Valle v. Singer

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 7, 2011
No. 11-13891
JOHN LEY
________________________
CLERK

D.C. Docket No. 3:11-cv-00700-MMH-TEM

MANUEL VALLE,

Plaintiff-Appellant,

versus

STEVEN SINGER,
in his official capacity as the Warden of Florida State Prison,

TIMOTHY CANNON,
in his official capacity as the Execution Team Leader,

lEDWIN BUSS,
in his official capacity as the Secretary,
Florida Department of Corrections,

UNKNOWN EXECUTIONERS,

Defendants-Appellees.
 ________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(September 7, 2011)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

Manuel Valle is a death row prisoner who is scheduled to be executed by the

State of Florida. The State originally scheduled his execution by lethal injection

for August 2, 2011. The Florida Supreme Court granted a stay to allow a Florida

circuit court to determine whether the State’s use of an altered lethal injection

protocol—one that substituted pentobarbital for sodium thiopental in its three-drug

execution cocktail—violates the Eighth Amendment. Following an evidentiary

hearing, the circuit court denied relief. The Florida Supreme Court affirmed,

lifting its previously issued stay. Valle’s execution was rescheduled for September

6, 2011; this Court’s temporary stay expires September 8, 2011 at 7:00 pm.

Valle also brought suit in federal district court. He filed a complaint under

42 U.S.C. § 1983 and a motion for a temporary restraining order (“TRO”) and

preliminary injunction and to stay his execution. On August 9, the district court

denied his motion, concluding, inter alia, that Valle failed to demonstrate a

2
substantial likelihood of success on the merits of his Eighth Amendment claim—a

prerequisite for injunctive relief.1 Valle appeals that decision and also asks this

Court to enter a stay of execution so that he can obtain a merits ruling on his

complaint. He concedes that this Court’s recent decisions rejected similar

challenges. Valle seeks to distinguish those cases—allowing Georgia and

Alabama to proceed with executions using pentobarbital instead of sodium

thiopental—because he alleges that Florida, unlike Georgia and Alabama, has a

history of problems with properly effecting executions.2

“A stay of execution is equitable relief which this Court may grant only if

the moving party shows that: (1) he has a substantial likelihood of success on the

merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay

would not substantially harm the other litigant; and (4) if issued, the injunction

would not be adverse to the public interest.” DeYoung v. Owens, 646 F.3d 1319,

1324 (11th Cir. 2011) (internal quotation marks omitted). “We review the district

court’s denial of [defendant’s] motions for a TRO and stay of execution for abuse

1
Valle also filed a second motion for a temporary restraining order seeking to delay his
execution. The district court noted that, except for the procedural history, the motion was
virtually identical to the first motion. Therefore, it denied the second motion for the same
reasons stated in the previous order.
2
Valle notes in his brief that his complaint before the district court raised four separate
claims. His filing in this court, however, focuses exclusively on the Eighth Amendment claim.
Accordingly, we do the same.

3
of discretion.” Id. at 1324 n.2.

“To state an Eighth Amendment claim, [the defendant] must demonstrate

that (1) the State is being deliberately indifferent (2) to a condition that poses a

substantial risk of serious harm to him. In the lethal injection context, this standard

requires an inmate to show an objectively intolerable risk of harm that prevents

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

the Eighth Amendment.” Id. at 1325 (internal quotations marks and citations

omitted).

We conclude that Valle has not demonstrated that he has a substantial

likelihood of success on the merits of his Eighth Amendment claim for the reasons

set out in Part C.1 of the district court’s thorough and well-reasoned discussion of

the lethal injection issue. We adopt that part of the district court’s opinion as our

own. For the convenience of the reader, we reproduce that part of the opinion, as

well as some introductory parts of it, as an appendix to this one.3

Because Valle has failed to show a substantial likelihood of success on the

merits, we need not address the other three requirements for issuance of a stay of

execution. See DeYoung, 646 F.3d at 1328 (“DeYoung has not demonstrated a

3
The appendix is part of the district court’s order but with the district court’s Westlaw
citations updated to the Federal Reporter and all quotations checked for accuracy.

4
substantial likelihood of success on the merits of his claims. Therefore, the Court

denies DeYoung’s motion for a stay of execution in this Court.”); Parker v. State

Bd. of Pardons and Paroles, 275 F.3d 1032, 1035 (11th Cir. 2001) (holding that

death row inmate who failed to establish substantial likelihood of success on merits

of his clemency claims was not entitled to temporary restraining order, preliminary

injunction, or stay of execution).

