Gissendaner v. Commissioner, Georgia Department of Corrections

Case: 15-14335 Date Filed: 09/29/2015 Page: 1 of 34

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 15-14335
Non-Argument Calendar
________________________

D.C. Docket No. 1:15-cv-00689-TWT

KELLY RENEE GISSENDANER,

Plaintiff-Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
WARDEN, GEORGIA DIAGNOSTIC 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
________________________

(September 29, 2015)

Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:
 Case: 15-14335 Date Filed: 09/29/2015 Page: 2 of 34

Kelly Gissendaner filed in the United States District Court a 42 U.S.C.

§ 1983 complaint seeking to prevent the State of Georgia from executing her for

the murder of Douglas Gissendaner in 1997. She claims that the execution, which

is scheduled for later today, will violate the Cruel and Unusual Punishment Clause

of the Eighth Amendment for a number of reasons. Earlier this year, we affirmed

the dismissal of a similar complaint by her. Gissendaner v. Comm’r, 779 F.3d

1275, 1284 (11th Cir. 2015).

Gissendaner’s most recent complaint, filed on March 9, 2015, does contain

some variations to her continuing attack on Georgia’s lethal injection protocol.

Those variations and her claim were addressed by the district court in an order and

opinion filed on August 10, 2015. We agree with the reasoning of that order and

opinion and attach a copy of it as part of this opinion. See Appendix A. We also

agree with the district court’s denial of Gissendaner’s motion for reconsideration

and motion for a temporary restraining order and a stay of execution.

We add a few comments of our own to what the district court wrote. First,

Gissendaner’s attorneys ignored the requirements of Federal Rule of Civil

Procedure 8. Instead of filing a complaint that contains “a short and plain

statement of the claim showing that the pleader is entitled to relief,” as Rule

8(b)(2) requires, they filed a document styled “Complaint and Memorandum of

Law.” The rules do not permit combining a memorandum of law with a complaint.

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The result of their ignoring Rule 8 is a document that is anything but a short and

plain statement of a claim. It quotes Camus, numerous newspaper and magazine

articles as well as internet postings, and resorts to hyperbolic language (e.g.,

“There is a name for such a proceeding: a star chamber.”). The district court

would have been well within its discretion to strike the document.

Second, Gissendaner’s position that her Eighth Amendment rights have been

or will be violated cannot be squared with Glossip v. Gross, 135 S. Ct. 2726

(2015). As the district court explained:

The Supreme Court has specifically “outlined what a prisoner must
establish to succeed on an Eighth Amendment method-of-execution
claim.” A plaintiff “cannot successfully challenge a method of
execution unless [she] establish[es] that the method presents a risk
that is sure or very likely to cause serious illness and needless
suffering, and give rise to sufficiently imminent dangers.” Thus, “[t]o
prevail on such a claim, there must be a substantial risk of serious
harm, an objectively intolerable risk of harm that prevents prison
officials from pleading that they were subjectively blameless for
purposes of the Eighth Amendment.” In addition, the plaintiff “must
identify an alternative that is feasible, readily implemented, and in fact
significantly reduce[s] a substantial risk of severe pain.”

Appendix A at 18-19 (citations to Glossip omitted).

The Supreme Court has held 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.” Glossip, 135 S. Ct. at 2733. What the Constitution requires is

avoidance of “a substantial risk of serious harm, an objectively intolerable risk of
3
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harm.” Id. at 2737 (quotation marks omitted). An “objectively intolerable” risk, in

this context, means that “prisoners must identify an alternative that is feasible,

readily implemented, and in fact significantly reduces a substantial risk of severe

pain.” Id. (quotation marks omitted). The allegations Gissendaner has pleaded

concerning the events of March 2, 2015, which is the basis of her complaint, do not

evidence, much less establish, that she faces “a substantial risk of serious harm.”

To the contrary, the allegations that those charged with carrying out her previously

scheduled execution stopped it out of a concern that there might be a problem with

the lethal injection drug, evidences exactly the opposite. The allegations show that

the defendants were cautious and took steps to avoid a substantial risk of serious

harm.

To put it in Iqbal and Twombly terms, Gissendaner has failed to plead

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). Although it is not a

“probability requirement,” Iqbal and Twombly’s plausibility standard nonetheless

“asks for more than a sheer possibility” that the plaintiff’s allegations are true.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). “[A] plaintiff

cannot rely on ‘naked assertions devoid of further factual enhancement.’” Franklin

v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (quoting Iqbal, 556 U.S. at 678,

129 S. Ct. at 1949).

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Third, the document Gissendaner filed as a complaint does not allege the

other element of an Eighth Amendment execution protocol claim, which is “an

alternative that is feasible, readily implemented, and in fact significantly reduces a

substantial risk of severe pain.” Glossip, 135 S. Ct. at 2733 (quotation marks

omitted). The document does not even mention an alternative method or protocol

or acknowledge the requirement that there be one.

We respectfully disagree with our dissenting colleague’s view that the

readily available alternative requirement of Baze v. Rees, 553 U.S. 35, 128 S. Ct.

