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[Publish]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10277
________________________
D.C. Docket No. 1:15-cv-04445-CAP
BRANDON ASTOR JONES,
Plaintiff - Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,
OTHER UNKNOWN EMPLOYEES AND AGENTS,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 2, 2016)
Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.
BY THE COURT:
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A petition for hearing en banc having been filed, a member of this Court in
active service having requested a poll on whether this case should be heard by the
Court sitting en banc, and a majority of the judges in active service on this Court
having voted against granting a hearing en banc, IT IS ORDERED that the Petition
for Hearing En Banc is DENIED.
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MARCUS, Circuit Judge, joined by ED CARNES, Chief Circuit Judge, and
TJOFLAT, HULL, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges,
concurring in the denial of initial hearing en banc.
We concur in the denial of initial hearing en banc for the reasons stated in
the panel order denying Jones’s motion for stay. We attach a copy of the panel
order hereto. We add these additional thoughts.
The sole issue presented in Jones’s petition for initial hearing en banc is
whether Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260 (11th Cir. 2014),
incorrectly decided that “[n]either the Fifth, Fourteenth, or First Amendments
afford [a prisoner] the broad right to know where, how, and by whom the lethal
injection drugs will be manufactured, as well as the qualifications of the person or
persons who will manufacture the drugs, and who will place the catheters.” Id. at
1267 (quotations omitted). While Jones’s complaint in the district court alleged
an Eighth Amendment challenge to Georgia’s method of execution as well as a
separate due process challenge to Georgia’s Lethal Injection Secrecy Act,
O.C.G.A. § 42-5-36, he has not appealed from the district court’s dismissal of the
Eighth Amendment claim. Thus, Jones has chosen to raise only a free-standing
due process claim for discovery, untethered to any other claim currently in
litigation.
To ignore Jones’s deliberate framing of his appeal runs afoul of the general
rule that “[o]ur adversary system is designed around the premise that the parties
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know what is best for them, and are responsible for advancing the facts and
arguments entitling them to relief.” Greenlaw v. United States, 554 U.S. 237, 243-
44 (2008) (quotation omitted). In our system, “we rely on the parties to frame the
issues for decision and assign to courts the role of neutral arbiter of matters the
parties present.” Id. at 243. Jones has not raised an Eighth Amendment claim on
appeal, so we would not raise one for him. And because the Supreme Court has
held that there is no due process right to “discover grievances, and to litigate
effectively once in court,” see Lewis v. Casey, 518 U.S. 343, 354 (1996), his free-
standing due process challenge to Georgia’s secrecy statute is unmeritorious.
But even if we were empowered to revive Jones’s Eighth Amendment
method-of-execution challenge and were inclined to do so, it would not get Jones
very far. What Jones is seeking is a newly created federal due process right to pre-
litigation discovery, ultimately in the hopes of challenging Georgia’s lethal
injection protocol in federal court. But Federal Rule of Civil Procedure 8 required
that Jones allege “enough facts to state a claim to relief that is plausible on its face”
before he was entitled to discovery on his Eighth Amendment claim. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Nobody -- including Jones
-- suggests that Jones adequately pled an Eighth Amendment claim in his
complaint. By insisting that he has a right to discovery in the absence of
presenting a well-pleaded complaint, Jones travels on the novel idea that the law
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will (or should) allow discovery first, and only then require him to meet the
standards prescribed by the Supreme Court in Baze v. Rees, 553 U.S. 35, 50, 52
(2008) (plurality opinion), and Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015).
But the High Court has unambiguously required a plaintiff mounting a
“successful[] challenge [to] a method of execution” to plead -- and if he seeks a
stay to present some proof -- that (1) “the State’s lethal injection protocol creates a
demonstrated risk of severe pain,” and (2) there is an alternative that is “feasible,
readily implemented, and in fact significantly reduces a substantial risk of serious
pain.” Glossip, 135 S. Ct. at 2737 (alteration adopted and quotation omitted). And
it is undeniable that Jones’s complaint ignores the second requirement, alleging
only at the highest order of abstraction that Georgia could “obtain their drugs from
a different source.”
Moreover, even if we were to assume that Wellons was wrongly decided and
that Jones has some abstract and inchoate due process right to discover the identity
of the source of the drugs and the name of the executioner so that he may challenge
Georgia’s execution protocol, we fail to see how Jones would have standing to
challenge the Georgia secrecy statute. The Georgia secrecy statute only protects
the identity of Georgia’s drug source and the name of the executioners. See
O.C.G.A. § 42-5-36(d). It does not deprive Jones of the ability to locate an
alternative source. The relief he seeks -- to overrule Wellons and strike down
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Georgia’s statute -- would not, as we see it, enable him to plead a known and
available alternative source of pentobarbital.
To the extent our dissenting colleagues suggest that Wellons did not perform
the due process analysis required by Mathews v. Eldridge, 424 U.S. 319 (1976), it
is worth noting that Jones has never so much as mentioned Mathews in any
argument he’s presented to this Court or suggested to us how the kind of balancing
Mathews calls for would apply here. Moreover, as the Eighth Circuit observed in
Zink v. Lombardi, 783 F.3d 1089 (8th Cir. 2015):
[T]he prisoners seek to discover information about the State’s lethal-
injection protocol in order to determine whether the protocol violates
the Eighth Amendment. The prisoners, however, have not pleaded a
deprivation of rights under the Eighth Amendment. This is not a case
like Mathews, therefore, where there was an undisputed deprivation of
an interest protected by the Due Process Clause, and the question was
what process is due before the State may accomplish the deprivation.
Rather, the prisoners here . . . claim a freestanding right to detailed
disclosure about Missouri’s execution protocol. A prisoner’s
“assertion of necessity -- that [the State] must disclose its protocol so
he can challenge its conformity with the Eighth Amendment -- does
not substitute for the identification of a cognizable liberty interest.”
Id. at 1109 (citation omitted) (quoting Sepulvado v. Jindal, 729 F.3d 413, 419 (5th
Cir. 2013)). While the Eighth Amendment surely protects Jones from the
deliberate infliction of unnecessary pain during his execution, Jones has failed to
allege a plausible claim that Georgia’s protocol threatens that interest. Having
failed to identify any liberty interest placed in jeopardy by Georgia, the due
process balancing required by Mathews offers him little help today.
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Finally, we repeat what the panel said about the equities: we ought to be
particularly reluctant to interfere in Georgia’s enforcement of its lethal injection
protocol since its current protocol -- using compounded pentobarbital provided by
an undisclosed source -- has actually been used at least seven times in the last year,
without incident. See Terrell v. Bryson, 807 F.3d 1276, 1279 (11th Cir. 2015)
(Marcus, J., concurring). Moreover, when Georgia suspected there was a problem
with its two batches of “cloudy” drugs last spring, it postponed the scheduled
executions until it could look into the matter. Id. There has been no claim that
Georgia has encountered cloudy drugs since, nor that it has ever used contaminated
drugs in an execution. Georgia also complied with the Open Records Act in
providing Jones with its analysis, the drug logs, and its testing results.
Jones has done nothing to suggest that he has diligently prosecuted any
claim challenging Georgia’s secrecy law. He waited until almost three years after
the codification of O.C.G.A. § 42-5-36 and over nine months after Georgia
publicly disclosed its discovery of the “cloudy” pentobarbital before commencing
this 42 U.S.C. § 1983 suit in federal district court at the end of December 2015.
On this record, we are hard pressed to see how this case is exceptionally
important, important enough to take the extraordinary step of initial en banc review
at this late hour. Every death case is important, and deserves our careful scrutiny.
But even if we were to grant him the relief he seeks -- declaring the Georgia
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secrecy statute unconstitutional -- we do not see how Jones would benefit. He
would have us strike down Georgia’s secrecy law, overturn Wellons, and require
the district court to allow discovery about Georgia’s source of pentobarbital, all in
the hope that learning the identity of the manufacturer will somehow provide a
springboard to establish a potential, if currently unidentifiable, infirmity in
Georgia’s execution protocol. That asks us to do too much.
This Court properly denied en banc review.