For the foregoing reasons, we conclude that Valle does not satisfy the first

requirement for the issuance of a stay of execution, and thus we deny Valle’s

motion.4

MOTION FOR STAY OF EXECUTION IS DENIED; DISTRICT
COURT’S ORDER IS AFFIRMED.

4
Based on the same rationale, we conclude that the district court did not abuse its
discretion in denying Valle’s motion for a stay of execution.

5
 APPENDIX

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MANUEL VALLE,
Plaintiff,

v. Case No. 3:11-cv-700-J-34TEM

STEVEN SINGER,
etc.; et al.,

Defendants.

ORDER
A. Introduction

Plaintiff Manuel Valle, a prisoner sentenced to death by the
State of Florida, was scheduled to be executed by lethal injection

on Tuesday, August 2, 2011, at 6:00 p.m. On July 18, 2011, Valle,

represented by counsel, filed a Complaint (Doc. #1) and Memorandum
of Law and Argument in Support of the Complaint (Memorandum) (Doc.

#2) pursuant to 42 U.S.C. § 1983. In the Complaint and Memorandum,

Valle challenges the State of Florida's lethal injection procedures
and asserts that the Florida Department of Corrections' recent

change from sodium thiopental to pentobarbital, as the first of

three drugs used in the lethal injection protocol, constitutes
cruel and unusual punishment in violation of the Eighth Amendment

and also violates his rights protected by the Due Process and Equal

Protection Clauses of the Fourteenth Amendment of the United States
Constitution. Additionally, he alleges that the Florida Department

of Corrections' current policies and procedures and its history of

failing to follow its own written execution procedures, combined
with the recent substitution of pentobarbital, will unnecessarily
cause a risk of the infliction of pain and suffering and will

create a substantial risk of serious harm to Valle at his upcoming

execution. As relief, Valle seeks declaratory and injunctive
relief aimed at stopping the State of Florida from executing him

using its lethal injection protocol, as well as a stay of execution

to allow his § 1983 action to be fully and fairly litigated without
an imminent execution date looming.

* * *

B. Background

Following lengthy state trial court proceedings which included
two separate trials and three sentencing proceedings, Valle was
sentenced to death for the 1978 murder of Officer Louis Pena of the

Coral Gables Police Department.3 Valle appealed his sentence to
the state supreme court, which denied his direct appeal on May 2,

1991. Valle v. State, 581 So.2d 40 (Fla. 1991). Valle then

petitioned the United States Supreme Court for a writ of

3
In the trials, Valle was also convicted of other non-capital
crimes, including the attempted murder of another Coral Gables
Police Officer, Gary Spell, and possession of a firearm by a
convicted felon. See Valle v. State, 474 So.2d 796, 798 (Fla.
1985), cert. granted, judgment vacated by Valle v. Florida, 476
U.S. 1102 (1986).

2
certiorari, which was denied on December 2, 1991. Valle v.
Florida, 502 U.S. 986 (1991). Thus, Valle's conviction and

sentence became final on December 2, 1991.

In 2000, the Florida Legislature established lethal injection
as the method of execution in the State of Florida. Lightbourne v.

McCollum, 969 So.2d 326, 341-42 (Fla. 2007), cert. denied, 553 U.S.

1059 (2008). Although the applicable state statute provides for
the method of execution, it does not set forth the specific

procedures or drugs to be used. Id. at 342. Instead, the

legislature delegated the responsibility for establishing
appropriate procedures to the Florida Department of Corrections

(FDOC). Id. Until recently, lethal injection in the State of
Florida was accomplished by a three-drug protocol utilizing sodium

thiopental to render the condemned person unconscious, followed by

the administration of pancuronium bromide, a neuromuscular blocking
agent, and finally a dose of potassium chloride. Id. at 345.

According to the Complaint, the FDOC, on June 9, 2011, released a

new lethal injection procedure in which it publically advised, for
the first time, that the State intended to replace sodium

thiopental with pentobarbital. See Complaint at 22-23, paragraphs
65-67. Additionally, on June 30, 2011, the State announced that
Valle's execution was scheduled for August 2, 2011. See Motion to

Dismiss at 2.