1520 (2008) and Glossip does not apply to Gissendaner’s claim on the ground that

this is an as-applied challenge instead of a facial challenge. To begin with, there is

no real difference between the nature of the challenges in Baze and Glossip and the

challenge here. The plaintiffs in Baze, for example, did not contend that lethal

injection in general or the three-drug protocol used by Kentucky in particular was

facially unconstitutional. As the Supreme Court explained in that case:

Petitioners do not claim that lethal injection or the proper
administration of the particular protocol adopted by Kentucky by
themselves constitute the cruel or wanton infliction of pain. Quite the
contrary, they concede that “if performed properly,” an execution
carried out under Kentucky's procedures would be “humane and
constitutional.” Brief for Petitioners 31. That is because, as counsel
for petitioners admitted at oral argument, proper administration of the
first drug, sodium thiopental, eliminates any meaningful risk that a
prisoner would experience pain from the subsequent injections of
pancuronium and potassium chloride. See Tr. of Oral Arg. 5; App.

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493–494 (testimony of petitioners’ expert that, if sodium thiopental is
“properly administered” under the protocol, “[i]n virtually every case,
then that would be a humane death”).
Instead, petitioners claim that there is a significant risk that the
procedures will not be properly followed—in particular, that the
sodium thiopental will not be properly administered to achieve its
intended effect—resulting in severe pain when the other chemicals are
administered.

Baze v. Rees, 553 U.S. at 49, 128 S. Ct. at 1530 (emphasis added).

Similarly, in the present case, Gissendaner does not claim that when the

proper procedures for obtaining, storing, and using pentobarbital are followed, it

will be ineffective and cause cruel or wanton infliction of pain. Instead, she

challenges the way that Georgia obtains, stores, and uses pentobarbital, which is

similar to the challenges that Baze mounted against Kentucky’s protocol. In that

case the allegations were that there was a risk of improper administration of the

drug because of the difficulty of compounding the solution, the possibility of an

improper placement of catheters, and the possibility of an improper rate of

injection. Baze, 553 U.S. at 54, 128 S. Ct. 1533. If the challenge in this case to

Georgia’s protocol is an as applied one, so was the one in Baze, and it was in Baze

that the Supreme Court announced the readily available alternative requirement.

What Gissendaner is ultimately seeking is to force Georgia to change its

procedures for obtaining, storing, and using pentobarbital which will, as a practical

matter, force it to change its lethal injection protocols, and that is the same type of

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relief that the plaintiffs sought in Baze and Glossip. Not only that, but there is no

logical reason why there should be a readily available alternative requirement in

facial challenges to lethal injection protocols but not to as-applied challenges to

them. 1

Finally, it is noteworthy that the lethal injection drug that Georgia uses in its

single-drug protocol is pentobarbital, which, the Supreme Court has recognized,

opponents to capital punishment have made largely unavailable through open

channels. Glossip, 135 S.Ct. at 2733. To require, as Gissendaner is seeking, that

Georgia open up about its source of pentobarbital would result in the drug

becoming completely unavailable for use in executions, even though its use does

not violate the Eighth Amendment. See id.

The judgment dismissing the complaint and all attendant orders, including

the denial of the motion for a restraining order and stay of execution, are

AFFIRMED.

1
The decision in Siebert v. Allen, 506 F.3d 1047 (11th Cir. 2007), does not serve as an
authoritative interpretation of the requirements announced in Baze and Glossip because it
preceded both of those decisions. In addition, the facts of Siebert involved not a challenge to
how the protocol was applied generally but a claim that the plaintiff’s unique medical condition
would enhance the likelihood and severity of a painful death. The case of Bucklew v. Lombardi,
783 F.3d 1120 (8th Cir. 2014), while post-Baze, although pre-Glossip, also involved a plaintiff
with a unique medical condition that could result in severe pain even if the protocol was properly
applied. It might be said that in Siebert and Bucklew the challenge was to the protocols or drugs
as applied to one death row plaintiff, not as applied to all death row inmates in the state, which is
what we have here and what the Supreme Court had in Baze and Glossip.
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APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

KELLY RENEE GISSENDANER,

Plaintiff,
v. CIVIL ACTION FILE
NO. 1:15-CV-689-TWT
HOMER BRYSON
Commissioner, Georgia Department of
Corrections, et al.,
Defendants.

OPINION AND ORDER

The Plaintiff Kelly Renee Gissendaner was scheduled to be executed on March

2, 2015. However, prior to the scheduled execution, a doctor inspected the lethal

injection drugs that were to be used and concluded that there may be safety concerns.

Consequently, the State of Georgia did not proceed with the Plaintiff’s execution. The

Plaintiff contends that this incident has given rise to several Eighth Amendment

claims. It is before the Court on the Defendants’ Motion to Dismiss [Doc. 9]. For the

reasons set forth below, the Motion to Dismiss [Doc. 9] is GRANTED.

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I. Background

The facts of this case have already been explained in detail on multiple

occasions.1 Thus, the Court will provide only the facts that are material to this Order.

In 1998, the Plaintiff Kelly Renee Gissendaner was convicted of murder and

sentenced to death.2 On February 9, 2015, the Superior Court of Gwinnett County

issued an order directing the Georgia Department of Corrections to execute

Gissendaner.3 Ultimately, the Plaintiff’s execution was scheduled for March 2, 2015.4

This sparked an initial wave of litigation. In one of these cases, the Plaintiff

argued that Georgia’s lethal injection protocol – the details of which are kept

confidential from the public – violated the Eighth Amendment of the United States

Constitution. Due to applicable and binding Eleventh Circuit authority, the Court

dismissed the Plaintiff’s claim and denied her request for a stay of execution, and the

Eleventh Circuit subsequently affirmed.5

1
See, e.g., Gissendaner v. Seaboldt, 735 F.3d 1311 (11th Cir. 2013);
Gissendaner v. State, 272 Ga. 704 (2000).
2
Compl., at 5.
3
Compl., at 6.
4
Id.
5
See Gissendaner v. Commissioner, Georgia Department of Corrections,
779 F.3d 1275, 1279 (11th Cir. 2015).

