel acknowledged that no one reported any movement by Blankenship after
the nurse’s consciousness check. Further, Blankenship’s autopsy revealed no
evidence of trauma. The catheters were inside Blankenship’s veins and the veins
were not burst or broken. There was no infiltration of fluid in the soft tissue of the
right arm near the catheter site.
14
Notably too, DeYoung presented no evidence to show that unconsciousness
is not achieved after the complete administration of a 5000-mg dose of
pentobarbital.5
All parties agree that the purpose of the anesthetic in Georgia’s three-drug
lethal injection protocol is to render the inmate unconscious before administration
of the second and third drugs. As the record demonstrates, and the district court
found, a consciousness check was performed on Blankenship after he was
administered the pentobarbital and prior to injection of the second drug
pancuronium bromide, as Georgia’s lethal injection protocol requires. It is clear
that Blankenship’s execution did not proceed to the second drug until after he was
fully unconscious. And as the district court found, DeYoung’s execution, or any
other under the Georgia protocol, cannot proceed until he is unconscious. To the
contrary, Georgia’s protocol specifically provides that GDOC officials will not
administer the pancuronium bromide but will instead administer more
5
In addition to the evidence concerning the Blankenship execution, DeYoung submitted
some evidence regarding the execution of Eddie Powell, who was recently executed in Alabama
using a pentobarbital-pancuronium bromide-potassium chloride protocol. DeYoung’s evidence
about the Powell execution does not change our conclusion. Powell’s attorney, who witnessed
Powell’s execution, testified that about a minute after the Chaplain finished praying with Powell,
Powell (1) lifted his head, (2) looked confused, and (3) clenched his teeth and flexed his neck
muscles as if he were extremely angry or tense or nervous. After about a minute more, Powell
lay back down, closed his eyes, and did not move again. Powell’s counsel did not know at what
time the various chemical were administered.
15
anesthetic—and conduct more consciousness checks—until the inmate has been
shown to be unconscious.
DeYoung has wholly failed to show that pentobarbital, once fully
administered and allowed to act, is ineffective as an anesthetic. As the district
court succinctly found, Georgia’s “use of pentobarbital does not create a
substantial risk of serious harm to inmates.”
2. Fourteenth Amendment Claim6
To state an equal protection claim, DeYoung must show that the State will
treat him disparately from other similarly situated persons. See Amnesty Int’l,
USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009). Because he does not allege
the disparate treatment burdens his fundamental rights or is based on his
membership in a suspect class, DeYoung must show that the disparate treatment is
not rationally related to a legitimate government interest. Leib v. Hillsborough
Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009).
DeYoung’s equal protection claim asserts, essentially, that Georgia’s
written lethal injection protocol is insufficiently specific and thus the GDOC
deviates from it on an ad hoc basis, leading to disparate treatment for different
6
DeYoung does not appear to raise any Fourteenth Amendment arguments in support of
his motion for a stay of execution. Nevertheless, given the gravity of this appeal and out of an
abundance of caution, we address this claim as well.
16
inmates. DeYoung has not shown a substantial likelihood of success on the merits
of this claim.
First, as the district court correctly noted, there is no support for DeYoung’s
“novel proposition” that the Equal Protection Clause requires a written execution
protocol sufficiently detailed to ensure that every execution is performed in a
precisely identical manner. Moreover, our review of the Georgia lethal injection
protocol reveals it to be highly detailed as to nearly every aspect of the execution
process.
Second, the “deviations” DeYoung cites that lead to the disparate treatment
of which he complains are all ways by which the GDOC provides more protection
for an inmate and the execution process than the written protocol provides.7 The
State has a legitimate interest in ensuring that its executions occur in a thorough
manner with maximum inmate safeguards, and the alleged deviations from the
written protocol are rationally related to that interest. DeYoung has not shown a
substantial likelihood of success on his equal protection claim.
III. CONCLUSION
7
These alleged deviations include having two nurses present (whereas the protocol
requires only one), performance of numerous consciousness checks (the protocol requires only
one successful consciousness check before administration of pancuronium bromide), and checks
for IV infiltration or leakage.
17
For all of these reasons, the Court concludes DeYoung has not
demonstrated a substantial likelihood of success on the merits of his claims.
Therefore, the Court denies DeYoung’s motion for a stay of execution in this
Court. The Court also concludes that the district court did not abuse its discretion
in denying a stay and this Court affirms.
MOTION FOR STAY OF EXECUTION DENIED; DISTRICT
COURT’S ORDER DENYING STAY OF EXECUTION AFFIRMED.
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