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ATTACHMENT
Date Filed: 02/01/2016
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10277
________________________
D.C. Docket No. 1:15-cv-04445-CAP
BRANDON ASTOR JONES,
Plaintiff - Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,
OTHER UNKNOWN EMPLOYEES AND AGENTS,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
Before MARCUS, WILSON and WILLIAM PRYOR, Circuit Judges.
MARCUS, Circuit Judge:
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In this capital case, Brandon Astor Jones appeals from the district court’s
recent order dismissing his civil rights complaint challenging Georgia’s method of
execution as violating the Fifth, Eighth, and Fourteenth Amendments. Jones’s
execution is currently scheduled for February 2, 2016 at 7:00 p.m. EST. Just a
week before the scheduled execution, Jones petitioned our full Court for initial en
banc review of that appeal; he also contemporaneously moved us for an emergency
stay of execution. Although the petition for en banc review is now pending before
the full Court, the application for a stay was filed with the panel, not the en banc
court, and under our Local Rules, the emergency motion for stay is properly before
the three-judge panel assigned to this case. See 11th Cir. R. 35-4 (“A petition for
rehearing en banc tendered with respect to [an order ruling on a request for stay]
will not be considered by the court en banc, but will be referred as a motion for
reconsideration to the judge or panel that entered the order sought to be reheard.”).1
In his § 1983 complaint -- just filed on December 22, 2015, in the Northern
District of Georgia -- Jones alleged that Georgia’s method of execution amounts to
cruel and unusual punishment in violation of the Eighth Amendment, and that
Georgia’s Lethal Injection Secrecy Act, O.C.G.A. § 42-5-36, deprives him of the
information necessary to challenge its lethal injection protocol, in violation of his
1
At the time this opinion has issued, the en banc Court has not issued an order granting or
denying the petition for hearing en banc. The motion for stay is not moot.
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due process rights embodied in the Fifth, Eighth, and Fourteenth Amendments.2
The district court dismissed the complaint in its entirety because, it ruled, Jones’s
claims were barred by binding Circuit precedent. In this emergency motion, Jones
says that he seeks a stay of execution pending the full Court’s resolution of his en
banc petition. He seeks en banc review over the following question:
Does Georgia’s lethal injection secrecy act violate Mr. Jones’s Fifth,
Eighth, and Fourteenth Amendment rights?
Notably, Jones has not challenged in either his petition for en banc review or in the
motion for stay the district court’s dismissal of his Eighth Amendment method-of-
execution claim. 3
2
Georgia’s lethal injection secrecy statute provides:
The identifying information of any person or entity who participates in or
administers the execution of a death sentence and the identifying information of
any person or entity that manufactures, supplies, compounds, or prescribes the
drugs, medical supplies, or medical equipment utilized in the execution of a death
sentence shall be confidential and shall not be subject to disclosure under Article
4 of Chapter 18 of Title 50 or under judicial process. Such information shall be
classified as a confidential state secret.
O.C.G.A. § 42-5-36(d)(2); see id. § 42-5-36(d)(1) (defining “identifying information” as “any
records or information that reveals a name, residential or business address, residential or business
telephone number, day and month of birth, social security number, or professional
qualifications”).
3
The remaining background and procedural history of this case have been laid out most recently
and at some length in Jones v. GDCP Warden, __ F.3d __ (11th Cir. Jan. 28, 2016). There, we
just denied Jones’s motion to recall the mandate in his prior habeas case, Jones v. GDCP
Warden, 753 F.3d 1171 (11th Cir. 2014), and his motion for stay of execution based on the
motion to recall. On January 27, 2016, Jones filed a successive habeas corpus petition in state
court arguing that his sentence is unconstitutionally disproportionate and excessive in violation
of the Eighth and Fourteenth Amendments. That claim has not been filed in federal court. Jones
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I.
It is by now axiomatic 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). “[T]he equitable principles at issue when inmates
facing imminent execution delay in raising their . . . challenges are equally
applicable to requests for both stays and injunctive relief” which are “not available
as a matter of right.” Williams v. Allen, 496 F.3d 1210, 1212-13 (11th Cir. 2007)
(internal quotations omitted). “[L]ike other stay applicants, inmates seeking time
to challenge the manner in which the State plans to execute them must satisfy all of
the requirements for a stay, including a showing of a significant possibility of
success on the merits.” Hill v. McDonough, 547 U.S. 573, 584 (2006).
After careful review, we deny Jones’s emergency motion for stay because he
has not shown a substantial likelihood of success on the merits and the equities
counsel against imposing the stay.
A.
also filed an accompanying motion for stay of execution in state court. On January 29, 2016,
Georgia’s superior court denied both motions.
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We begin with the first and most important question concerning a stay:
whether Jones has shown a substantial likelihood of success on the merits of his
due process claim. Our binding precedent forecloses Jones’s due process claim,
and thus Jones cannot show a substantial likelihood of success. See Terrell v.
Bryson, 807 F.3d 1276 (11th Cir. 2015); Wellons v. Comm’r, Ga. Dep’t of Corr.,
754 F.3d 1260 (11th Cir. 2014). In Wellons, a prisoner argued that “the dearth of
information regarding the nature of the pentobarbital that will be used in his
execution and the expertise of those who will carry it out violates the First
Amendment [and] his right to due process.” 754 F.3d at 1267. Relying on
Supreme Court precedent, a panel of this Court held that “[n]either the Fifth,
Fourteenth, or First Amendments afford [a prisoner] the broad right to know
where, how, and by whom the lethal injection drugs will be manufactured, as well
as the qualifications of the person or persons who will manufacture the drugs, and
who will place the catheters.” Id. at 1267 (quotations omitted). The Supreme
Court denied a petition for certiorari. Wellons v. Owens, 134 S. Ct. 2838 (2014).
We reapplied this holding and rejected another identical claim in Terrell, 807 F.3d
at 1276, and again the Supreme Court denied certiorari, Terrell v. Bryson, No. 15-
7282, 577 U.S. (Dec. 8, 2015).
Under our Circuit’s prior precedent rule, we are bound to follow a prior
binding precedent “unless and until it is overruled by this court en banc or by the
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Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.
2008) (quotation omitted). Jones has not argued that Wellons conflicts with any of
our decisions or those of the Supreme Court. His claim is foreclosed by our
precedent and he cannot succeed on the merits.
Moreover, no other circuit court has ever recognized the kind of due process
right-of-access claim that Jones now asserts, and the two other circuit courts of
appeal that have faced similar challenges to this kind of state secrecy law have
each squarely rejected the claim twice. See Zink v. Lombardi, 783 F.3d 1089,
1109 (8th Cir. 2015), cert. denied, 135 S. Ct. 2941 (2015) (“We agree with the
Eleventh and Fifth Circuits that the Constitution does not require such disclosure.
A prisoner’s ‘assertion of necessity -- that [the State] must disclose its protocol so
he can challenge its conformity with the Eighth Amendment -- does not substitute
for the identification of a cognizable liberty interest.’” (citations omitted)); Trottie
v. Livingston, 766 F.3d 450, 452 (5th Cir. 2014), cert. denied, 135 S. Ct. 41 (2014)
(“A due process right to disclosure requires an inmate to show a cognizable liberty
interest in obtaining information about execution protocols. Trottie speculates that
there are unknowns regarding the drug to be used which may add an unacceptable
risk of pain and suffering. However, we have held that an uncertainty as to the
method of execution is not a cognizable liberty interest.”); Sepulvado v. Jindal, 729
F.3d 413, 420 (5th Cir. 2013) (“There is no violation of the Due Process Clause
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from the uncertainty that Louisiana has imposed on Sepulvado by withholding the
details of its execution protocol.”); Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir.
2011) (holding that the prisoners, who argued that the Arkansas Method of
Execution Act violated the due process clause because its secrecy denied them “an
opportunity to litigate” their claim that the execution protocol violated the Eighth
Amendment, failed to state a plausible due process access-to-the-courts claim). 4
Jones has not identified any cognizable liberty interest infringed by the
Georgia secrecy law nor has he even begun to describe the framework for
analyzing this novel constitutional right. Jones challenges the Georgia statute
pursuant to 42 U.S.C. § 1983, which “is not itself a source of substantive rights”
and requires Jones to “identify the specific constitutional right allegedly infringed.”