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On March 2, 2015, the Plaintiff was transported to the Georgia Diagnostic and

Classification Prison in Jackson, Georgia for her execution.6 However, during an

inspection of the lethal injection drugs that were to be used on the Plaintiff, the State

of Georgia’s “doctor and . . . pharmacist were concerned about the cloudiness of the

drugs and believed that they were not appropriate for medical use.”7 After roughly

thirteen hours of deliberation, the Defendants – Homer Bryson (the Commissioner for

the Georgia Department of Corrections) and Bruce Chatman (Warden for the Georgia

Diagnostic and Classification Prison) – chose not to move forward with the

execution.8 On March 3, the Defendants’ “counsel . . . informed [the Plaintiff’s

counsel] that [the Defendants] had decided that her execution would not proceed

before her warrant window closed.”9 The Defendants are now conducting an

investigation into the March 2 incident.10 However, the details regarding this

investigation, along with any results, will not be disclosed.11

6
Compl., at 7.
7
Compl., at 9.
8
Compl., at 2.
9
Compl., at 10.
10
Compl., at 2.
11
Compl., at 2, 13.

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The Plaintiff brought suit, asserting Eighth Amendment claims based upon the

March 2 incident. The Plaintiff appears to advance two legal theories. First, she argues

that the Defendants violated the Eighth Amendment when they left her in a state of

“uncertainty” for nearly thirteen hours while they decided how to move forward after

being apprised of the “cloudy” drugs.12 Second, the Plaintiff renews an argument that

she made in a previous lawsuit: that Georgia’s lethal injection protocol is

unconstitutional. Even though the Defendants inspected the drugs and ultimately

chose not to have them injected into the Plaintiff, the Plaintiff argues that the March

2 incident shows that the State of Georgia’s “current lethal injection practices are

inadequate to prevent violations of Eighth Amendment rights.”13 The Defendants now

move to dismiss.

II. Legal Standard

A plaintiff may survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6) if the

factual allegations in the Complaint give rise to a plausible claim for relief.14 For a

12
Compl., at 3 (The Plaintiff claims that she “endured hours of
unconstitutional torment and uncertainty – to which she had not been sentenced –
while Defendants dithered about whether they could execute her.”).
13
Compl., at 2-3.
14
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a
right to relief above the speculative level . . . on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).”).

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claim to be plausible, the supporting factual matter must establish more than a mere

possibility that the plaintiff is entitled to relief.15 In determining whether a plaintiff has

met this burden, the Court must assume all of the factual allegations in the Complaint

to be true. The Court, however, need not accept as true any legal conclusions found

in the Complaint.16

III. Discussion

A. March 2, 2015 Incident

The Plaintiff claims that the incident that occurred on her scheduled execution

date, March 2, 2015, caused her “immense fear and anxiety.”17 In particular, the

Plaintiff claims that she was placed under a cloud of uncertainty while state officials

determined how to proceed after being notified that the drugs were “cloudy.” She

claims that for hours she was unsure of whether she would be executed on that date

and which drugs they would use. Thus, according to the Plaintiff, the incident

constituted “cruel and unusual punishment” under the Eighth Amendment. The Eighth

Amendment “which applies to the States through the Due Process Clause of the

15
See Iqbal, 556 U.S. at 678.
16
See id.; Twombly, 550 U.S. at 555 (A “plaintiff’s obligation to provide
the grounds of his entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.”) (internal
quotation marks omitted).
17
Pl.’s Resp. Br., at 37.

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Fourteenth Amendment . . . prohibits the infliction of ‘cruel and unusual punishments’

on those convicted of crimes.”18 For those already incarcerated, “only the unnecessary

and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden

by the Eighth Amendment.”19 This has an objective and subjective component. A

“prison official violates the Eighth Amendment only when . . . the deprivation alleged

. . . [is] objectively, ‘sufficiently serious.’”20 And “Eighth Amendment claims based

on official conduct that does not purport to be the penalty formally imposed for a

crime require inquiry into state of mind . . . the offending conduct must be wanton.”21

This is because the “Eighth Amendment . . . bans only cruel and unusual punishment”

and so “[i]f the pain inflicted is not formally meted out as punishment . . . some mental

element must be attributed to the inflicting officer before it can qualify.”22 And to be

clear, the Eighth Amendment “proscribes more than physically barbarous

18
Wilson v. Seiter, 501 U.S. 294, 296-97 (1991).
19
Ingraham v. Wright, 430 U.S. 651, 670 (1977) (internal quotation marks
omitted) (emphasis added).
20
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
21
Wilson, 501 U.S. at 302 (emphasis in original).
22
Id. at 300.

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punishments.”23 However, “[n]ot every governmental action affecting the interests or

well-being of a prisoner is subject to Eighth Amendment scrutiny.”24

Based on the allegations in the Complaint, the March 2 incident did not

constitute “cruel and unusual punishment.” The Plaintiff does not allege that the state

officials were intending to inflict pain upon her. The Plaintiff appears to acknowledge

that the incident was inadvertent; caused by unforeseen events. And the Supreme

Court has already found that “[a]n accident, although it may produce added anguish,

is not on that basis alone to be characterized as wanton infliction of unnecessary

pain.”25 Indeed, in State of Louisiana ex rel. Francis v. Resweber,26 the Supreme Court

was faced with similar facts. There, the plaintiff “was . . . convicted of murder and .

