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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15732
________________________
D.C. Docket Nos. 2:12-CV-0316-WKW, 2:13–CV-0781-WKW,
2:14-CV-1028-WKW, 2:14-CV-1029-WKW, 2:14-CV-1030-WKW
CHRISTOPHER EUGENE BROOKS
Intervenor Plaintiff - Appellant,
versus
WARDEN,
COMMISSIONER, ALABAMA DOC,
Defendants - Appellees.
________________________
Appeals from the United States District Court
for the Middle District of Alabama
________________________
(January 19, 2016)
Before HULL, MARCUS, and JULIE CARNES, Circuit Judges:
MARCUS, Circuit Judge:
Appellant Christopher E. Brooks, an Alabama death row inmate, appeals
from the district court’s denial of his emergency motion to stay execution for the
1992 rape, burglary, robbery, and murder of Jo Deann Campbell. He has also filed
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with this Court an emergency motion for a stay of execution. After the state
moved to set an execution date, Brooks intervened pursuant to Fed. R. Civ. P.
24(b) in a consolidated action filed by five inmates on Alabama’s death row. That
lawsuit had started more than three years earlier as a claim brought under Title 42
U.S.C. § 1983 in the United States District Court for the Middle District of
Alabama challenging the constitutionality of Alabama’s method of execution. In
the consolidated action, the plaintiffs broadly claimed that Alabama’s current
three-drug lethal injection protocol -- which uses midazolam, rocuronium bromide,
and potassium chloride -- created a substantial risk of serious harm in violation of
the Cruel and Unusual Punishments Clause of the Eighth Amendment.
After Brooks recently intervened in the consolidated action and filed a
complaint largely repeating the earlier plaintiffs’ allegations, he filed an emergency
motion last month in the district court to stay his execution, which is now
scheduled for January 21, 2016 at 6:00 pm CST. The trial court denied his motion
for a stay, explaining that Brooks had not shown a substantial likelihood of success
on the merits of his Eighth Amendment claim because: (1) he failed to show an
available and feasible alternative method of execution, as required by controlling
case law; and (2) he failed to show that he brought this claim within the applicable
two-year statute of limitations. Moreover, the district court determined that the
balance of equities weighed against granting a stay because Brooks unreasonably
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delayed bringing his lawsuit until it was too late to resolve the merits of his claim
without staying his execution. After carefully reviewing the record before us, we
can discern no abuse of discretion and, accordingly, affirm the judgment of the
district court, and also deny Brooks’s emergency motion to stay filed in this Court.
I.
The facts of the rape, burglary, robbery, and murder that Brooks committed
have been laid out in several earlier decisions of the Alabama state courts. See
Brooks v. State, 695 So. 2d 176, 178-79 (Ala. Crim. App. 1996) (“Brooks I”),
aff’d, 695 So. 2d 184, 186-87 (Ala. 1997) (“Brooks II”); see also Brooks v. State,
929 So. 2d 491, 494-95 (Ala. Crim. App. 2005) (“Brooks III”). As the state court
detailed, on December 31, 1992, Jo Deann Campbell was found bludgeoned to
death, naked from the waist down, with semen in her vagina. Brooks was later
seen driving the victim’s car, and was arrested while in possession of her car keys
and credit card. Law enforcement authorities confirmed that he had cashed the
victim’s paycheck and had pawned some items missing from her apartment.
Brooks also admitted to having had sex with Ms. Campbell, which was
corroborated by DNA evidence.
After trial in Jefferson County, Alabama, a state jury convicted Brooks of
three counts of capital murder for killing the victim during the course of a rape,
during the course of a robbery, and during the course of a burglary. Following the
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penalty phase, the jury recommended that Brooks be sentenced to death by a vote
of 11 to 1, and an Alabama circuit court sentenced Brooks to death. His conviction
and death sentence were affirmed on direct appeal, see Brooks I, 695 So. 2d at 176;
Brooks II, 695 So. 2d at 184, and the United States Supreme Court denied his
petition for certiorari. Brooks v. Alabama, 522 U.S. 893 (1997). On collateral
review, the Alabama state court denied his Rule 32 petition, and the Alabama
Court of Criminal Appeals affirmed. Brooks III, 929 So. 2d at 515. Brooks then
petitioned the United States District Court for the Northern District of Alabama for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the