In this action, pursuant to 42 U.S.C. § 1983, Valle asserts
that Florida's intention to execute him using pentobarbital in the

three-drug lethal injection sequence, instead of sodium thiopental,

3
violates his Eighth Amendment right to be free from cruel and

unusual punishment. He asserts that, as a result of this

substitution, he may be conscious after being injected with
pentobarbital, and thus subjected to significant pain during the

administration of the final two drugs. In support of his claims,

Valle points to a report and an affidavit provided by Dr. David B.
Waisel, M.D. See P. Ex. B, Waisel's Expert Report and Affidavit.

In his report, Dr. Waisel expresses concern regarding the lack of

clinical history related to the use of pentobarbital for
anesthesia. See generally Id. Additionally, in his affidavit, Dr.

Waisel opines that, based on his reviews of descriptions of the
June 23, 2011 execution of Roy Willard Blankenship, pentobarbital

may inadequately anesthetize the inmate and subject him to a

substantial risk of serious harm and extreme, torturous and
needless pain and suffering. Valle also relies on a position paper

released by Lundbeck, Inc., the manufacturer of pentobarbital,

which he contends reflects the manufacturer's judgment that the
drug is "untested and unsafe for use in judicial lethal

injections," has not been approved by the Food and Drug

Administration (FDA) to induce anesthesia, has no relevant clinical
history, and "no relevant clinical reference doses on which to

determine what dose would cause a clinically adequate depth of

anesthesia, much less an adequate lethal injection dose."
Complaint at 6, paragraph 24.

Valle asserts that "[t]he combination of significant unknowns

from a lack of clinical history related to using pentobarbital to

4
induce anesthesia, inadequate implementation of procedural
safeguards and a cavalier attitude toward lethal injection puts

[him] at risk for serious undue pain and suffering." Id. Thus,

Valle relies not only on the recent substitution of pentobarbital,
but also upon his concerns regarding the inadequate training and

experience of execution team members, inadequate monitoring of the

IV lines, inadequate monitoring of consciousness by unqualified
individuals, FDOC's failure to conduct meaningful review of its

processes, as well as its failure to respond to public information

requests. Id. at 15-22.
Defendants have filed a Motion to Dismiss, in which they

assert that Valle's claims are barred by the applicable statute of
limitations, and further that he has failed to state any claim upon

which relief can be granted. Motion to Dismiss at 3-4, 12-17. In

Plaintiff's Response, recognizing that many of his arguments have
been addressed by the decisions of the United States Supreme Court

in Baze v. Rees, 553 U.S. 35, 50 (2008), and the Florida Supreme

Court in Lightbourne, Valle contends that his challenges are new
and different because:
It is only within the past year that Mr. Valle
learned that U.S. prisons across the country
have been obtaining the drugs used in
executions illegally. It is only recently
that Mr. Valle learned that the Defendants
have failed to comply with even the
administrative requirements that were written
into their own procedures. It is only since
June 9, 2011[,] that Mr. Valle learned that
the Defendants have substituted an untested
and non-FDA approved drug for sodium
thiopental. It has only been since the
warrant for his execution was signed that he

5
 learned that the sole manufacturer of
pentobarbital, Lundbeck, Inc., has issued a
warning that it cannot guarantee the safety
and efficacy of the drug in the execution of
human beings. And it is only in the past week
that Mr. Valle learned that there have been
more botched executions around the country
where pentobarbital was used.

Plaintiff's Response at 7. In sum, Valle asserts that the

replacement of sodium thiopental with pentobarbital when combined

with Florida's history and the deficiencies in its procedures

subjects him to a substantial risk of serious harm. As such, he

seeks a temporary restraining order and an immediate stay of his

impending execution.
C. Motion to Stay
Very recently, the Eleventh Circuit Court of Appeals

reiterated the requirements for a stay of execution:
A stay of execution is equitable relief which
this Court may grant "only if the moving party
shows that: (1) he has a substantial
likelihood of success on the merits; (2) he
will suffer irreparable injury unless the
injunction issues; (3) the stay would not
substantially harm the other litigant; and (4)
if issued, the injunction would not be adverse
to the public interest."