Albright v. Oliver, 510 U.S. 266, 271 (1994). The sole question Jones presents in
this motion for stay -- and indeed the only one for which he seeks initial en banc
review -- is whether Georgia’s secrecy law violates his claimed Fifth and
Fourteenth Amendment rights “to know where, how, and by whom the lethal
injection drugs will be manufactured, as well as the qualifications of the person or
4
We recognize that the Ninth Circuit addressed a similar claim in Wood v. Ryan, 759 F.3d 1076,
1077-78 (9th Cir.), vacated, 135 S. Ct. 21 (2014). There, the prisoner sought information from
the Arizona Department of Corrections regarding the method of his execution, and argued that
by withholding this information, the Department had violated his First Amendment rights. The
district court denied a preliminary injunction, and the Ninth Circuit reversed, concluding that
“Wood has presented serious questions going to the merits of his claim.” Id. However, the
Supreme Court promptly reversed that decision, without opinion or dissent, and granted the
state’s application to vacate the judgment. Ryan v. Wood, 135 S. Ct. 21 (mem) (2014).
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persons who will manufacture the drugs, and who will place the catheters,”
Wellons, 754 F.3d at 1267 (quotations omitted), so that he may effectively
challenge Georgia’s lethal injection protocol. While his complaint in the district
court alleged an Eighth Amendment challenge to Georgia’s method of execution as
well as a separate challenge to the secrecy statute based on due process, he has not
appealed from the district court’s dismissal of the Eighth Amendment claim.
With the companion Eighth Amendment claim no longer at issue on appeal,
all we have before us is Jones’s stand-alone claim that Georgia’s secrecy statute
infringes his ability to “discover grievances, and to litigate effectively once in
court” -- a right the Supreme Court has told us the Constitution does not guarantee
to him. See Lewis v. Casey, 518 U.S. 343, 354 (1996). Having untethered the
Eighth Amendment claim from this appeal, Jones has no claim that implicates any
constitutional right. Thus, in challenging the Georgia secrecy statute, Jones has
failed to state a claim that § 1983 can redress.
B.
But even if we were to also consider Jones’s Eighth Amendment method-of-
execution challenge -- which was dismissed by the district court and is not a part of
his appeal -- in deciding whether to grant a stay, there is still a fatal flaw in that
claim: he has failed to adequately plead, let alone show a substantial likelihood,
that there is an “alternative that is feasible, readily implemented, and in fact
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significantly reduces a substantial risk of severe pain.” Glossip v. Gross, 135 S.
Ct. 276, 2737 (2015) (quotation omitted and alteration adopted); see also Baze v.
Rees, 553 U.S. 35, 50, 52 (2008) (plurality opinion)). The Supreme Court has
recently reiterated the elements of an Eighth Amendment method-of-execution
challenge and the necessary showing a prisoner must make to receive a stay of
execution:
[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.”
[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.”
The preliminary injunction posture of the present case thus requires
petitioners to establish 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.
Glossip, 135 S. Ct. at 2737 (2015) (citations omitted). Thus, prisoners seeking a
stay must “establish a likelihood that they can establish” both that (1) the protocol
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creates a “sure or very likely” risk of causing “serious harm,” and (2) this risk is
substantial when compared to the known and available alternatives.
Jones’s complaint ignores the second element, alleging only at the highest
order of abstraction that Georgia could “obtain their drugs from a different source.”
This conclusory allegation about an alternate source for the drugs does not provide
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint is insufficient to
satisfy Jones’s pleading burden under Federal Rule of Civil Procedure 8, which
required him to “plead[] factual content that allows the court to draw the
reasonable inference,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), that Georgia
has access to a “feasible, readily implemented” alternative source of pentobarbital,
Glossip, 135 S. Ct. at 2737. And because we are considering Jones’s motion to
stay, he is also required to present some body of evidence showing a substantial
likelihood that he would ultimately be able to prove this element. He has provided
us with nothing on this point. Having failed to adequately allege, let alone provide
factual support for the second element of his Eighth Amendment claim, Jones has
not shown a substantial likelihood that he will succeed on the merits of his Eighth
Amendment claim.
C.
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Jones’s application for stay encounters a third even more basic problem.
Even if we were to assume that Jones has some due process right to effectively
discover and litigate a potential Eighth Amendment violation -- which, as we’ve
explained, no court has ever sanctioned -- there is a serious and substantial
question about whether the Georgia statute has caused any harm to that right and,
therefore, whether Jones even has standing to challenge the statute.
In order to establish Article III standing, “a plaintiff must, generally
speaking, demonstrate that he has suffered injury in fact, that the injury is fairly
traceable to the actions of the defendant, and that the injury will likely be redressed
by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (quotations
omitted) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Standing “is a threshold jurisdictional question which must be addressed prior to
and independent of the merits of a party’s claims.” Bochese v. Town of Ponce
Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (quotation omitted); E.F. Hutton & Co.,
Inc. v. Hadley, 901 F.2d 979, 983 (11th Cir. 1990). “In fact, we are obliged to
consider standing sua sponte even if the parties have not raised the issue because
an appellate court must satisfy itself not only of its own jurisdiction, but also of
that of the lower courts in a cause under review.” AT&T Mobility, LLC v. Nat’l
Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007)
(quotation omitted).
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We do not see how Jones can claim “an injury in fact -- an invasion of a
legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical,” Lujan, 504 U.S. at 560 (quotations and
citations omitted) -- by operation of the Georgia statute. The Georgia secrecy law
has not prevented him from identifying an alternative source of pentobarbital that
was “feasible, readily implemented, and in fact significantly reduces a substantial
risk of severe pain” -- a requirement plainly prescribed by the Supreme Court in
Glossip, 135 S. Ct. at 2737, and Baze, 553 U.S. at 52, as a necessary predicate to
any Eighth Amendment method-of-execution claim. The Georgia statute only
protects information about the specific drug sources Georgia actually is using and
identifying information about any person or entity who participates in the
execution of a death sentence. See O.C.G.A. § 42-5-36(d). It does not deprive
Jones of the ability to locate an alternative source.
Because the Georgia secrecy statute has not likely injured Jones by
preventing him from pleading an otherwise valid Eighth Amendment claim, we do
not see how Jones has shown an injury in fact. Thus, on this record, granting Jones
the ultimate relief he seeks -- declaring that statute unconstitutional and fashioning
a new, freestanding constitutional right of access to discovery -- would not bring
him redress because that statute did not injure his ability to satisfy Glossip’s
requirements in the first place. “Relief that does not remedy the injury suffered
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cannot bootstrap a plaintiff into federal court; that is the very essence of the
redressability requirement.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
107 (1998). Without a concrete, particularized injury traceable to the Georgia
statute, we have real doubt about the justiciability of Jones’s abstract access to
information claim.
II.
Jones is not entitled to a stay of execution for still another reason: the
equities are not in his favor. Injunctive relief, including a stay of execution, is an
equitable remedy that is not available as a matter of right. Brooks v. Warden, __
F.3d __, 2016 WL 212427, at *9 (11th Cir. Jan. 19, 2016), cert. denied sub nom.
Brooks v. Dunn, No. 15-7787, 2016 WL 235248 (U.S. Jan. 21, 2016). As the
Supreme Court has recognized, “equity must be sensitive to the State’s strong
interest in enforcing its criminal judgments without undue interference from the
federal courts.” Hill, 547 U.S. at 584. We are particularly reluctant to interfere in
Georgia’s enforcement of the death penalty since its current protocol -- using
compounded pentobarbital provided by an undisclosed source -- has actually been
used at least seven times in the last year, without incident. See Terrell, 807 F.3d at
1279 (Marcus, J., concurring). Moreover, when Georgia suspected there was a
problem with its two batches of “cloudy” drugs last spring, it postponed the
scheduled executions until it could look into the matter. Id. There has been no
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claim that Georgia has encountered cloudy drugs since, nor that it has ever used
contaminated drugs in an execution. Georgia also complied with the Open
Records Act in providing Jones with its analysis, the drug logs, and its testing
results. In fact, in the most recent challenge to Alabama’s lethal injection protocol
-- which uses three drugs, none of which are pentobarbital -- the prisoner argued
that the state should be using a single-injection protocol of compounded
pentobarbital, the very thing that Georgia uses. See Brooks, 2016 WL 212427, at
*5.