petition. We affirmed, and the United States Supreme Court again denied his
petition for certiorari. Brooks v. Comm’r, Ala. Dep’t of Corr., 719 F.3d 1292,
1305 (11th Cir. 2013) (“Brooks IV”), cert. denied sub nom. Brooks v. Thomas, 134
S. Ct. 1541 (2014).
On September 10, 2014, the Defendants (collectively, the Alabama
Department of Corrections or “ADOC”) amended Alabama’s execution protocol in
two ways: (1) they substituted midazolam hydrochloride for pentobarbital as the
first drug administered in its three-drug lethal-injection sequence, and (2) they
substituted rocuronium bromide for pancuronium bromide as the second drug to be
administered. The third drug, potassium chloride, remained the same. Thereafter,
Brooks’s execution date was initially set for May 21, 2015, but the Alabama
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Supreme Court stayed the execution, pending the Supreme Court’s decision in
Glossip v. Gross, 135 S. Ct. 2726 (2015), a case that squarely raised Eighth
Amendment claims about the use of midazolam in lethal-injection executions in
Oklahoma.
While Glossip was working its way through the courts, a consolidated action
was being litigated in the United States District Court for the Middle District of
Alabama. That group of cases began as one lawsuit originally filed on April 6,
2012, when an Alabama death row inmate sued pursuant to 42 U.S.C. § 1983 to
challenge the constitutionality of Alabama’s lethal injection protocol. See Grayson
v. Dunn, No. 12-cv-00316-WKW (M.D. Ala.). The lawsuit initially challenged
Alabama’s previous lethal injection protocol, but it evolved along with the state’s
new protocol, and now is known as the “Midazolam Litigation.” Since 2012, cases
brought by four other Alabama death row inmates have been consolidated into the
Midazolam Litigation. On October 18, 2005, the district court denied the state’s
motion to dismiss the Midazolam Litigation, and on November 20, 2015, the
district court set an evidentiary hearing for April 19-22, 2016.
Although the consolidated action had been pending in district court since
2012, Brooks did not move to intervene until November 2, 2015, more than three-
and-a-half years after the suit was commenced, and forty days after the state
moved the Alabama Supreme Court to set an execution date for Brooks. On
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November 23, 2015, the district court granted the motion to intervene. Earlier on
the same day, the Alabama Supreme Court had granted the state’s motion and set
Brooks’s execution for January 21, 2016.
On December 4, 2015, Brooks filed an Emergency Motion for Stay of
Execution. The district court denied the application on December 22, 2015. In a
thorough and well-reasoned order, the district court explained that Brooks had not
established a substantial likelihood of success on the merits of his Eighth
Amendment claim because he failed to adequately show an available and feasible
alternative method of execution, as required by Glossip. Among other things, the
district court determined that Brooks had not sufficiently demonstrated that two of
his proposed single-injection alternatives -- sodium thiopental and pentobarbital --
are readily available to the ADOC. The court added that Brooks had also failed to
adequately demonstrate that his third proposed alternative -- midazolam alone -- is
an effective alternative. In addition, the district court concluded that Brooks had
not shown a substantial likelihood of success on the merits because his Eighth
Amendment claim was time-barred as of 2004, and he had not sufficiently
demonstrated that the clock should have been reset when Alabama switched to the
current protocol. Finally, the district court held that because Brooks unreasonably
delayed bringing this lawsuit, the balance of equities did not lie in Brooks’s favor
for a stay. Brooks now appeals the district court’s denial of his emergency motion
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for a stay and also moves this Court on an emergency basis for a stay of execution
“to allow measured consideration of the issues of first impression raised by the
District Court’s ruling.”
II.
It is by now hornbook law that a court may grant a stay of execution only if
the moving party establishes 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.” See Powell v. Thomas, 641 F.3d
1255, 1257 (11th Cir. 2011) (emphasis added). Moreover, we review the denial of
a stay of execution only for abuse of discretion. Id.