. . sentenced to be electrocuted.”27 He was “prepared for execution and on May 3,

1946 . . . was placed in the official electric chair.”28 However, presumably because of

23
Estelle v. Gamble, 429 U.S. 97, 102 (1976).
24
Whitley v. Albers, 475 U.S. 312, 319 (1986).
25
Estelle, 429 U.S. at 105; see also Baze v. Rees, 553 U.S. 35, 50 (2008)
(“[A]n accident, with no suggestion of malevolence . . . d[oes] not give rise to an
Eighth Amendment violation.”).
26
329 U.S. 459 (1947).
27
Id. at 460.
28
Id.

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a mechanical problem, when the “executioner threw the switch . . . death did not

result.”29 The plaintiff was then “removed from the chair and returned to prison” and

“[a] new death warrant was issued . . . fixing the execution for May 9, 1946.”30 The

plaintiff asserted an Eighth Amendment claim, which the Supreme Court rejected.31

As part of its analysis, the Supreme Court stated that “[t]he situation of the unfortunate

victim of this accident is just as though he had suffered the identical amount of mental

anguish and physical pain in any other occurrence, such as, for example, a fire in the

cell block.”32 And when recounting Resweber in a subsequent case, the Supreme Court

reiterated that “[b]ecause the first attempt had been thwarted by an ‘unforeseeable

accident,’ the officials lacked the culpable state of mind necessary for the punishment

to be regarded as ‘cruel,’ regardless of the actual suffering inflicted.”33

In response, the Plaintiff first argues that the March 2 incident is “attributable

to negligence, and not an accident.”34 But to “show an Eighth Amendment violation

29
Id.
30
Id. at 460-61.
31
See id. at 464.
32
Id.
33
Wilson, 501 U.S. at 297.
34
Pl.’s Resp. Br., at 41.

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a prisoner must typically show that a defendant acted, not just negligently, but with

‘deliberate indifference.’”35 Thus, the Plaintiff’s admission – that she has alleged only

that the Defendants were negligent – undermines her claim.

The Plaintiff then cites to the case of In re Medley36 for the proposition that

uncertainty regarding one’s execution may amount to “cruel and unusual punishment”

in violation of the Eighth Amendment.37 This is patently false. The issue in In re

Medley had nothing to do with the Eighth Amendment. In that case, the petitioner was

convicted for a murder that “took place on the 13th day of May of [1889].”38

However, he was then sentenced “under [a] statute of Colorado . . . which went into

effect July 19, 1889,” even though “the crime on account of which the sentence was

passed was . . . committed on the 13th day of May of the same year.”39 Thus, “the only

question . . . before [the Court] was whether the act . . . which . . . became operative

on the 19th day of July . . . and under which the sentence complained of was imposed

. . . [was] an ex post facto law, so as to be void under the . . . constitution of the United

35
Minneci v. Pollard, 132 S. Ct. 617, 625 (2012) (emphasis added).
36
134 U.S. 160 (1890).
37
Pl.’s Resp. Br., at 37-39.
38
Id. at 161.
39
Id. at 162 (emphasis added).

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States.”40 The Supreme Court stated “that any law which [is] passed after the

commission of [an] offense for which the party is being tried is an ex post facto law

when it inflicts a greater punishment than the law annexed to the crime at the time it

was committed.”41 The new statute that the petitioner was sentenced under included

a provision not found in its predecessor. In particular, the new statute stated that “the

warden is charged with the power of fixing the precise day and hour when the prisoner

shall be executed; that he is forbidden to communicate that time to the prisoner . . . in

fact, the prisoner is to be kept in utter ignorance of the day and hour when his mortal

life shall be terminated by hanging, until the moment arrives when this act is to be

done.”42 The petitioner simply objected “to this provision as being a departure from

the law as it stood before, and as being an additional punishment to the prisoner, and

therefore ex post facto.”43 The Supreme Court agreed, and found that the “secrecy

must be accompanied by an immense mental anxiety amounting to a great increase of

the offender’s punishment.”44 However, although the Supreme Court found that this

40
Id. at 162-63 (emphasis added).
41
Id. at 171.
42
Id. at 172.
43
Id.
44
Id.

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uncertainty constituted an additional “punishment,” it did not find that this punishment

was “cruel and unusual” under the Eighth Amendment. In fact, to the contrary, it

acknowledged that “under all former systems of administering capital punishment the

officer appointed to execute it had a right to select the time of the day when it should

be done.”45 But even putting that to one side, In re Medley is distinguishable for

another reason: the uncertainty that the petitioner was placed under was deliberate,

and was intended to be a punishment. Indeed, that very uncertainty was mandated by

the statute itself. Thus, the subjective component of the Eighth Amendment test could

have more easily been satisfied. By contrast, the Defendants here did not intentionally

subject the Plaintiff to uncertainty for the sake of inflicting more pain upon her.

Accordingly, the Plaintiff’s Eighth Amendment claim based upon the mental anguish

she suffered as a result of the March 2 incident should be dismissed.