Jones, for his part, has waited an awfully long time to ask this Court to stay
his execution. The Supreme Court has unanimously instructed the lower federal
courts on multiple occasions that we must apply “a strong equitable presumption
against the grant of a stay where a claim could have been brought at such time as to
allow consideration of the merits without requiring entry of a stay.” Hill, 547 U.S.
at 584 (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)). Jones’s challenge
to Georgia’s secrecy law amounts to a claim that could have easily been brought
long ago, but for reasons unknown to us, he did not do so.
Jones’s execution is set for this Tuesday, February 2, 2016 -- thirty-six years
after the murder and first death sentence was imposed, nineteen years after the
second death sentence was imposed and fifteen years after it became final, seven
years after Jones filed his current federal habeas petition, and thirteen months after
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we issued our mandate denying habeas relief in his original habeas case. Even
more significant, Jones’s specific challenge in this stay application is to Georgia’s
secrecy act, which was enacted thirty-four months ago in March 2013, and went
into effect four months later. And even if his challenge was sparked by the spring
2015 discovery of the cloudy pentobarbital, that incident was made known as early
as March 2, 2015. See Gissendaner v. Bryson, petition for cert. at 3, No. 14-8647
(U.S. Mar. 9, 2015) (“[O]n March 2, 2015 . . . Ms. Gissendaner’s lawyers received
a telephone call from . . . counsel for Respondents, who informed them that the
execution would not go forward that evening because Respondents’ drugs were
‘cloudy.’”). Indeed, Gissendaner filed a new challenge to Georgia’s protocol --
based on the March 2 discovery -- on March 9, 2015.
Yet during all of that time, Jones did nothing to challenge Georgia’s
execution protocol or its secrecy statute, even though nothing prevented him from
filing his § 1983 action anytime over the last three years, or even over the last
year. 5 Instead, Jones waited to file this § 1983 action in federal district court until
5
To the extent the claim has been made that prisoners under sentence of death face a “catch-22,”
because if they are required to challenge execution protocols in a timely manner, then the
protocols may change by the time of their execution date, we remain unpersuaded. Jones has not
raised a method-of-execution challenge on appeal, but rather a stand-alone due process challenge
to Georgia’s secrecy law. That law went into effect two-and-a-half years ago. If Jones -- who
was already under sentence of death at the time -- had a right to access the information protected
by the Georgia secrecy statute, as he claims, that right was infringed when the law went into
effect, and could have been challenged then.
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December 22, 2015. The district court dismissed the action on January 21, 2016;
and he did not file a notice of appeal with this Court until January 25, 2016, at
which point he moved this Court for a stay of execution and also petitioned the
Court to initially hear the case en banc. While each death case is very important
and deserves our most careful consideration, the fact that Jones has petitioned us
for a stay of execution only at the very last moment, and without adequate
explanation, also suggests to us that the equities do not lie in his favor.
The long and the short of it is that Jones cannot meet his burden for a stay.
Accordingly, his motion is denied.
DENIED.
But even if Jones’s petition is viewed as also having raised a method-of-execution
challenge, rather than just a claim about access to discovery, Jones faced no “catch-22” in being
required to assert his Eighth Amendment claims or lose them. If Jones had asserted his Eighth
Amendment challenge and then Georgia changed its execution protocol, he would have suffered
no prejudice because, if he was still concerned about a new protocol, he could have amended his
complaint or filed a new civil rights action. A far cry from a “catch-22,” timely challenges to a
state’s method of execution benefit both the state and its inmates. We can perceive no drawback
to the prisoner.
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WILSON, Circuit Judge, dissenting:
I do not believe that this court has jurisdiction to deny Brandon Jones’s
request for a stay. Moreover, I disagree with the Majority’s conclusions that Jones
has not shown a substantial likelihood of success on the merits and that the equities
counsel against imposing a stay. Therefore, I respectfully dissent.
First, Jones’s request for a stay is moot. Jones requested a stay pending this
court’s decision on whether to consider his challenge to Georgia’s Lethal Injection
Secrecy Act en banc, and, understanding that an en banc hearing will not take
place, this court’s decision to issue an opinion denying the motion is unnecessary.
Second, for the reasons discussed in my forthcoming dissent to this court’s
denial of Jones’s request for an en banc hearing, I believe that Georgia’s Lethal
Injection Secrecy Act violates his right to due process under the Fifth, Eighth, and
Fourteenth Amendments. The fact that Jones did not appeal the district court’s
decision on his Eighth Amendment method-of-execution claim does not doom his
due process claim. Contrary to the Majority’s assertions, Jones’s decision not to
appeal the district court’s dismissal of the method-of-execution claim does not
untether his due process challenge to the Secrecy Act from that claim. Jones
argues in his briefing that without access to information protected by the Secrecy
Act, his method-of-execution claim is foreclosed. In other words, Jones’s due
process claim is inextricably intertwined with his method-of-execution claim. In
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light of this close relationship, if we find the Secrecy Act unconstitutional, then we
have discretion to vacate and remand to allow the district court to consider Jones’s
method-of-execution claim. See 28 U.S.C. § 2106. Thus, Jones has stated a claim
involving imminent injury: the Secrecy Act violates his due process rights by
preventing him from pursuing his method-of-execution claim.
Finally, I find the Majority’s arguments regarding the equities wholly
unpersuasive, especially considering the recent factual and legal developments
relevant to Georgia’s lethal injection process and method-of-execution claims.
For these reasons and those to follow in my dissent from the denial of
Jones’s request for an en banc hearing, I dissent.
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WILSON, Circuit Judge, dissenting, joined by MARTIN, ROSENBAUM, and
JILL PRYOR, Circuit Judges, and as to Part I by JORDAN, Circuit Judge:
The Constitution’s prohibition against cruel and unusual punishment
protects persons who are sentenced to death from being executed in a manner that
denies basic human dignity. See U.S. Const. amend. VIII; Glossip v. Gross, 576
U.S. ___, ___, 135 S. Ct. 2726, 2737 (2015); Baze v. Rees, 553 U.S. 35, 50, 128 S.
Ct. 1520, 1531 (2008) (plurality opinion). Indeed, “[b]y protecting even those
convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the
government to respect the dignity of all persons.” Hall v. Florida, 572 U.S. ___,
___, 134 S. Ct. 1986, 1992 (2014) (internal quotation marks omitted). The Eighth
Amendment relies on the Fifth and Fourteenth Amendments for support in
fulfilling the constitutional promise of dignity in state-enforced deaths. That is to
say, if persons who are sentenced to death are denied a fair opportunity to
challenge an unconstitutional method of execution, then the Eighth Amendment’s
guarantee is meaningless. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341
U.S. 123, 170, 71 S. Ct. 624, 647–48 (1951) (Frankfurter, J., concurring)
(protecting the “elementary rights of men” requires “fairness” and “[a]n
opportunity to be heard”).
Here, the State of Georgia’s Lethal Injection Secrecy Act (Secrecy Act)
denies death row prisoners, such as Brandon Jones, a fair opportunity to protect
their Eighth Amendment rights because it precludes them from accessing
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information necessary to challenge their method of execution. As a result, these
prisoners are denied the “basic ingredient of due process”: “an opportunity to be
allowed to substantiate a claim before it is rejected.” See Ford v. Wainwright, 477
U.S. 399, 414, 106 S. Ct. 2595, 2604 (1986) (plurality opinion) (internal quotation
marks omitted). Seeking a fair opportunity to challenge his method of execution,
Jones requests that our court consider en banc whether the Secrecy Act violates his
right to procedural due process.