In an Eighth Amendment challenge to the lethal injection protocol used by
Oklahoma, the Supreme Court recently held:
[P]risoners cannot successfully challenge a method of execution
unless they establish 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.’ ” To 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.’ ” . . . [P]risoners “cannot successfully challenge a
State’s method of execution merely by showing a slightly or
marginally safer alternative.” Instead, prisoners must identify an
alternative that is “feasible, readily implemented, and in fact
significantly reduce[s] a substantial risk of severe pain.”
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. . . [T]he requirements of an Eighth Amendment method-of-execution
claim [are summarized] as follows: “A stay of execution may not be
granted on grounds such as those asserted here unless the condemned
prisoner establishes that the State’s lethal injection protocol creates a
demonstrated risk of severe pain. [And] [h]e must show that the risk is
substantial when compared to the known and available alternatives.”
Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015) (citations and emphasis omitted);
see also Baze v. Rees, 553 U.S. 35, 50, 61 (2008) (plurality opinion); Gissendaner
v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1283 (11th Cir. 2015). In Glossip,
the Supreme Court applied this test and held that the district court did not commit
clear error when it found that midazolam (as the first drug in Oklahoma’s three-
drug protocol) is highly likely to render a person unable to feel pain during an
execution, and, therefore, that the plaintiff failed to sustain his burden under the
Eighth Amendment. 135 S. Ct. at 2739. The three-drug protocol approved in
Glossip -- using midazolam, rocuronium bromide (or a “functionally equivalent”
bromide paralytic), and potassium chloride, id. at 2734-35 -- is the very same
protocol that Brooks challenges here. On this record, Brooks has not established a
substantial likelihood that the State’s lethal injection protocol creates a
“demonstrated risk of severe pain” (an especially difficult burden to meet since the
Supreme Court approved of the very same three-drug protocol in Glossip).
In the face of Glossip, Brooks’s claim now is that the three-drug protocol
creates a substantial risk of severe pain when compared to Brooks’s proposed
single-injection alternatives. We agree with the district court, however, that
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Brooks has not established a substantial likelihood that he would be able to show
that the risk is “substantial when compared to the known and available
alternatives” -- the second prong of the Glossip test.1 As the Supreme Court made
abundantly clear in Glossip itself, the burden rests with the claimant to “plead and
prove” both prongs of the test. See id. at 2739; see also id. at 2737 (holding that
“the condemned prisoner [must] establish[] that the State’s lethal injection protocol
creates a demonstrated risk of severe pain [and] . . . that the risk is substantial when
compared to the known and available alternatives” (quoting Baze, 553 U.S. at 61)).
Thus, capital prisoners seeking a stay of execution must show “a likelihood that
they can establish both that [the state’s] lethal injection protocol creates a
demonstrated risk of severe pain and that the risk is substantial when compared to
the known and available alternatives.” Id.; see also id. (“A stay of execution may
not be granted on grounds such as those asserted here unless the condemned
prisoner . . . show[s] that the risk is substantial when compared to the known and
available alternatives.” (quotation omitted and emphasis added)).
In his intervenor complaint, Brooks has alleged that midazolam -- the first of
the three drugs used in Alabama’s execution protocol -- will not properly
anesthetize him so as to prevent him from feeling an “unconstitutional level of
1
In reaching this conclusion, we do not address Brooks’s claim that the district court placed too
high a pleading burden on him. The district court did not dismiss Brooks’s complaint for failure
to state a claim, and he is not appealing any decision to that effect. Rather, the district court
denied his emergency motion to stay his execution, and that is all that we are reviewing on
appeal.
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pain” associated with the injection of the other two drugs that will kill him
(rocuronium bromide and potassium chloride). He also claims that midazolam
may exhibit a “ceiling effect” -- that is, at a certain point, an increase in the dose
administered will not have any greater effect on an inmate. Brooks says that there
are three alternative methods of execution available to the ADOC that significantly
reduce the risk of an unconstitutional level of pain: (1) a single injection of
pentobarbital; (2) a single injection of sodium thiopental; or (3) a single injection
of midazolam. On this record, we are unpersuaded.