B. Method of Execution

The Plaintiff argues that the State’s execution procedure violates the Eighth

Amendment. Thus, the Plaintiff seeks injunctive relief. The Supreme Court has

specifically “outlined what a prisoner must establish to succeed on an Eighth

Amendmentmethod-of-executionclaim.”46 Aplaintiff“cannotsuccessfullychallenge

45
Id.
46
Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015).

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a method of execution unless [she] establish[es] that the method presents a risk that

is sure or very likely to cause serious illness and needless suffering, and give rise to

sufficiently imminent dangers.”47 Thus, “[t]o prevail on such a claim, there must be

a substantial risk of serious harm, an objectively intolerable risk of harm that prevents

prison officials from pleading that they were subjectively blameless for purposes of

the Eighth Amendment.”48 In addition, the plaintiff “must identify an alternative that

is feasible, readily implemented, and in fact significantly reduce[s] a substantial risk

of severe pain.”49

Here, the Plaintiff made a similar argument in a previous lawsuit where she

sought to enjoin her execution. As noted earlier, the Court rejected this argument, and

the Eleventh Circuit affirmed in a binding opinion.50 The difference in this lawsuit,

however, is that the Plaintiff is arguing that the March 2 incident establishes that the

47
Id. (internal quotation marks and citations omitted).
48
Id. (internal quotation marks and citations omitted).
49
Id. (internal quotation marks omitted).
50
See Gissendaner v. Commissioner, Georgia Department of Corrections,
779 F.3d 1275, 1283 (11th Cir. 2015) (“None of Gissendaner’s factual allegations or
evidence present facts that establish a high level of likelihood that she will suffer
serious illness or needless suffering during her execution.”).

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procedure the State will use on her execution date51 will be cruel and unusual.52 The

Court rejects this argument as well.

First, it is not enough to show that the State may obtain defective lethal

injection drugs. To establish that the entire method of execution – which includes all

safeguards – violates the Eighth Amendment, the Plaintiff must show that there is a

substantial risk that the defective drugs will be used on the Plaintiff, and that the drugs

will then cause “serious illness and needless suffering.” Even assuming that the March

2 incident supports the former, it undermines the latter. If anything, the March 2

incident shows that the State is unlikely to use defective drugs on the Plaintiff. Indeed,

according to the Complaint, the Defendants had a doctor inspect the drugs prior to any

use.53 The doctor then consulted a pharmacist, who agreed that the drugs appeared

51
As of the filing of the Complaint, the Plaintiff’s next execution date has
not been decided.
52
Pl.’s Resp. Br., at 42-43 (“[The Plaintiff] . . . asserts that the events of
March 2-3 demonstrate that Defendants’ protocols and procedures present a
‘substantial risk of significant harm,’ and that they must not be allowed to again place
her at risk.”).
53
Compl., at 9.

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“cloudy.”54 Once the Defendants were made aware of the safety concerns, they elected

not to proceed with the execution.55

Second, the Plaintiff has also failed to adequately allege that there is a

substantial risk that the drugs obtained for her future execution will be defective. To

be sure, the Plaintiff does not allege that the drugs obtained for the March 2 execution

were necessarily defective, or that they certainly would have caused “serious illness

and needless suffering.” Indeed, she acknowledges that it is currently “unclear why

the drugs were cloudy.”56 According to the Plaintiff, all that is known “about the drugs

. . . [is] that Defendants’ own doctor and pharmacist deemed them ‘inappropriate’ for

medical use.”57 But even assuming the drugs were defective, that alone does not

necessarily mean that it is significantly likely that defective drugs will be obtained

again.58 The Plaintiff’s claim still amounts to speculation, and the Eleventh Circuit has

held that “speculation that a drug . . . will lead to severe pain or suffering cannot

54
Id.
55
Compl., at 11.
56
Compl., at 14.
57
Id.
58
See Baze v. Rees, 553 U.S. 35, 50 (2008) (“ [A]n isolated mishap alone
does not give rise to an Eighth Amendment violation, precisely because such an event,
while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to
a ‘substantial risk of serious harm.’”).

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substitute for” a showing “that the use of the drug is sure or very likely to cause

serious illness and needless suffering.”59

In response, the Plaintiff points out that the Defendants have refused to disclose

the details regarding their investigation into the March 2 incident. This secrecy, the

Plaintiff argues, inhibits her from accessing facts that may bolster her Eighth

Amendment claim. A similar argument was made in Wellons v. Commissioner,

Georgia Department of Corrections.60 There, the plaintiff argued “that the Eighth

Amendment entitles him to the information required to determine whether Georgia’s

lethal injection procedure is cruel and unusual.”61 Ultimately, the Eleventh Circuit

rejected this argument.62 However, in his concurring opinion in Wellons, Judge

Wilson made note of the “disturbing circularity problem created by Georgia’s secrecy

law regarding methods of execution.”63 He acknowledged that it was “due to his lack

of information” that the plaintiff failed to establish the level of risk necessary to

59
Wellonsv. Commissioner, Georgia Departmentof Corrections, 754 F.3d
1260, 1265 (11th Cir. 2014) (internal quotation marks omitted).
60
754 F.3d 1260 (11th Cir. 2014).
61
Id. at 1264.
62
See id. at 1267.
63
Id. at 1267 (Wilson, J. concurring).

22
 Case: 15-14335 Date Filed: 09/29/2015 Page: 23 of 34

prevail on his Eighth Amendment claim.64 But Judge Wilson nonetheless concurred.

Although the plaintiff failed to establish an Eighth Amendment claim due to the

State’s secrecy, he nonetheless failed to establish an Eighth Amendment claim. The

applicable Eighth Amendment standard does not fluctuate based upon the information

a plaintiff has in his possession.65 Here, similarly, it may be true that the Defendants’

secrecy is the reason the Plaintiff cannot utilize the March 2 incident to establish an

Eighth Amendment claim. But like in Wellons, this allegation of secrecy does not

relieve her of the burden of coming forward with facts that are sufficient to state a

plausible claim for relief. Accordingly, the Plaintiff’s Eighth Amendment claim

regarding the State of Georgia’s lethal injection protocol should be dismissed.