In Goldberg v. Kelly and subsequent cases, the Supreme Court put forth a
clear framework for examining procedural due process claims. See 397 U.S. 254,
262–63, 90 S. Ct. 1011, 1017–18 (1970) (“The extent to which procedural due
process must be afforded the [individual] is influenced by the extent to which he
may be condemned to suffer grievous loss . . . and depends upon whether the
[individual]’s interest in avoiding that loss outweighs the governmental interest [at
stake.]” (citation and internal quotation marks omitted)); Morrissey v. Brewer, 408
U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972). However, our court has consistently
rejected due process challenges to the Secrecy Act without applying this
framework. Our failure to perform the proper analysis in these cases was legal
error, and that error is fatal to our jurisprudence. Under the Goldberg line of cases,
the Secrecy Act violates the due process rights of Georgia’s death row prisoners,
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thereby undermining our Nation’s requirement that those sentenced to death be
humanely executed.
Accordingly, at a minimum, an en banc hearing is needed to rectify this
court’s failure to apply the proper procedural due process framework to challenges
to the Secrecy Act. Moreover, I believe that, were we to apply the proper
framework, we would conclude that the Secrecy Act is unconstitutional. For these
reasons, I respectfully dissent from our court’s denial of Jones’s request to consider
the constitutionality of the Secrecy Act en banc.
I
Prisoners seeking to challenge their method of execution as unconstitutional
under the Eighth Amendment face a “heavy burden.” Terrell v. Bryson, 807 F.3d
1276, 1281 (11th Cir. 2015) (per curiam) (Martin, J., concurring). To succeed on a
method-of-execution claim, a prisoner must show (1) “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,” and (2) “identify an alternative that is
feasible, readily implemented, and in fact significantly reduces a substantial risk of
severe pain.” Glossip, 135 S. Ct. at 2737 (alteration adopted and internal quotation
marks omitted). In the context of lethal injection, this means the prisoner must
present evidence that the State’s drug compound and/or injection process present a
significant risk of harm. In addition, the prisoner must know enough about the
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State’s drug compound to be able to offer a distinguishable, feasible alternative.
Thus, information regarding the composition of the State’s compound, the source
of the compound, the compound’s manufacturing process, and the actual injection
process is critical to raising a lethal injection method-of-execution claim. 1
Georgia relies on lethal injection to execute death row prisoners. In 2013,
Georgia enacted the Secrecy Act to protect information related to its lethal
injection process. 2 Under the Secrecy Act:
The identifying information of any person or entity who
participates in or administers the execution of a death
sentence and the identifying information of any person or
entity that manufactures, supplies, compounds, or
prescribes the drugs, medical supplies, or medical
equipment utilized in the execution of a death sentence
shall be confidential and shall not be subject to disclosure
. . . under judicial process.
Ga. Code § 42-5-36(d)(2). Hence, the Secrecy Act “effectively insulates” the
“source, quality, and composition of” the State’s lethal injection drug compound,
as well as details about the personnel tasked with carrying out executions—such as
their qualifications and training. See Terrell, 807 F.3d at 1281 (Martin, J.,
1
Indeed, one scholar has commented that, “because many [lethal injection drug
compound suppliers] lack the ingredients, equipment, and processes to make . . . drugs safely,
the practices of the drug supplier can be very relevant to the question of whether the lethal
injection procedure creates a substantial risk of significant pain.” Eric Berger, Lethal Injection
Secrecy and Eighth Amendment Due Process, 55 B.C. L. Rev. 1367, 1389 n.150 (2014).
2
See Rhonda Cook & Bill Rankin, Lethal Injection Secrecy Bill Wins Approval, Atlanta
J. Const. (Mar. 26, 2013 6:29 PM), http://www.ajc.com/news/news/stateregional-govt-
politics/lethal-injection-secrecy-bill-wins-approval/nW4tK/, archived at http://perma.cc/MV2W-
WXCS.
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concurring). In other words, the Secrecy Act protects the exact information
required to raise a method-of-execution claim under Glossip.
Shortly after the passage of the Secrecy Act, death row prisoners began
challenging its constitutionality, asserting that it violates their due process rights by
shielding information that is needed to pursue a method-of-execution claim. See
Wellons v. Commissioner, 754 F.3d 1260, 1266 (11th Cir. 2014) (per curiam);
Gissendaner v. Commissioner (Gissendaner II), 803 F.3d 565, 567 (11th Cir.
2015) (per curiam); Terrell, 807 F.3d 1276. These claims have divided our court,
resulting in three of the six judges who reviewed the claims writing separately to
voice concerns about the Secrecy Act’s constitutionality. See Wellons, 754 F.3d at
1267–68 (Wilson, J., concurring); Gissendaner II, 803 F.3d at 579 (Jordan, J.,
dissenting); Terrell, 807 F.3d at 1281 (Martin, J., concurring); id. at 1283 (Jordan,
J., concurring).
This court was first confronted with a challenge to the Secrecy Act in
Wellons. In that per curiam opinion, the majority held: “Neither the Fifth,
Fourteenth, or First Amendments afford [the appellant] the broad right to know
where, how, and by whom the lethal injection drugs will be manufactured, as well
as the qualifications of the person or persons who will manufacture the drugs, and
who will place the catheters.” Wellons, 754 F.3d at 1267 (internal quotation marks
omitted). However, we only cursorily addressed the due process issues presented
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by the Secrecy Act and did not engage in the Goldberg procedural due process
analysis. See id. When assessing subsequent challenges to the Secrecy Act, we
merely have deferred to Wellons instead of engaging in the proper constitutional
analysis, even in the face of legal and factual developments that indicate Wellons
was wrongly decided. 3 See Gissendaner II, 803 F.3d at 575–76; Terrell, 807 F.3d
at 1276–77. As noted above, due to this incomplete approach, our precedents are
legally deficient and contravene the Goldberg line of cases.
II
The Goldberg analysis is a two-step test for resolving procedural due
process claims. The first step requires a court to determine whether the interest at
stake triggers due process protections. See Morrissey, 408 U.S. at 481, 92 S. Ct. at
2600. “Whether any procedural protections are due depends on the extent to which
[the] individual will be condemned to suffer grievous loss.” Id., 92 S. Ct. at 2600
3
Post-Wellons, there have been legal and factual developments that heavily bear on the
constitutionality of the Act. First, in March 2015, Georgia delayed the execution of a death row
prisoner after the State determined that its drug compound was defective. See Gissendaner II,
803 F.3d at 570. Judge Jordan noted the relevance of this development in his Gissendaner II
dissent, asserting that “[the State] cannot hide behind [a] veil of secrecy once something has
gone demonstrably wrong with [its drug compound]. . . . It is not asking too much to require
Georgia to put on some evidence that will provide some level of confidence that its [drug
compound] is no longer a problem.” Id. at 579 (Jordan, J., dissenting). Second, subsequent to
Wellons, the Supreme Court decided Glossip, which clarified the method-of-execution standard
put forth in Baze. In Baze, seven justices wrote separately, creating confusion over the Court’s
holding and requiring the Court to revisit in Glossip the proper standard for challenging a
method of execution. See Glossip, 135 S. Ct. at 2793–95 (Sotomayor, J., dissenting). Glossip
confirmed that prisoners raising method-of-execution claims have a significant evidentiary
burden, thus underscoring the importance of these prisoners having access to information about
the challenged method.
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(internal quotation marks omitted) (citing Goldberg, 397 U.S. at 263, 90 S. Ct. at
1018). After determining that an individual’s interest requires some procedural
protection, the court must move to the second step. Id., 92 S. Ct. at 2600. Under
that step, the court is tasked with identifying the “specific dictates of due process”
demanded by the circumstances presented. See Mathews v. Eldridge, 424 U.S.
319, 334–35, 96 S. Ct. 893, 902–03 (1976). This inquiry requires a weighing of
“the governmental and private interests that are affected.” See id. at 334, 96 S. Ct.
at 902.
Applying the Goldberg analysis to Jones’s method-of-execution procedural
due process claim reveals that the Secrecy Act violates his constitutional rights.
First, Georgia prisoners sentenced to death face an imminent threat of “grievous
loss”—an inhumane execution—and thus are entitled to procedural protections
when challenging their method of execution.4 Second, weighing the interests of
Georgia’s death row prisoners, such as Jones, against those of the State of Georgia
demonstrates that the due process owed the prisoners encompasses the right to
access information shielded by the Secrecy Act.
A
A painful, inhumane execution is an imminent threat of “grievous loss”
faced by all those condemned to die at the hand of the State of Georgia. Generally,
4
In fact, I cannot surmise a more grievous loss than an excruciating execution that
violates one’s right to be free from cruel and unusual punishment.