As for the first option, Brooks provides three pieces of evidence in support
of his allegation that a single dose of pentobarbital is a known, available, and safer
alternative method of execution. First, he cites news articles showing that in other
states (Texas, Colorado, Ohio, Georgia, Missouri, Mississippi, Oklahoma, South
Dakota, and Pennsylvania), nearly forty inmates have been executed using “a
single bolus of pentobarbital, making it the most common method of execution in
the United States.” But the fact that the drug was available in those states at some
point over the past two years does not, without more, make it likely that it is
available to Alabama now. Second, he cites a bare comment made by counsel for
the Alabama Department of Corrections during a status conference in another case
in May 2014. 2 But that alleged admission -- which the ADOC construes as saying
2
The transcript from that hearing reflects the following brief exchange:
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that compounded pentobarbital was available to certain states, but not necessarily
to Alabama -- is twenty months out of date at this point.
Indeed, in more recent filings, the ADOC has said that it has been unable to
procure pentobarbital and that it does not have a source for pentobarbital. See
Doc. 73 at 27; see also Glossip, 135 S. Ct. at 2733-34 (“The District Court below
found that both sodium thiopental and pentobarbital are now unavailable to
Oklahoma.”). While pleadings do not constitute evidence, it is not the state’s
burden to plead and prove that it cannot acquire the drug. As the Supreme Court
explained, it is Brooks’s burden to “identify an alternative that is feasible, readily
implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”
Id. at 2737 (quotation omitted). Brooks has neither shown a substantial likelihood
that there is now a source for pentobarbital that would sell it to the ADOC for use
in executions, nor that an execution protocol involving this drug would be readily
implementable by the ADOC. Without some showing that pentobarbital is
currently “known and available” to the ADOC, there is no substantial likelihood
that Brooks could satisfy this prong of the Glossip test.
The Court: But [pentobarbital is] available through compounding companies or
compounding agencies?
Counsel for ADOC: It is, Your Honor.
See Status Conference, Arthur v. Myers, No. 2:11-cv-00438-WKW-TFM (M.D. Ala. May 19,
2014), Doc. 171.
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As for a second alternative, Brooks proposes the use of sodium thiopental,
and alleges that it is available based on the representations of three states --
Nebraska, Ohio, and Texas -- that they could legally obtain the drug. Brooks cites
as support just a newspaper article in which the governor of Nebraska announced
that the state had purchased sodium thiopental from India.3 He also cites a second
news article reporting that Texas had received approval from the Drug
Enforcement Agency to import sodium thiopental. 4 And, finally, he references a
letter from Ohio to the Food and Drug Administration (“FDA”) claiming that there
are legal ways to import sodium thiopental for use in executions. 5
These allegations of availability are not sufficient to satisfy the unambiguous
requirement laid out in Glossip. The newspaper assertion that a drug might have
been available to others at some other time from India does not show a substantial
3
See Paul Hammell and Martha Stoddard, “Nebraska has purchased drugs necessary for lethal
injections, Gov. Ricketts says,” Omaha World-Herald (May 14, 2015),
http://www.omaha.com/news/crime/nebraska-has-purchased-drugs-necessary-for-lethal-
injections-gov-ricketts/article_3423d60a-fa8c-11e4-a761-1f25f74fc5ba.html (“Ricketts . . . said
the state has purchased two of the necessary drugs, sodium thiopental and pancuronium bromide,
from a distributor in India, HarrisPharma, and already has a supply of the third drug required,
potassium chloride.”).
4
Astrid Galvan, “Document: Arizona tried to illegally import execution drug,” Miami Herald
(Oct. 22, 2015), http://www.miamiherald.com/news/nation-world/national/article41143878.html
(“On Thursday, Texas said it had obtained a license from the U.S. Drug Enforcement
Administration to import sodium thiopental.”).
5
Doc. 75-2, Letter from Ohio Department of Rehabilitation & Correction to FDA (Oct. 9, 2015)
(Ohio “believe[s] that if a state were to attempt to import thiopental under . . . five conditions
[listed above], . .. it would be lawful and permissible for a state to proceed with such lawful
importation.”).
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likelihood that the drug is “readily available” to the ADOC -- especially since the
very news articles Brooks cites questioned both the purity and the legality of the
imported drugs,6 reported that federal agents seized Arizona’s shipment of the drug
and would not “budge[]” on releasing it, 7 and emphasized that many states had not
been able to obtain the drug despite repeated efforts.8 In addition, the Ohio letter
was simply a response to a letter from the FDA “impl[ying] . . . that the
importation of sodium thiopental is currently prohibited.”9 Quite simply, the news
articles and letter strongly undermine the claims that Alabama could readily import
sodium thiopental and that an execution protocol involving this drug is readily
available to be used.