DeYoung v. Owens, (DeYoung II4), 646 F.3d 1319,1324 (11th Cir.
2011) (quoting Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir.
2011) (per curiam), cert. denied, 131 S.Ct. 2487 (2011))

4
In DeYoung II, the Eleventh Circuit affirmed the decision in
DeYoung v. Owens, Case No. 1:11-cv-2324-SCJ (N.D. Ga. 2011), Order
(Doc. #27), filed July 20, 2011 (DeYoung I). A copy of DeYoung I
is appended to Defendants' Notice of Supplemental Authority (Doc.
#12).

6
cert. denied, No. 11-5361, 2011 WL 2870756 (U.S. July 20,

2011).

1. Substantial Likelihood of Success on the Merits

As the moving party, Valle bears the burden of establishing

that he has a substantial likelihood of succeeding on the merits of

his § 1983 claims raised in this action. Henyard v. Sec'y, Dep't
of Corr., 543 F.3d 644, 647 (11th Cir. 2008) (per curiam). Upon

review of the record and each of the claims raised in this action,

the Court determines that Valle's Motion to Stay is due to be
denied because Valle has failed to meet his burden of establishing

that he has a substantial likelihood of success on his claims.

Florida's recent replacement of sodium thiopental with
pentobarbital in the three-drug lethal injection sequence underlies

the bulk of Valle's claims in this action.5 Specifically, Valle
asserts that, under Florida's present protocol, at his upcoming
execution, he may be conscious after being injected with
pentobarbital, and thus, able to feel pain during the
administration of the final two chemicals. Valle's claims brought
under 42 U.S.C. § 1983 are subject to Florida's four-year personal
injury statute of limitations.6 See Van Poyck v. McCollum, 646 F.3d

Florida's June 8, 2011 substitution of pentobarbital for
5

sodium thiopental coincides with the substitution made by other
states within the Eleventh Circuit, both Georgia and Alabama. See
DeYoung I at 4-5 n.2. Indeed, as noted in DeYoung I: "A number of
states have recently adopted the use of pentobarbital as U.S.
manufactured sodium thiopental is no longer available following the
decision of Hospira, Inc., the sole U.S. manufacturer of the drug,
to discontinue its production." Id.
6
Section 1983 creates a cause of action against any person who
acts in violation of the constitutional rights of another while

7
865, 866 (11th Cir. 2011) (per curiam) (citing Henyard, 543 F.3d

at 647). Florida adopted lethal injection as a method of

execution on January 14, 2000. Thereafter, condemned persons, such
as Valle, had thirty days under the statute to select a preferred

method of execution, or until February 13, 2000. See Henyard, 543

F.3d at 647. Consequently, to the extent Valle wished to challenge
Florida's intention to execute him by lethal injection, he was

required to bring his § 1983 action within four years of February

13, 2000, i.e., by February 13, 2004, absent a later "significant
change" in Florida's execution protocol. As previously noted,

Valle did not file this Complaint until July 18, 2011. Thus, it
appears that Valle's claims in this action would be barred as the

suit was filed well beyond the four- year limitations period.

Despite the significant passage of time since February 2004,
Valle contends that his claims are not barred by the statute of

limitations, because Florida's substitution of pentobarbital for

sodium thiopental in the three-drug lethal injection protocol
constitutes a substantial change in the method of execution. In

McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008), cert.

denied, 553 U.S. 1098 (2008), the Eleventh Circuit Court of Appeals

acting under color of state law. Here, Valle challenges the
constitutionality of the execution procedure he is scheduled to
undergo. Such challenges are appropriately brought under § 1983.
Hill v. McDonough, 547 U.S. 573, 576 (2006); McNair v. Allen, 515
F.3d 1168, 1176 (11th Cir. 2008) ("[T]he Supreme Court has
sanctioned the filing of § 1983 claims challenging the
constitutionality of execution methods."), cert. denied, 553 U.S.
1098 (2008).