64
Id.
65
Cf. Wilson v. Seiter, 501 U.S. 294, 302 (1991) (Eighth Amendment
requirements may not be “ignored as policy considerations might dictate.”).

23
 Case: 15-14335 Date Filed: 09/29/2015 Page: 24 of 34

IV. Conclusion

For these reasons, the Court GRANTS the Defendants’ Motion to Dismiss

[Doc. 9].

SO ORDERED, this 10 day of August, 2015.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

24
 Case:
JORDAN, Circuit 15-14335
Judge, Date Filed: 09/29/2015
dissenting: Page: 25 of 34

In my view, the district court erred in dismissing one of the two Eighth

Amendment claims pled by Ms. Gissendaner, i.e., the claim that Georgia is using

compounded pentobarbital in an adulterated form in a way that creates a serious risk

that she will be subjected to needless suffering during her upcoming execution. And

this error, I think, resulted in the improper denial of her motion for stay of execution.

As I see it, Ms. Gissendaner alleged enough to mount an as-applied challenge to

Georgia’s execution protocol and to obtain a stay. With respect, I dissent.1

I

On March 2, 2015, the day Georgia was scheduled to put Ms. Gissendaner to

death, we issued an opinion rejecting her facial Eighth Amendment challenge to

Georgia’s lethal-injection protocol. We held that her challenge was untimely, and

that, in any event, it failed on the merits. See Gissendaner v. Comm’r, 779 F.3d

1275, 1280–83 (11th Cir. 2015) (Gissendaner I). With respect to the merits of the

Eighth Amendment claim, we ruled that “[n]one of [Ms.] Gissendaner’s factual

allegations or evidence present facts that establish a high level of likelihood that she

will suffer serious illness or needless suffering during her execution.” Id. at 1283

(alteration added). But just hours after we issued our ruling, things changed, and

they changed in a material way.

A

1
I agree with the majority that the district court properly dismissed the claim that Georgia
officials violated the Eighth Amendment by leaving Ms. Gissendaner in a “state of uncertainty” for
nearly 13 hours while it decided what to do after discovering the cloudy compounded
pentobarbital.
25
 Case:
According to 15-14335 Date Filed:
Ms. Gissendaner’s 09/29/2015
complaint Page:
in this 26Georgia
case, of 34 did not go

through with the scheduled execution on the night of March 2, 2015, because the

state’s doctor and pharmacist each concluded that the compounded pentobarbital

which was to be injected into her—the only drug now used by Georgia to carry out

executions—was “visibly cloudy” and “not appropriate for medical use.” Compl. at

6, 8–9. Although it is not known why the pentobarbital was cloudy, Georgia’s

counsel indicated that night that there was no problem with the state’s supplier of the

compounded drug, and said that “this batch [of drugs] just did not come out like it

was supposed to.” Id. at 9, 14 (alteration added). Georgia’s counsel also said that

the state would conduct an investigation. By the time Ms. Gissendaner filed her

complaint, however, Georgia had not disclosed what it had done to investigate the

cloudy pentobarbital or what, if anything, its investigation had revealed. And,

according to the complaint, Georgia would not disclose such information due to its

state secrecy law. See Ga. Code Ann. § 42-5-36(d) (classifying as a “confidential

state secret” any identifying information concerning any person or entity

participating in an execution).

Ms. Gissendaner alleged in her complaint that, according to her medical expert

(whose declaration was attached), there is a foreseeable risk that the use of

compounded drugs in lethal injections in Georgia would be substandard “in a manner

that would cause severe pain upon or shortly after injection.” Compl. at 14. That

expert further opined that “[w]henever a solution that is supposed to be clear turns

cloudy, it indicates one of a number of serious problems that make the drug unusable

and dangerous.” Id. at 15–16 (internal quotation marks omitted) (emphasis
26
 Case: the
original). Finally, 15-14335 Date Filed:
expert opined that 09/29/2015
the possible Page: 27 of 34for the cloudy
explanations

pentobarbital included that the compounding pharmacy lacks the expertise or ability

to properly manufacture the drug, or that Georgia officials lack the equipment and

training to properly store the drugs, and that either problem could create the risk of

severe pain. Id. at 16–20.

Had Ms. Gissendaner been injected with cloudy compounded pentobarbital

containing particulate matter, she would have suffered “terrible pain,” and if she had

been injected with cloudy compounded pentobarbital with an improper pH she would

have felt “intense, burning pain” upon injection. Id. at 17–18. The complaint also

alleged that there had been three botched executions with compounded pentobarbital

in Oklahoma, Texas, and South Dakota. Id. at 19–20.

In addition, Ms. Gissendaner noted that Georgia ran afoul of the Food and

Drug Administration by illegally importing sodium thiopental. Id. at 25–26. And

since June of 2013, Georgia had been paying an unidentified doctor the sum of

$5,000 to write prescriptions “for” condemned prisoners so that a pharmacy can then

compound the pentobarbital that will be used at executions. Id. at 28. Citing § 42-5-

36(d), Georgia has recently refused to provide any documents which shed light on

how the pentobarbital is compounded, stored, or used, or on the qualifications of

those who compound, obtain, or administer the pentobarbital. Id. at 28–32.

Finally, Ms. Gissendaner alleged that many of the representations made by

Georgia to the district court in Gissendaner I have been proven demonstrably false

or are incapable of confirmation due to Georgia’s penchant for secrecy. These

include claims that the compounded pentobarbital is exactly the same as the previous
27
FDA-approvedCase: 15-14335 pentobarbital
pentobarbital; Date Filed: 09/29/2015 Page:to28compound;
is not difficult of 34 the state

will not try to carry out executions if it does not have properly compounded

pentobarbital; the prison team which carries out executions is qualified and

experienced. Id. at 34–36.