6
See Hammell & Stoddard, supra note 3 (“[A Nebraska state senator] said the state will have to
show that the drugs were obtained from a source approved by the U.S. Food and Drug
Administration. . . . Ricketts’ spokesman . . . said the drugs will be sent to an independent
laboratory to be tested for purity.”).
7
See Galvan, supra note 4 (“Arizona and other death penalty states have been struggling to
obtain legal execution drugs for several years after European companies refused to sell the drugs,
including sodium thiopental, that have been used to carry out executions. . . . Earlier this year,
Nebraska was told by the FDA that it could not legally import the drug it needed to carry out
lethal injections after the state paid $54,400 for drugs from Harris Pharma, a distributor in India.
When [Arizona’s lethal injection] drugs arrived via British Airways at the Phoenix International
Airport in July, they were seized by federal officials and have not been released, according to the
documents. [T]he FDA has not budged.”).
8
Id.
9
Doc. 75-2 (“[The FDA’s letter] impli[ed] . . . that the importation of sodium thiopental is
currently prohibited. . . . [I]t is [Ohio’s] position that the FDA’s apparent belief that [case law]
completely prohibit[s] the importation of sodium thiopental grossly overstates what the courts’
actual rulings were. . . .”).
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Although Brooks contends that a single dose of sodium thiopental would
constitute an effective lethal injection protocol, we are uncertain whether it has
ever been used before as a stand-alone execution drug. Brooks alleges that
“experts [have] stated” that a sufficient dose of sodium thiopental “would cause
death without need of a paralytic or potassium chloride,” but he cites no support
for that allegation. Furthermore, while he alleges that it was “the primary drug
used in three-drug protocols for over a decade,” he does not say that it has ever
been used as the sole drug in a lethal injection execution. Without some palpable
evidence that sodium thiopental is currently “known and available” to the ADOC
and would constitute a viable alternative method of execution -- and Brooks has
offered us only two newspaper articles and a letter to the FDA -- there is nothing
remotely resembling a showing of a substantial likelihood that Brooks could satisfy
this prong of the Glossip test.
Brooks’s third proposed alternative is to use midazolam alone, and not in
concert with two other drugs. Alabama already uses midazolam as the first drug in
its three-drug cocktail. And it is undisputed that midazolam is currently available
to the ADOC. But the only evidence that Brooks has provided us regarding the
efficacy of a single-drug execution protocol using midazolam is a citation to
Glossip, where the Court noted that the district court had found that “a massive
500-milligram dose” of midazolam “will likely cause death in under an hour.”
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Glossip, 135 S. Ct. at 2741 n.4. Brooks admits in his complaint that a single drug
lethal injection protocol using midazolam “has not previously been used,” and
“there are still questions concerning whether the ceiling effect of midazolam would
preclude a fatal dose of the drug.” Still, Brooks alleges that the defendants cannot
justify using the second and third drug in the execution protocol given the
increased risk of pain that they pose.
On this record, Brooks has failed to show a substantial likelihood that a
single-drug execution protocol using only midazolam is a feasible, readily
implementable, and significantly safer method of execution. For starters, Brooks’s
admissions that a midazolam-only protocol has never been used in an execution
and, furthermore, that midazolam’s ceiling effect may render it non-lethal deeply
undercut his claim that it is a known, readily implementable, and materially safer
lethal injection alternative. Given the paucity of Brooks’s evidentiary proffer, we
see no likelihood (let alone a substantial likelihood) that he would be able to
establish that a heretofore untested lethal injection protocol involving only
midazolam is materially safer than a protocol that is identical to one approved by
the Supreme Court not seven months ago. See Glossip, 135 S. Ct. at 2734-35.