8
concluded 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." Thus, the Court must consider
whether Valle has alleged facts supporting a conclusion that

Florida has changed or substantially altered its execution

protocol.
Not surprisingly, the recent substitution of pentobarbital as
the first of the three-drug lethal injection protocol used by
various states has resulted in a flurry of activity in courts

across the country and within the Eleventh Circuit.7 Of particular
import to Valle's claims before this Court are a series of recent
decisions from within the Eleventh Circuit. On May 16, 2011, a
district court in Alabama denied an inmate's motion to stay his
execution, which relied on the substitution of pentobarbital for
sodium thiopental, based on the court's conclusion that the inmate
failed to meet his burden of demonstrating a substantial likelihood

7
DeYoung I; DeYoung II; Powell (Williams) v. Thomas (Powell
(Williams) I), Case No. 2:11-CV-376-WKW, 2011 WL 1843616 (M.D. Ala.
May 16, 2011), aff'd, Powell (Williams) v. Thomas (Powell
(Williams) II), 641 F.3d 1255 (11th Cir. 2011) (per curiam), cert.
denied, Williams v. Thomas, 131 S.Ct. 2487 (2011); Powell v. Thomas
(Powell I), No. 2:11-CV-376-WKW [WO], 2011 WL 2292108 (M.D. Ala.
June 9, 2011), aff'd, Powell v. Thomas (Powell II), 643 F.3d 1300
(11th Cir. 2011) (per curiam), petition for cert. filed, No. 10-
11055, 10A1235, (U.S. June 15, 2011), and other courts across the
country. See Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010),
cert. denied, 131 S.Ct. 974 (2011); West v. Brewer, No. CV-11-1409-
PHX-NVW, 2011 WL 2836754 (D. Ariz. July 18, 2011); Jackson v.
Danberg, Case No. 06-300-SLR (D. Del. July 12, 2011), (Doc. #148)
(granting a stay of execution), vacated, Jackson v. Danberg, Case
No. 11-9000 (3d Cir. July 21, 2011); Cooey v. Kasich, Nos. 2:04-cv-
1156, 2:09-cv-242, 2:09-cv-823, 2:10-cv-27, 2011 WL 2681193 (S.D.
Ohio July 8, 2011).
9
of success given his "heavy burden" to prove an Eighth Amendment
claim. Powell (Williams) I. The Eleventh Circuit Court of Appeals

upheld the denial concluding "[t]he replacement of sodium

thiopental with pentobarbital does not constitute a significant
alteration in the [Alabama Department of Corrections’] lethal

injection protocol, and . . . such an amendment does not violate

the Eighth Amendment under the cases cited by [plaintiff]." Powell
(Williams) II, 641 F.3d at 1258.

Thereafter, in reliance on Powell (Williams) II, the district

court dismissed inmate Powell's § 1983 action challenging Alabama's
lethal injection protocol based upon a finding that it was barred

by the statute of limitations. See Powell I. Specifically, the
district court concluded that the alteration of Alabama's three-

drug lethal injection protocol (by the substitution of

pentobarbital for sodium thiopental) was not a significant or
substantial change in the execution protocol so as to reset the

applicable statute of limitations. Id. at *4. Additionally, the

court rejected Powell's Fourteenth Amendment due process challenge
based upon the state's secrecy of its processes noting that Powell

could have challenged the secrecy surrounding the method of

execution beginning in 2002. Id. As a result, the state's change
to pentobarbital did not "awaken this long stale claim." Id. On

review, the Eleventh Circuit Court of Appeals agreed. Powell II.

On June 15, 2011, in Powell II, the Eleventh Circuit rejected
Powell's attempt to relitigate the issue of whether Alabama's

change in the first drug of the lethal injection protocol was a

10
significant change for purposes of restarting the statute of

limitations. 643 F.3d at 1304-05.8 As such, the court found that
the Eighth Amendment challenge was barred by the statute of
limitations, and further that the Eighth and Fourteenth Amendment
challenges to the change in execution protocol based upon the
secrecy in which it was accomplished were similarly barred by the
statute of limitations. Id. at 1305.

In an effort to distinguish the instant case from the recent

Powell decisions, Plaintiff asserts that his "case presents claims
and a factual basis unlike any presented before to seek a stay."

Motion to Stay at 6. He not only complains about Florida's

replacement, on June 8, 2011, of sodium thiopental with
pentobarbital, as the first drug in the three-drug lethal injection

sequence, but also that Florida has a "broken lethal injection

process." Id. In support of his assertions, Valle points to the
following: (1) the June 23, 2011 execution by lethal injection,

using pentobarbital, of inmate Roy Willard Blankenship in Georgia,

as detailed in the Affidavit and Expert Report of Dr. David B.
Waisel, M.D. (P. Ex. B, Waisel's Expert Report and Affidavit); (2)

the July 1, 2011 pentobarbital manufacturer's position paper

condemning the use of pentobarbital for executions by lethal
injection and noting that the drug is not approved for such use;

and (3) "Florida's unique history of botched executions,"

(exemplified by the 2006 execution of Angel Diaz), the Defendants'

8
[Footnote regarding Westlaw citations omitted.]