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whether an individual is condemned to “grievous loss” depends on both the
“weight” of the individual’s interest and “whether the nature of the interest is one
within the contemplation of the ‘liberty or property’ language of the Fourteenth
Amendment.” See Morrissey, 408 U.S. at 481, 92 S. Ct. at 2600 (internal
quotation marks omitted). A Georgia prisoner facing execution has the weightiest
of interests in being free from a cruel and unusual execution—far less weighty
interests enjoy due process protections. 5 See, e.g., Cleveland Bd. of Educ. v.
5
Georgia has argued in the past that the interest at stake in method-of-execution claims is
not sufficiently weighty to warrant due process protections because, unlike other contexts where
the State’s decision will definitely violate an individual’s rights, there is only a risk that death
row prisoners will be deprived of their Eighth Amendment right to a humane execution.
However, given the grievousness of the loss at stake—a dehumanizing assault on an individual’s
body—and the prevalence of botched lethal injection executions, the interest at stake clearly
warrants some procedural protections. See Berger, supra note 1 at 1426 (“The series of recent
botched executions amply demonstrate that, far from being frivolous, inmates’ lethal injection
challenges identify very serious risks inherent in lethal injection, especially in states with a
history of problems.”); Mark Berman, Arizona Execution Lasts Nearly Two Hours; Lawyer Says
Joseph Wood Was “Gasping and Struggling to Breathe,” Wash. Post (July 23, 2014), http:
//www.washingtonpost.com/news/post-nation/wp/2014/07/23/arizona-supreme-court-stays-
planned-execution/; Mark Berman, Inmate Dies Following Botched Oklahoma Execution,
Second Execution Delayed, Wash. Post (April 29, 2014), http://www.washingtonpost.com
/news/post-nation/wp/2014/04/29/oklahoma-execution-botched-inmate-still-dies-second-
execution-delayed/; Erica Goode, After a Prolonged Execution in Ohio, Questions over “Cruel
and Unusual,” N.Y. Times (Jan. 17, 2014), http://www.nytimes.com/2014/01/18/us/ prolonged-
execution-prompts-debate-over-death-penalty-methods.html; Peter Baker, Obama Orders Policy
Review on Executions, N.Y. Times (May 2, 2014), http://www.nytimes.com/2014/
05/03/us/flawed-oklahoma-execution-deeply-troubling-obama-says.html; Andrew Buncombe,
Charles Warner Execution: Oklahoma Inmate’s Last Words Are “My Body Is On Fire” as State
Carries Out First Death Penalty in Nine Months, The Indep. (Jan. 15, 2015), http://
www.independent.co.uk/news/world/americas/charles-warner-execution-my-body-is-on-fire-
9981842.html. Considering Georgia’s recent problems with its lethal injection drug compound,
this is especially true for Georgia death row prisoners. See Gissendaner II, 803 F.3d at 579
(Jordan, J., dissenting); Tracy Connor, Georgia Execution of Kelly Gissendaner Postponed for
Drug Issue, NBC News (Mar. 3, 2015, 5:58 PM), http://www.nbcnews.com/storyline/lethal-
injection/georgia-execution-kelly-gissendaner-postponed-drug-issue-n315651; Declaration of
Michael Jay, Ph.D. at 8, Jones v. Bryson, No. 1:15-cv-04445-CAP (N.D. Ga. Jan. 21, 2016)
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Loudermill, 470 U.S. 532, 538–41, 105 S. Ct. 1487, 1491–92 (1985) (protecting
property interest in civil servant job); Memphis Light, Gas & Water Div. v. Craft,
436 U.S. 1, 9–11, 98 S. Ct. 1554, 1560–61 (1978) (protecting interest in receiving
public utilities). In addition, there is no doubt that a prisoner’s right to be free
from an unconstitutional invasion of his body is a liberty interest under the
Fourteenth Amendment. See Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251,
11 S. Ct. 1000, 1001 (1891) (“No right is held more sacred, or is more carefully
guarded . . . than the right of every individual to the possession and control of his
own person, free from all restraint or interference from others, unless by clear and
unquestionable authority of law.” (emphasis added)); Washington v. Harper, 494
U.S. 210, 229, 110 S. Ct. 1028, 1041 (1990) (holding that prisoners have a right to
bodily integrity, free from unconsented injections). As such, Georgia death row
prisoners raising Eighth Amendment method-of-execution claims are entitled to
procedural due process protection that ensures they receive a fair opportunity to
challenge their method of execution.
B
Turning to the second step of the Goldberg analysis, weighing the interests
at stake demonstrates that the Secrecy Act impermissibly infringes on the due
(concluding that, based on the information released by Georgia, it is impossible to determine
whether the problems with Georgia’s drug compound that arose in the context of Gissendaner II
have been resolved).
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process rights of Georgia death row prisoners raising method-of-execution claims.
Balancing the private and governmental interests implicated by a procedural due
process claim, like Jones’s, requires an assessment of “three distinct factors”: (1)
“the private interest that will be affected by the official action”; (2) “the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards”; and (3)
“the [State’s] interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.” See Mathews, 424 U.S. at 335, 96 S. Ct. at 903; Ake v. Oklahoma,
470 U.S. 68, 77, 105 S. Ct. 1087, 1093 (1985) (applying the “Mathews factors”
where the defendant alleged he was “denied the opportunity to participate
meaningfully in a judicial proceeding in which his liberty [was] at stake”). These
factors dictate a finding that Georgia death row prisoners must be afforded access
to the information currently shielded by the Secrecy Act.
First, in the present context, the “private interest” at stake is Georgia death
row prisoners’ interest in being put to death humanely. This interest is particularly
compelling, as it is an Eighth Amendment right that directly implicates individual
liberty. See Ake, 470 U.S. at 78, 105 S. Ct. at 1093 (“The private interest in the
accuracy of a . . . proceeding that places an individual’s life or liberty at risk is
almost uniquely compelling.”). Correlatively, any prisoner bringing a method-of-
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execution claim has a substantial interest in knowing the properties of drug
compounds the State intends to push into his bloodstream and in what manner this
will cause him to die. Indeed, the Supreme Court has emphasized that prisoners
raising Eighth Amendment claims in the death penalty context must be afforded
procedures necessary to provide them a “fair opportunity” to pursue their claims.
See Hall, 134 S. Ct. at 2001 (“Persons facing [the death penalty] must have a fair
opportunity to show that the Constitution prohibits their execution.” (emphasis
added)). Therefore, the private interest at stake here is a significant interest
weighing heavily in favor of procedural protections that ensure death row prisoners
have access to information about Georgia’s drug compound and lethal injection
process.
Second, combined with the circumstances surrounding Georgia’s lethal
injection process, the Secrecy Act poses a serious “risk of an erroneous
deprivation” of death row prisoners’ interest in a humane execution. See Mathews,
424 U.S. at 335, 96 S. Ct. at 903. Given the inconsistent viability of the drug
compound upon which Georgia relies for its executions, see Gissendaner II, 803
F.3d at 570, the State’s lethal injection process poses a risk of painful execution.
The Secrecy Act exacerbates this risk. The Secrecy Act denies Georgia prisoners
an opportunity to review “information necessary to state an Eighth Amendment
claim about lethal injection,” as it bars access to, inter alia, information about the
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manufacturing of the State’s drug compound, the qualifications of the persons
responsible for developing the compound, and the medical equipment used to carry
out the execution. See Terrell, 807 F.3d at 1281 (Martin, J., concurring); Ga. Code
§ 42-5-36(d)(2). This “lack of disclosure” greatly increases the risk of an
inhumane execution because it prevents any meaningful “debate between
adversaries” about Georgia’s lethal injection process, despite such debate being
“essential to the truth-seeking function of trials.” See Gardner v. Florida, 430 U.S.
349, 360, 97 S. Ct. 1197, 1206 (1977) (holding that a capital defendant’s due
process rights were violated because he was sentenced without being provided
access to information relevant to the trial court’s sentencing decision); Ford, 477
U.S. at 414, 106 S. Ct. at 2604 (When “the factfinder loses the substantial benefit
of potentially probative information[,] [t]he result is a much greater likelihood of
an erroneous decision.”). Meanwhile, the substitute procedural safeguard of
simply providing prisoners access to requested information about Georgia’s lethal
injection process would easily reduce this risk.