Furthermore, there is a fundamental tension in Brooks’s argument. On the
one hand, Brooks seems to concede that midazolam will render him deeply
unconscious and insensate to pain, resulting in a pain-free death. On the other
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hand, he contends that midazolam will not render him sufficiently insensate to pain
when followed by an injection of the other two drugs in Alabama’s protocol. We
do not see how he can argue, without evidentiary support, that midazolam alone
can be used to render him unconscious and painlessly kill him, and in the same
breath say that the drug ought not be used as the first drug because it will not
render him insensate when used with two other drugs. The bottom line is that
Brooks has failed to adequately show that a single-injection midazolam protocol is
“an alternative that is feasible, readily implemented, and in fact significantly
reduce[s] a substantial risk of severe pain,” when compared to Alabama’s current
three-drug protocol. Id. at 2737 (quotation omitted).
In short, Brooks has failed to show a substantial likelihood that there is a
known, readily available, and materially safer method of execution. Nothing we
say should be read as holding that single-injection drug protocols could not offer
valid alternatives. Rather, on this record, we hold only that Brooks has failed to
show that Alabama’s three-drug protocol creates “a demonstrated risk of severe
pain” and that “that risk is substantial when compared to the known and available
alternatives.” Id. The district court did not abuse its discretion in denying the
motion for stay. 10
10
Brooks also argues that, in light of our decision in Arthur v. Thomas, 674 F.3d 1257 (11th Cir.
2012), the district court erred in denying him a stay of execution without first conducting an
evidentiary hearing. However, in Arthur, the district court had dismissed the prisoner’s
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III.
We are constrained to affirm the district court’s denial of Brooks’s motion
for stay for yet another reason -- there is no substantial likelihood of success on his
Eighth Amendment claim because it is, as the district court plainly found, time-
barred. It is well settled that “a method of execution claim accrues on the later of
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.” McNair v.
Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). Our precedent makes clear that a
“substantial change” is one that “significantly alter[s] the method of execution.”
Gissendaner, 779 F.3d at 1282.
The statute of limitations applicable to Brooks’s Eighth Amendment claim is
two years. See Ala. Code § 6-2-38 (1975) (establishing a two-year statute of
limitations for personal injury actions); McNair, 515 F.3d at 1173 (holding that
courts must look to state’s personal injury statute of limitations to determine statute
of limitations under § 1983). As the district court detailed, the statute of
limitations for Brooks’s claim began to run on July 31, 2002, the date that
complaint. See Mann v. Palmer, 713 F.3d 1306, 1316 (11th Cir. 2013) (“In Arthur, the district
court had summarily dismissed the inmate’s complaint solely on the basis of the statute of
limitations . . . and [w]e did not consider whether Arthur had stated a plausible claim under the
Eighth Amendment. Nor did we consider whether Arthur could establish that he had a
substantial likelihood of success on the merits to warrant a stay of execution.”). In this case, we
are faced only with the district court’s denial of a stay of execution, which requires Brooks to
establish a substantial likelihood of success on the merits, and not with the dismissal of a
complaint, which would have required him to plausibly allege an Eighth Amendment violation.
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Alabama changed its method of execution to a three-drug lethal injection protocol.
At that time, his state court review had been finalized (since 1997), and Brooks
knew that he was subject to execution by lethal injection rather than by
electrocution. Therefore, he should have filed his claim by July 31, 2004. He did
not, waiting instead until November 2, 2015, to intervene in the Midazolam
Litigation.
Brooks argues, however, that Alabama’s switch on September 11, 2014, to a
protocol using midazolam as the first drug signals a “substantial change” in the
protocol that operates to reset the statute-of-limitations clock. We are
unpersuaded.
It is undisputed that Alabama has used a three-drug protocol since it began
performing executions by lethal injection in 2002. Brooks also admits that
potassium chloride has always been the third drug in the protocol, and that the
second drug has always been a paralytic -- either pancuronium bromide or
rocuronium bromide. But Alabama has changed the first drug twice: From 2002
until April 6, 2011, Alabama used sodium thiopental as the first drug in the three-
drug sequence. From 2011 to September 10, 2014, it used pentobarbital as the first
drug. And since September 11, 2014, it has used midazolam as the first drug.
The crux of Brooks’s argument is that the three-drug protocol Alabama
implemented on September 11, 2014, constitutes a substantial change because
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midazolam as the first drug -- as opposed to pentobarbital or sodium thiopental --
is not an effective analgesic (or pain reliever). But he has provided no evidence to
show that pentobarbital or sodium thiopental would have been any more effective
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.