B

The district court dismissed Ms. Gissendaner’s as-applied Eighth Amendment

claim for two reasons. First, although it recognized that there was a factual

difference—the cloudy compounded pentobarbital on March 2—between this case

and Gissendaner I, the district court concluded that the March 2 incident “shows that

the state is unlikely to use defective drugs” on Ms. Gissendaner. D.E. 29 at 13

(emphasis original). Because a doctor and pharmacist agreed on March 2 that the

compounded pentobarbital was cloudy, Georgia officials decided not to go forward

with the execution. See id. at 13–14. Second, the district court ruled that Ms.

Gissendaner “failed to adequately allege that there is a substantial risk that the drugs

obtained for future execution will be defective.” Id. at 14. The district court

explained that Ms. Gissendaner had not alleged that the compounded pentobarbital

was “necessarily defective,” nor had she alleged that it would have “caused ‘serious

illness and needless suffering.’” Id. According to the district court, “even assuming

that the drugs were defective, that alone does not necessarily mean that it is

significantly likely that defective drugs will be obtained again. [Ms. Gissendaner’s]

claim still amounts to speculation[.]” Id. (alteration added).

II

28
 Case:court’s
The district 15-14335
Rule Date Filed:dismissal
12(b)(6) 09/29/2015 Page:
of Mr. 29 of 34
Gissendaner’s complaint

generates plenary review. See Lopez v. First Union Nat. Bank of Florida, 129 F.3d

1186, 1189 (11th Cir. 1997). This standard requires that we accept all factual

allegations in the complaint as true and that we construe them in the “light most

favorable” to Mr. Gissendaner. See, e.g., Christopher v. Harbury, 536 U.S. 403, 406

(2002); Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008).

To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual

allegations to make a claim “plausible on its face.” Bell Atlantic Corp. v. Twombly,

544 U.S. 550, 570 (2007). A “claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Significantly, the Court in Iqbal emphasized that “the plausibility standard is

not akin to a ‘probability requirement[.]’” Id.

A

The district court did not accept as true all of the allegations in the complaint,

and it did not construe the allegations in the light most favorable to Ms. Gissendaner.

I would therefore reverse the dismissal of the complaint and remand for further

proceedings.

It may be that, as the district court theorized, even if Georgia once again

obtains “cloudy” compounded pentobarbital it is possible that such a defective drug

will not be used on Ms. Gissendaner. After all, the state’s doctor and pharmacist

may again detect the problem and, as a result, Georgia officials might once again call

off the execution. But that possible scenario does not construe the allegations in the
29
 Case: 15-14335
light most favorable Date Filed: It
to Ms. Gissendaner. 09/29/2015
is certainly Page:
fair to30 of 34
infer that if there is a

problem with the supply of defective compounded pentobarbital (which Georgia’s

doctor and pharmacist agreed was “not appropriate for medical use”) and Georgia

has not been able to figure out what caused that problem, the problem is likely to

recur. There is also no guarantee that a doctor or pharmacist will recognize the

problem the next time, particularly if the compounded pentobarbital has an incorrect

pH or is, despite its adulteration, only slightly cloudy. Ms. Gissendaner only had to

allege enough to show the “substantive plausibility” of her Eighth Amendment

claim, Johnson v. City of Shelby, 135 S.Ct. 346, 346 (2014), and I think she did that

here.

Similarly, the district court erred by ruling that Ms. Gissendaner had not

alleged sufficient facts to show that Georgia would once again obtain defective

compounded pentobarbital. Let me explain why.

For starters, the district court’s subsidiary rulings—that Ms. Gissendaner had

not alleged that the pentobarbital on March 2 was necessarily defective or that its use

on her would have caused needless suffering—are simply wrong. As to the first

point, Ms. Gissendaner alleged that the compounded pentobarbital was cloudy, that

the state’s doctor and pharmacist each concluded that it was “not appropriate for

medical use,” that a lawyer for the state indicated that there was a problem with the

batch that the dose came from, and that Georgia officials decided to stop the

execution. If that is not enough to allege that the compounded pentobarbital on

March 2 was defective, then I’ve completely misunderstood Twombly and Iqbal. As

for the second point, Ms. Gissendaner quoted her medical expert, who opined that if
30
the defective Case: 15-14335pentobarbital
compounded Date Filed: had
09/29/2015 Page: 31 of 34
been administered, she would have

suffered severe and terrible pain. I cannot understand how or why that is insufficient

to allege needless suffering.

Turning to the question of Georgia once again obtaining defective drugs, Ms.

Gissendaner alleged that Georgia had not figured out what caused the problem on

March 2, and that the state was not revealing the relevant documents which might

explain exactly what had happened. It is certainly plausible to conclude, at the Rule

12(b)(6) stage, that if a state has received defective compounded drugs for use in an

execution, does not know what caused the problem, and is choosing not to disclose

what happened and how, the problem is likely to recur (at least until the problem is

diagnosed or solved). Again, plausibility is not probability. See Iqbal, 556 U.S. at

678. Cf. O’Shea v. Littleton, 414 U.S. 488, 496 (1974) (“Of course, past wrongs are

evidence bearing on whether there is a real and immediate threat of repeated

injury.”).