Finally, Georgia’s interest in the Secrecy Act does not outweigh the first two
Mathews factors. As noted above, this “State interest” factor requires
consideration of “the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.” See
Mathews, 424 U.S. at 335, 96 S. Ct. at 903. The function of the Secrecy Act is to
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protect Georgia’s drug compound suppliers and others involved in the State’s
lethal injection process from being scrutinized by opponents of capital punishment.
See Gissendaner II, 803 F.3d at 569; Cook & Rankin, supra note 2. Such scrutiny
could result in heavy fiscal and administrative burdens for Georgia, including a
dearth of access to lethal drug compounds or those willing to administer them.
Though Georgia’s interest in continuing to administer capital punishment in
a fiscally and administratively viable manner is legitimate under current Supreme
Court precedent, see Glossip, 135 S. Ct at 2732–33, 2737, this purpose cannot
justify the Secrecy Act’s far-reaching ban on the release of information about
Georgia’s lethal injection process. Georgia can efficiently achieve this purpose
through practices that respect death row prisoners’ right to procedural due process.
For example, Georgia could ban the public release of information pertaining to its
capital punishment methodology but still provide prisoners with access to this
information by allowing trial courts to issue protective orders prescribing
discovery methods that protect the State’s interest in secrecy. 6 See Fed. R. Civ. P.
26(c)(1); cf. Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S. Ct. 989, 1002–03
(1987) (recognizing that where a conflict exists between a State’s assertion of
confidentiality in a criminal trial and a defendant’s right to due process, records
6
At least one federal court has adopted this strategy in this exact context. See Moeller v.
Weber, No. 04-4200 at *4 (D.S.D. May 2, 2008) (“In consideration of the circumstances of this
case, the Court is allowing [the State] . . . to submit in camera the lethal injection protocols
sought in discovery and to designate any redactions the [State] believes are appropriate.”).
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may be submitted to the trial court for in camera review). It is simply not difficult
to conceive of a cost-effective procedure through which Georgia may account for
death row prisoners’ due process rights while protecting its stated interests. As
such, Georgia’s interest in the Secrecy Act does not outweigh the countervailing
due process issues resulting from the Secrecy Act’s significant imposition on the
right of death row prisoners to be free from cruel and unusual punishment.
* * *
In sum, under the Goldberg analysis, the Secrecy Act violates Georgia death
row prisoners’ right to procedural due process. These prisoners have an Eighth
Amendment right to be executed humanely, and this right triggers procedural due
process protections in the context of method-of-execution claims. Weighing the
Mathews factors, it is clear that these protections encompass the right to access
information protected by the Secrecy Act: (1) the prisoners’ private interest in a
humane execution is a significant liberty interest, (2) the Secrecy Act unacceptably
contributes to a risk of an erroneous deprivation of that interest by shielding critical
information about Georgia’s capital punishment methodology, and (3) Georgia’s
interest in the Secrecy Act can be easily achieved through alternative practices that
are less burdensome to prisoners.
III
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Denied a fair opportunity to challenge their methods of execution, Jones and
other Georgia death row prisoners will spend the final moments of their lives in
fear, not only of death, but also of being subjected to a painful execution in
violation of the Eighth Amendment. Supreme Court precedents and our Nation’s
commitment to the dignity of all persons should foreclose this result.
Nevertheless, it is the reality Georgia death row prisoners face due to this court’s
steadfast refusal to apply the proper procedural due process framework to claims
like the one Jones raises. Accordingly, I dissent.7
7
Judge Marcus’s opinion concurring in the denial of Jones’s request for an en banc
hearing argues that various factors counsel against our full court hearing Jones’s case at this
time. I do not find this argument persuasive. For example, the opinion asserts that Jones has not
properly pled an Eighth Amendment claim under Glossip because he did not allege a feasible
alternative to Georgia’s method of execution. However, Jones pled that a “feasible, readily
implemented alternative that would significantly reduce [the] substantial risk of severe pain
presented by Georgia’s continued use of their anonymous pharmacist would be for them to
obtain their drugs from a different source.” This is more than sufficient at the pleading stage,
especially considering Jones has been denied access to information by the Secrecy Act that
would allow him to supplement his pleading.
Indeed, Judge Marcus’s concurrence suggests precisely why this case should be heard en
banc—to allow thorough briefing and for this court to properly consider the exceptionally
important constitutional and related issues presented.
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JORDAN, Circuit Judge, dissenting from denial of rehearing en banc.
As I have indicated before, I believe that Georgia’s Secrecy Act – given the
problems that occurred when the state first sought to execute Kelly Gissendaner –
has constitutional problems. See Gissendaner v. Commissioner, 803 F.3d 565, 579
(11th Cir. 2015) (Jordan, J., dissenting).
A state violates the Eighth Amendment if it uses an execution method that is
sure or very likely to cause serious illness and needless suffering and there is a
feasible, viable, and readily implemented alternative that significantly reduces the
risk of such suffering. See Glossip v. Gross, 135 S.Ct. 2726, 2737 (2015). It
seems to me, therefore, that death row inmates have a protected liberty interest
under the Fourteenth Amendment in avoiding unnecessary pain. That is not a
constitutional stretch, for the Supreme Court has, in the clemency context, held that
a “prisoner under a death sentence remains a living person, and consequently has
an interest in his life” that is protected by the Due Process Clause and which
entitles him to “some minimal procedural safeguards.” See Ohio Adult Parole
Authority v. Woodward, 523 U.S. 272, 288-89 (1998) (O’Connor, J., concurring in
part and concurring in the judgment). See Gissendaner v. Commissioner, 794 F.3d
1327, 1331 (11th Cir. 2015) (explaining that Justice O’Connor’s concurring
opinion in Woodward provided the holding for that case).
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This interest requires us to decide what process is due to prisoners like Mr.
Jones who seek information about Georgia’s compounded pentobarbital. I think
we should have taken this case en banc to address the Fourteenth Amendment
challenge mounted by Mr. Jones because, as Judge Wilson explains, our opinion in
Wellons v. Commissioner, 754 F.3d 1260, 1266 (11th Cir. 2014), did not perform
the due process analysis required by Matthews v. Eldridge, 424 U.S. 319, 334-35
(1976), and its progeny. With respect, I dissent.
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ROSENBAUM, Circuit Judge, joined by WILSON, MARTIN, JILL PRYOR,
Circuit Judges, dissenting:
Today Brandon Jones will be executed, possibly in violation of the
Constitution. He may also be cruelly and unusually punished in the process.
But if he is, we will not know until it’s too late—if ever.
I agree with Judge Wilson that Georgia’s Lethal Injection Secrecy Act may
well deny Brandon Jones and other death-row prisoners their Fourteenth
Amendment procedural-due-process rights. I write separately because I also
believe that the Act may deprive Jones and others in his position of their
“fundamental constitutional right of access to the courts” under the Supreme
Court’s decision in Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498
(1977).1
1
Arguably, Jones’s Complaint could be read to raise this issue, as it refers generally to
the “depriv[ation] . . . of due process” and specifically asserts that, for rights that can be enforced
only prospectively, such as the Eighth Amendment right to be free of cruel and unusual
punishment, “the Supreme Court has not hesitated to recognize a due process right to the
information necessary to determine whether a violation is risked.” See Complaint at 3, 14-15.
While the Complaint cites a procedural-due-process case in support of the later proposition, the
proposition is also supported on what appear to be substantive-due-process grounds by Bounds
and its progeny. In particular, the quoted sentence from Jones’s Complaint may be read to
encompass the argument that where information in the state’s control is necessary to demonstrate
a prospective Eighth Amendment violation, the Supreme Court has recognized a right to that
information so that prisoners may access the courts to make their Eighth Amendment claims.
Regardless of whether Jones’s Complaint may be viewed as having sufficiently raised a
substantive-due-process argument, though, other death-row prisoners face the same obstacles to
presenting their Eighth Amendment claims as Jones. And Georgia’s Lethal Injection Secrecy
Act may well violate prisoners’ substantive-due-process rights, as well as their procedural-due-
process rights.