Because he has proffered nothing to establish, by a substantial likelihood, that
midazolam constituted a “substantial change” from the earlier protocols, we cannot
say that the 2014 switch to midazolam triggered a new statute-of-limitations
period.
Moreover, as the Supreme Court recognized in Glossip, “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.” 135 S. Ct. at 2739-40 (citing, e.g.,
Chavez v. Florida SP Warden, 742 F.3d 1267 (11th Cir. 2014); Howell v. State,
133 So. 3d 511 (Fla. 2014)). The Supreme Court pointed out that midazolam had
been used “without any significant problems” in twelve executions, 135 S. Ct. at
2746, and that testimony from both sides supported the district court’s conclusion
that midazolam can render a prisoner unconscious and insensate during the
remainder of a three-drug procedure, id. at 2741. Indeed, the very three-drug
protocol approved by the Supreme Court in Glossip is the same one Alabama will
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use here. Id. at 2734-35. Brooks has given us no reason to believe that Alabama’s
use of midazolam in Alabama’s three-drug protocol would lead to any different
result than it has elsewhere. Nor, more to the point, has he established a
substantial likelihood that the substitution of midazolam for pentobarbital was a
“substantial change” to Alabama’s protocol, or that it “significantly alter[ed] the
method of execution.” Gissendaner, 779 F.3d at 1282.
IV.
We offer a final comment on the effect of Brooks’s delay in bringing a
§ 1983 method of execution suit on the analysis of his motion for stay of
execution. Injunctive relief, including a stay of execution, is “an equitable remedy
that is not available as a matter of right.” Grayson v. Allen, 491 F.3d 1318, 1322
(11th Cir. 2007). “[T]he equitable principles at issue when inmates facing
imminent execution delay in raising their § 1983 method-of-execution claims are
equally applicable to requests for both stays and injunctive relief.” Id.; see also
Williams v. Allen, 496 F.3d 1210, 1212-13 (11th Cir. 2007). As the Supreme
Court has unanimously instructed on multiple occasions, courts considering
whether to grant a stay of execution “must be sensitive to the State’s strong interest
in enforcing its criminal judgment without undue interference from the federal
courts,” and “must . . . apply ‘a strong equitable presumption against the grant of a
stay [of execution] where a claim could have been brought at such time as to allow
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consideration of the merits without requiring entry of a stay.’” Hill v.
McDonough, 547 U.S. 573, 584 (2006) (quoting Nelson v. Campbell, 541 U.S.
637, 650 (2006)). Indeed, “[t]he federal courts can and should protect States from
dilatory or speculative suits.” Id. at 585.
The district court squarely found that Brooks had exhibited “unreasonable,
unnecessary, and inexcusable delay in bringing suit” that prevented his method of
execution claim from being adjudicated without granting a stay of execution.
Therefore, applying a strong presumption against granting equitable relief, it found
that the equities weighed against granting a stay of execution. We review the
district court’s finding that Brooks’s delay was unnecessary and inexcusable for
clear error. Grayson, 491 F.3d at 1324-25.
The district court summarized Brooks’s delay this way:
The chronology of Brooks’s post-conviction litigation time-line and
other significant developments reflect that his November 2, 2015
motion to intervene in the method-of-execution challenge presented in
this Midazolam Litigation comes: (1) nineteen months after the U.S.
Supreme Court denied certiorari on Brooks’s habeas petition; (2)
fourteen months after the State of Alabama announced it was
changing its execution protocol by substituting midazolam for
pentobartital as the first drug administered in the three-drug, lethal-
injection sequence; (3) four months after Glossip was decided; (4) five
weeks after the State moved (for a second time) to set an execution
date for Brooks; (5) a year or more after his co-Plaintiffs filed in the
Midazolam Litigation . . . ; and (6) eleven weeks and four days prior
to his January 21, 2016 execution date.
Doc. 93 at 30.
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Brooks does not challenge any of these facts, but proffers a laundry list of
reasons to explain why his delay prior to challenging Alabama’s execution
protocol should be excused. In short, he argues that he had no reason to challenge
Alabama’s protocol because other inmates were already litigating Eighth
Amendment challenges, and he had “no reason to believe” that the state would
seek to execute him while there were ongoing challenges to its execution protocol.