11
unchecked discretion in deviating from and not following the

written execution procedures, and "Florida's already broken lethal

injection process," including the inadequate training, experience,
and qualifications of the execution team members. Valle's

protestations notwithstanding, the purported distinctions upon

which he relies are neither new nor, based on Eleventh Circuit
precedent, are they sufficient alone or in combination with one

another to carry his burden.

Following the filing of the Complaint and the Motion to Stay,
the Eleventh Circuit Court of Appeals had another opportunity to

consider the substitution of pentobarbital for sodium thiopental,
this time in an action by a Georgia inmate who raised claims

strikingly similar to those of Valle. See generally DeYoung II.

Inmate DeYoung sought a stay of his execution scheduled for July
20, 2011, arguing that Georgia's lethal injection protocol violated

his Eighth Amendment right to be free from cruel and unusual

punishment. DeYoung II, 646 F.3d at 1323. He contended that
the use of pentobarbital subjected him to a substantial risk of

serious harm because pentobarbital was insufficiently tested for

use as an anesthetic and that in prior executions using
pentobarbital, specifically the execution of Roy Blankenship, the

drug failed to "painlessly anesthesize the prisoners." Id.
The Eleventh Circuit, in rejecting DeYoung's claims,
unequivocally reiterated its finding that the substitution of

pentobarbital for sodium thiopental does not result in a

substantially changed execution protocol. Id. at 1325. Moreover,

12
addressing DeYoung's attempt to revisit the statute of limitations
issue in reliance on evidence regarding the Blankenship execution,

the court noted, "the mere act of proffering additional reasons not

expressly considered previously will not open the door to
reconsideration of the question by a second panel." Id.

(quoting Smith v. GTE Corp., 236 F.3d 1292, 1302 (11th Cir. 2001)

(quotation marks and ellipsis omitted)). Nevertheless, the
Eleventh Circuit considered and rejected DeYoung's Eighth Amendment

claim on the merits, finding the additional proffered evidence did

not undermine Powell's conclusion. Specifically referencing the
events surrounding the Blankenship execution, the court determined

that DeYoung failed to "establish a substantial risk of serious
harm from the pentobarbital, or even that Blankenship necessarily

suffered any harm, much less serious harm." DeYoung II, at 1326.

The Eleventh Circuit explained:
First, as the district court pointed out, "Dr.
Waisel entirely failed to provide a medical
explanation for why pentobarbital might have
caused Blankenship pain. To the contrary, Dr.
Waisel testified that a patient will not feel
pain at the moment when a drug is introduced
intravenously unless it is a drug, such as
potassium chloride, which causes a burning
sensation."

Second, the district court noted that Dr.
Waisel admitted that "any 'suffering' was
short lived as it clearly ended within a few
minutes-three minutes at the most-after the
pentobarbital was injected." The Eighth
Amendment does not protect against all harm,
only serious harm; and it does not prohibit
all risks, only substantial risks. "Simply
because an execution method may result in
pain, either by accident or an inescapable
consequence of death, does not establish the
sort of 'objectively intolerable risk of harm'

13
that qualifies as cruel and unusual." Baze,
553 U.S. at 50, 128 S.Ct. at 1531 (plurality
opinion). In any event, Dr. Waisel was not
present at the Blankenship execution; rather,
he opines from the witnesses' varied
descriptions of Blankenship's movements that
those movements were a sign of "discomfort,"
which Dr. Waisel termed "suffering." Dr.
Waisel acknowledged that no one reported any
movement by Blankenship after the nurse's
consciousness check. Further, Blankenship's
autopsy revealed no evidence of trauma. The
catheters were inside Blankenship's veins and
the veins were not burst or broken. There was
no infiltration of fluid in the soft tissue of
the right arm near the catheter site.
Notably too, DeYoung presented no
evidence to show that unconsciousness is not
achieved after the complete administration of
a 5000-mg dose of pentobarbital.