Georgia can certainly choose, as a matter of state law, to keep much of its

execution protocol secret, but it cannot hide behind that veil of secrecy once

something has gone demonstrably wrong with the compounded pentobarbital it has

procured. See Wellons v. Comm’r, 754 F.3d 1260, 1267–68 (11th Cir. 2014)

(Wilson, J., concurring). It is not asking too much to require Georgia to put on some

evidence that will provide some level of confidence that its compounded

pentobarbital is no longer a problem. 2

2
I recognize that, in response to the complaint, Georgia filed a number of affidavits and
exhibits concerning its investigation into the events of March 2, but the district court made it clear
at the hearing on September 28, 2015, that it was not considering any of those filings under Rule
31
 Case: 15-14335 Date Filed:B09/29/2015 Page: 32 of 34

To obtain a stay of execution, Ms. Gissendaner must show that she has a

substantial likelihood of success on the merits, that she will suffer irreparable injury

in the absence of a stay, that Georgia will not be substantially harmed from the grant

of a stay, and that the stay would not be adverse to the public interest. See Valle v.

Singer, 655 F.3d 1223, 1228 (11th Cir. 2011). Our review of the district court’s

denial of Ms. Gissendaner’s motion for stay of execution is of course deferential, see

Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011) (holding that denial of

motion for stay of execution is reviewed for abuse of discretion), but an abuse of

discretion can occur when a court uses the wrong legal standard or misapplies the

correct legal standard. See, e.g., Glock v. Glock, Inc., 797 F.3d 1002, 1006 (11th Cir.

2015). Here, as explained above, the district court failed to accept the complaint’s

factual allegations as true and failed to take them in the light most favorable to Ms.

Gissendaner. That misapplication of the Rule 12(b)(6) standard constituted an abuse

of discretion.

That abuse of discretion, moreover, affected the district court’s denial of Ms.

Gissendaner’s motion for stay of execution. The first reason the district court gave

for denying the stay was that it had dismissed the complaint, and as a result of that

dismissal, Ms. Gissendaner could not show a substantial likelihood of success on the

merits. See D.E. 41 at 3. At the very least, we should remand the matter to the

12(b)(6). I do not consider them either, and express no view on what they might or might not show
concerning the current state of affairs.
32
 Case:
district court for it to15-14335 Date
consider the Filed:for
motion 09/29/2015
stay anew Page:
based 33
onofMs.
34 Gissendaner’s

sufficient Eighth Amendment claim. 3

The second reason the district court provided for denying the stay was that Ms.

Gissendaner’s Eighth Amendment challenge was foreclosed by two Eleventh Circuit

cases—Wellons and Gissendaner I. Id. at 4. I think the district court was mistaken

in this respect, as these two decisions do not concern an as-applied challenge to

Georgia’s one-drug execution protocol. In Wellons, where the challenge, a facial

one, was to Georgia’s use of compounded pentobarbital, we held that “Wellon’s

argument that the compounded pentobarbital may be defective or the personnel

administering the execution may be untrained is insufficient to establish a substantial

likelihood of success on the merits of his Eighth Amendment claim.” 754 F.3d at

1265. And in Gissendaner I we ruled that a similar facial claim was insufficient. 779

F.3d at 1283. Importantly, there were no allegations in Wellons or Gissendaner I

that Georgia had in fact obtained a defective/adulterated sample of compounded

pentobarbital for use in an execution (as it did on March 2), or that Georgia did not

know what led to the problem with the compounded pentobarbital, or that Georgia

was refusing to disclose what it had learned in its investigation of the problem.

Those, of course, are the additional and critical allegations Ms. Gissendaner now

makes based on the events (and aftermath) of March 2.

I offer one final thought. A death-row prisoner who is mounting a facial

challenge to a state’s execution protocol must show not only that the protocol is sure

3
On remand, the district court could of course consider the affidavits and exhibits
submitted by Georgia, as well as any other documents filed by Ms. Gissendaner, in evaluating the
motion for stay of execution. The district court could also hold an evidentiary hearing and consider
additional evidence presented by the parties on the issue of the compounded pentobarbital.
33
 Case:
to cause, or very 15-14335
likely to cause,Date Filed:illness
serious 09/29/2015 Page:suffering,
and needless 34 of 34 but also that

“any risk of harm is substantial when compared to a known and alternative method

of execution.” Glossip v. Gross, 135 S.Ct. 2726, 2737–38 (2015). But where a

prisoner like Ms. Gissendaner alleges that, based on recent experiences, a facially

constitutional execution protocol is being carried out in an unconstitutional manner

(e.g., that the state’s electric chair is malfunctioning, or that the state is getting

defective compounded drugs for lethal injections), I do not think she is required to

“identify an alternative method of execution.” See Bucklew v. Lombardi, 783 F.3d

1120, 1129 (8th Cir. 2015) (en banc) (Bye, J., concurring in the result). We have

differentiated between facial and as-applied challenges to execution protocols, see

Siebert v. Allen, 506 F.3d 1047, 1049–50 & n. 3 (11th Cir. 2007) (reversing denial of

motion for stay of execution with respect to as-applied challenge, but affirming

denial with respect to facial challenge), and that makes sense to me. If a state merely

has to fix a correctable problem to eliminate an as-applied challenge, there is no need

for a prisoner to allege (or show) that a different alternative method of execution is

available to the state.

III

As I read her complaint, Ms. Gissendaner has stated a sufficient and viable as-

applied Eighth Amendment claim. I would therefore reverse the dismissal of the

complaint and remand for the district court to reconsider Ms. Gissendaner’s motion

for stay of execution.

34