Brooks’s speculation that the state would not seek to execute him while
others were challenging its protocol does not excuse his lengthy delay in asserting
his own rights. On March 24, 2014, the Supreme Court denied certiorari review of
the order dismissing Brooks’s petition for a writ of habeas court, Brooks v.
Thomas, 134 S. Ct. 1541 (2014), which “eliminate[d] the last possible obstacle to
[his] execution.” Grayson, 491 F.3d at 1325 (quotation omitted). Since then, he
was under a sentence of death and had no pending litigation challenging that
sentence or the method of execution. Yet for nineteen months, during which time
the state twice sought an execution date for him, he did nothing to challenge any
execution protocol. Not until five weeks after the state’s second motion for an
execution date did he seek to intervene in litigation challenging the protocol.
Excusing Brooks’s delay simply because other inmates were challenging the
protocol would mean that inmates have no obligation to timely file in the first
instance or intervene in protocol challenges. In reality, every state’s method of
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lethal injection is perennially being challenged. The district court did not clearly
err when it determined that Brooks had unnecessarily delayed in seeking to
challenge Alabama’s protocol.
Brooks insists, nevertheless, that the state has contributed to the delay in this
case and, therefore, it cannot rely on his own unreasonable delay to defeat his
motion for a stay. He first faults the state for trying to “force the District Court to
take action” in the Midazolam Litigation, and then accuses the state of attempting
to “avoid any type of hearing on the merits of its execution protocol.” However, in
its order denying the motion to stay, the district court explained that the decision to
delay the hearings in the Midazolam Litigation until April 2016 was needed due to
the discovery schedule, and that the delay was not objected to by the plaintiffs. In
essence, Brooks is faulting the state for not accommodating him by waiting to seek
an execution date until all outstanding Eighth Amendment challenges by all
plaintiffs to its protocol are resolved. Nothing in the record suggests that the state
prevented Brooks from filing a challenge to Alabama’s execution protocol or from
joining a long-existing challenge at a time when his suit could have been
considered on the merits. The district court did not commit clear error when it
found that Brooks was responsible for his delay in seeking to challenge the
execution protocol.
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Brooks still argues that the equities favor a stay because he will suffer
irreparable harm if he is executed, whereas the state will only suffer the minimal
inconvenience of having to postpone his hearing until after the Midazolam
Litigation evidentiary hearing. But, as the Supreme Court has recognized, the
state, the victim, and the victim’s family also “have an important interest in the
timely enforcement of [Brooks’s] sentence.” Hill, 547 U.S. at 584. After all,
Brooks raped and murdered Jo Deann Campbell on December 31, 1992, and he
was convicted of three counts of capital murder by a jury and sentenced to die for
his crimes in 1993. Brooks’s delay in asserting his rights undermines his argument
because, “[i]f [he] truly had intended to challenge Alabama’s lethal injection
protocol, 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, 491 F.3d at 1326; Jones v. Allen, 485 F.3d 635, 640 (11th
Cir. 2007) (subsequent history omitted) (By waiting so long “to file his challenge
to the State’s lethal injection protocol, Jones leaves little doubt 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.” (internal quotation marks
omitted)). His delay in challenging the protocol also created a “strong equitable
presumption” against granting a stay of execution, Hill, 547 U.S. at 584 (quotation
omitted), and he has failed to overcome that presumption.
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V.
In sum, Brooks has failed to show a substantial likelihood that he will
succeed on the merits of his Eighth Amendment challenge for two reasons. First,
he has failed to establish (as he must) a substantial likelihood that there are readily
available alternative methods of execution that pose a substantially lower risk of
severe pain relative to Alabama’s current lethal injection protocol. And second, he
has not established a substantial likelihood that his Eighth Amendment claim was
brought within the two-year statute of limitations. Finally, given his unnecessary
and unjustifiable delay in challenging Alabama’s lethal injection protocol, he has
not established that the equities favor granting his requested stay. For each of
these independent reasons, we are satisfied that the district court did not abuse its
discretion in denying Brooks’s motion for a stay of execution, and that his
emergency motion for stay filed in this Court must be denied.
AFFIRMED AND MOTION FOR STAY OF EXECUTION DENIED.
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