All parties agree that the purpose of the
anesthetic in Georgia's three-drug lethal
injection protocol is to render the inmate
unconscious before administration of the
second and third drugs. As the record
demonstrates, and the district court found, a
consciousness check was performed on
Blankenship after he was administered the
pentobarbital and prior to injection of the
second drug pancuronium bromide, as Georgia's
lethal injection protocol requires. It is
clear that Blankenship's execution did not
proceed to the second drug until after he was
fully unconscious. And as the district court
found, DeYoung's execution, or any other under
the Georgia protocol, cannot proceed until he
is unconscious. To the contrary, Georgia's
protocol specifically provides that GDOC
officials will not administer the pancuronium
bromide but will instead administer more
anesthetic-and conduct more consciousness
checks-until the inmate has been shown to be
unconscious.

DeYoung has wholly failed to show that
pentobarbital, once fully administered and
allowed to act, is ineffective as an
anesthetic. As the district court succinctly
found, Georgia's "use of pentobarbital does

14
 not create a substantial risk of serious harm
to inmates."

DeYoung II, 646 F.3d at 1326-27 (footnote omitted).

Plaintiff's attempt to distinguish his claim from the binding
Powell precedent, based upon the Blankenship execution and the
affidavit of Dr. Waisel, is significantly undermined if not
entirely foreclosed by DeYoung II. Indeed, the affidavit of Dr.
Waisel relied upon by Valle, see P. Ex. B at 14-18, is identical,
in substance, to that considered and found to be insufficient by
the district court and the Eleventh Circuit Court of Appeals in

DeYoung I and DeYoung II.9 See DeYoung v. Owens, Case No. 1:11-cv-

2324-SCJ (N.D. Ga. 2011), Affidavit of Dr. David B. Waisel, M.D.

(Doc. #3-15), filed July 15, 2011, at 1-5.10 Moreover, Florida's

protocol, like that of Georgia in DeYoung II,11 calls for 5 grams

9
In Plaintiff's Response to the Motion to Dismiss, Valle also
argues for the first time, without reference to any affidavit or
other evidence, that "Powell himself had the unfortunate
distinction of becoming Alabama's first botched execution by lethal
injection." Plaintiff's Response at 5. Valle described the start
of the execution: "[w]itnesses reported that after the start of the
execution, Mr. Powell violently jerked his head up off the gurney,
turned his head from side to side, clenched his jaw, . . . appeared
to be in pain[,] and [h]is eyes remained open for quite a while."
Id. at 5 n.1. However, when recently faced with such evidence in
the DeYoung II case, the Eleventh Circuit stated: "DeYoung's
evidence about the Powell execution does not change our conclusion.
. . . Powell's counsel [(who had witnessed the execution)] did not
know at what time the various chemical[s] were administered."
DeYoung II, 646 F.3d at 1327 n.5.
10
This exhibit is not available on Westlaw; therefore the Court
cites to the document that appears on the Pacer Case Locator. See
https://pcl.uscourts.gov/search.

See DeYoung II, 6 4 6 F . 3 d a t 1 3 2 3 (noting that
11

5000 milligrams of pentobarbital is used, as the first drug, in
the three-drug protocol and stating that the "[l]ack of
sodium thiopental availability led Georgia on May 13, 2011[,]
15
of pentobarbital to be administered as the first drug of the three-

drug protocol. P. Ex. A, Execution by Lethal Injection Procedures.

Florida's protocol also specifically requires a consciousness check

after the administration of the 5 grams of pentobarbital, and prior

to the administration of the second drug of the three-drug

protocol. Id. If, after the consciousness check the individual is

not unconscious, the procedure is started anew, with a new set of

chemicals. Id. Thus, as in DeYoung II, under Florida's protocol,

the execution cannot proceed until the individual is rendered

unconscious. Id.
Based on Eleventh Circuit precedent, the undersigned concludes

that Florida has not made a significant alteration in its lethal

injection protocol. Plaintiff has failed to support his assertion
that his case is distinguishable from the Eleventh Circuit's

decisions in the Powell cases and DeYoung II, and mere speculation
cannot substitute for evidence that the use of pentobarbital will
or very likely will cause serious illness and needless suffering.

Indeed, as the United States Supreme Court has instructed, the fact

that "an execution method may result in pain, either by accident or
as an inescapable consequence of death, does not establish the sort

of 'objectively intolerable risk of harm' that qualifies as cruel

and unusual." Baze, 553 U.S. at 50.
Nevertheless, Valle also attempts to distinguish his case from

the Powell decisions by asserting that Lundbeck, Inc., the sole

to switch to the use of pentobarbital as the anesthetic in its
lethal injection protocol").