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While the Court in Bounds did not explicitly ground the right in the Due
Process Clause of the Fourteenth Amendment, the prisoners in Bounds challenged
North Carolina’s failure to provide them with law libraries under the Fourteenth
Amendment, and the Supreme Court ultimately held that the prisoners’
“fundamental constitutional right of access to the courts require[d] prison
authorities to assist inmates in the preparation and filing of meaningful legal papers
by providing prisoners with adequate law libraries or adequate assistance from
persons trained in the law.” Id.
In Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 2187-88 (1996), Justice
Scalia considered the source of the “fundamental constitutional right” Bounds had
identified:
The weakness in the Court’s constitutional analysis in
Bounds is punctuated by our inability, in the 20 years
since, to agree upon the constitutional source of the
supposed right. We have described the right articulated
in Bounds as a “consequence” of due process, Murray v.
Giarratano, 492 U.S. 1, 11, n. 6, 109 S. Ct. 2765, 2771,
n. 6, 106 L. Ed.2d 1 (1989) (plurality opinion) (citing
Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800,
1814, 40 L. Ed. 2d 224 (1974)), as an “aspect” of equal
protection, 492 U.S., at 11, n. 6, 109 S. Ct., at 2771, n. 6
(citation omitted), or as an “equal protection guarantee,”
Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S. Ct.
1990, 1994, 95 L. Ed. 2d 539 (1987). In no instance,
however, have we engaged in rigorous constitutional
analysis of the basis for the asserted right. Thus, even as
we endeavor to address the question presented in this
case—whether the District Court’s order “exceeds the
constitutional requirements set forth in Bounds,” Pet. for
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Cert. i—we do so without knowing which Amendment to
the Constitution governs our inquiry.
Id. at 367, 116 S. Ct. at 2187-88. Nevertheless, it seems to me that the Bounds
fundamental right of access to the courts is most readily grounded in substantive
due process.
On the merits, Georgia’s Lethal Injection Secrecy Act may well violate
Jones’s Bounds fundamental constitutional right of access to the courts by
foreclosing his ability to effectively pursue an Eighth Amendment challenge to
Georgia’s administration of lethal injections. 2 As cabined by Justice Scalia in
Lewis, the Bounds right is the right to “a reasonably adequate opportunity to
present claimed violations of fundamental constitutional rights to the courts.”
Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180 (1996) (quoting Bounds,
430 U.S. at 825, 97 S. Ct. at 1496). Essentially, the Bounds right ensures that
states may not “effectively foreclose access” to the courts. Bounds, 430 U.S. at
2
It bears noting that Jones does not seek to challenge lethal injections in general as an
unconstitutional method of execution; rather, he seeks to challenge Georgia’s administration of
the lethal-injection method and, in particular, Georgia’s procurement of drugs from an unreliable
source, to the extent the facts bear out the premise. It is currently impossible to bring such a
claim because Georgia’s shield law precludes Jones from learning the facts regarding the
procurement of the drugs and, specifically, whether they are obtained from a competent
compounder. In other words, any Eighth Amendment challenge Jones might be able to bring to
the manner in which Georgia administers its lethal-injection method is arguably not yet even
ripe. And under the law in this Circuit, it arguably can never become ripe while Georgia’s
secrecy law persists. Even if the State informs a prisoner that a problem with the drugs existed
but has been corrected, the prisoner will have no claim ripe for review. See Gissendaner v.
Comm’r, Ga. Dep’t of Corr., 803 F.3d 565, 568 (11th Cir. 2015). Otherwise, any claim will not
become ripe until it is too late for the prisoner. The prisoner can know whether the drugs are
improperly compounded or stored only by actually being executed with them, and that is
knowledge that he will take to his grave.
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822, 97 S. Ct. at 1495. “‘[M]eaningful access to the courts is the touchstone’” of
“the right vindicated by Bounds.” Lewis, 518 U.S. at 351, 116 S. Ct. at 2180
(quoting Bounds, 430 U.S. at 823, 97 S. Ct. at 1495). Here, Georgia’s shield law
prevents prisoners from obtaining meaningful access to the courts by effectively
foreclosing their ability to bring an Eighth Amendment challenge to the
administration of the lethal-injection method in Georgia.
Moreover, recognizing a prisoner’s Bounds substantive-due-process right of
access to the courts as an independent right separately establishes standing. To
establish actual injury in a Bounds claim, a party need only show that the “actions
that allegedly violate[d] [his] right of access to the courts . . . impeded [his] pursuit
of a nonfrivolous, post-conviction claim or civil rights action.” Wilson v.
Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998). In other words, a prisoner
must demonstrate only that Georgia’s shield law “hindered his efforts to proceed
with a legal claim in a criminal appeal, postconviction matter, or civil rights action
seeking to vindicate his basic constitutional rights.” Id. at 1291 (quotation marks
omitted). We’ve clarified that “[t]he injury requirement [in a Bounds claims]
means that the plaintiff must have an underlying cause of action the vindication of
which is prevented by the denial of access to the courts.” Cunningham v. Dist.
Attorney’s Office for Escambia Cty., 592 F.3d 1237, 1271 (11th Cir. 2010). In
practice that means that “[t]he allegations about the underlying cause of action
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must be specific enough to give fair notice to the defendants and must ‘be
described well enough to apply the ‘nonfrivolous’ test and to show that the
‘arguable’ nature of the underlying claim is more than hope.’” Id. (quoting
Christopher v. Harbury, 536 U.S. 403, 416, 122 S. Ct. 2179, 2187 (2002)).
Jones easily meets the injury requirement for a Bounds claim. Jones not
only noted an underlying cause of action the vindication of which is prevented by
denial of access to the courts—his Eighth Amendment claim, he unsuccessfully
pursued that claim as a separate cause of action. As described by Judge Wilson,
Georgia’s shield law precluded Jones from vindicating his Eighth Amendment
claim by effectively preventing him from making the two-pronged showing
required by the Supreme Court’s decision in Glossip v. Gross, 576 U.S. ___, ___,
135 S. Ct. 2726, 2737 (2015).
Nor was Jones’s underlying Eighth Amendment claim frivolous. In his
Complaint, Jones included specific allegations that Georgia’s current source for its
lethal-injection drugs has provided two separate batches of drugs that became
cloudy and congealed; that Georgia was forced to delay two executions out of
concerns over the efficacy of those batches of drugs; that the cloudy and congealed
appearance of those batches may have been caused by underlying defects in the
drugs that would induce excruciating pain if administered; and that those
underlying defects may not always cause the drugs to turn cloudy or congeal. See
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also Declaration of Michael Jay, Ph.D., chairman of the Division of Molecular
Pharmaceutics at the Eshelman School of Pharmacy at the University of North
Carolina at Chapel Hill, filed in support of Jones’s Complaint (opining that the
cloudy batches of drugs had been “compounded improperly”; that “[n]ot all
irregularities are detectable to the naked eye”; that “[t]here is a real possibility that
a compounded formulation could have a dangerous pH level or be polluted with
contaminants, but would not display any outward manifestations of its internal
flaws”; and that, as a result, the drug “could result in excruciating pain and
suffering upon injection”). In sum, Jones has already suffered actual injury
sufficient to confer standing to pursue his Bounds claim: he has been denied his
fundamental constitutional right of access to the courts to pursue his nonfrivolous
Eighth Amendment challenge.
Lewis’s limitation of Bounds is also inapplicable here. Jones does not seek
from Georgia the provision of a service that may fairly be described as akin to a
“demand [for] permanent provision of counsel,” Lewis, 518 U.S. at 354, 116 S. Ct.
at 2181, unlike the prisoners in Lewis. Rather, he challenges Georgia’s affirmative
shielding of information—a practice that precludes Jones from being able to reach
the courts in the first place. In short, Lewis is distinguishable from Jones’s case
and does not bar his Bounds claim.
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For these reasons, I believe that Georgia’s secrecy law raises serious
substantive-due-process concerns, in addition to the procedural-due-process claim
identified by Judge Wilson. I dissent from the denial of en banc hearing in Jones’s
case.
50