16
manufacturer of pentobarbital, issued a position paper on July 1,

2011, condemning the misuse of that drug for executions by lethal
injection. Motion to Stay at 11. The pertinent portion of this

position paper, upon which Valle relies, states:
The use of pentobarbital to carry out the
death penalty in [United States] prisons falls
outside its approved indications. Lundbeck
cannot assure the associated safety and
efficacy profiles in such instances. Lundbeck
does not promote pentobarbital for use as part
of lethal injections and is doing everything
in its power to put an end to this misuse.

Id. (quoting Lundbeck's Position Regarding the Misuse of

Pentobarbital in Execution of Prisoners, available at
http://www.lundbeck.com/Media/pentobarbital.asp.).

Lundbeck's July 1, 2011 position paper does not support a

finding that the substitution of pentobarbital for sodium
thiopental constitutes a significant change in Florida's execution

protocol. Notably, as acknowledged by Valle, Hospira, Inc., the

only manufacturer approved by the FDA to manufacture sodium
thiopental, also condemned the use of that drug for lethal

injections. See Motion to Stay at 8. However, this objection did

not warrant its withdrawal from the various states' lethal
injection protocols. Indeed, whether or not a manufacturer objects

to the use of its drug for executions appears to have little, if

any, evidentiary weight. See Powell (Williams) I, at *8 n.7
("Williams emphasizes that the manufacturer of pentobarbital has

pronounced that it is opposed to its drug being used for

executions, but fails to demonstrate how that fact is in any way
relevant to the issues and his burden.").

17
 Moreover, Lundbeck's statements that the use of pentobarbital
in lethal injections falls outside its approved indications and

that it cannot assure pentobarbital's safety and efficacy when used

in such a fashion, see Complaint at 8-9, paragraph 31, fall short
of meeting Valle's burden. As the Supreme Court has explained,
the conditions presenting the risk must be
sure or very likely to cause serious illness
and needless suffering, and give rise to
sufficiently imminent dangers. We have
explained that 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.

Baze, 553 U.S. at 50 (internal citation and quotation marks

omitted). As such, "[a] stay of execution may not be granted . . .

unless the condemned prisoner establishes that the State's lethal
injection protocol creates a demonstrated risk of severe pain. He

must show that the risk is substantial when compared to the known

and available alternatives." Id. at 61. The statements by
Lundbeck do not satisfy this burden.

Preliminarily, the Court recognizes that other courts have

rejected claims that the absence of FDA approval of a drug for use
in lethal injections means that the drug is unsafe or suggests that

it is sure or very likely to cause serious illness or needless

suffering. See Brewer v. Landrigan, 131 S.Ct. 445 (2010) (vacating
a stay of execution which was based upon a finding that the

plaintiff had a substantial likelihood of success on the merits of

his claim that the use of sodium thiopental manufactured by a
foreign source and not approved by the FDA creates a substantial

22
and unnecessary risk of serious harm in violation of the Eighth

Amendment); Cook v. Brewer, 637 F.3d 1002, 1006-07 (9th Cir. 2011)

("Cook relies on his allegations that Arizona's sodium thiopental
is imported and not approved by the FDA. But Landrigan . . .
advises that these facts are not sufficient to state a plausible

Eighth Amendment claim"); Powell (Williams) I, at *7-8 (finding
that the plaintiff did not have a substantial likelihood of

success on the merits of his challenge to the lethal injection

protocol based on the substitution of pentobarbital for sodium
thiopental, which was supported in part by Dr. Waisel's assertion

that the use of pentobarbital as an agent to induce anesthesia is
not FDA approved). Moreover, Lundbeck's asserted lack of

information as to the efficacy and safety of pentobarbital for

use in lethal injections does nothing to establish a demonstrated
risk of severe pain or needless suffering. Indeed, the United

States District Court of Arizona arrived at this same conclusion

when faced with Lundbeck's opposition to the use of pentobarbital
in the lethal injection process in Arizona:
Finally, the Court does not find the
manufacturer's "warning" against pentobarbital
use in executions to be persuasive. Although
the company relayed to the Georgia Department
of Corrections it could not "assure the
associated safety and efficacy" of using
pentobarbital for off-label use, it also made
clear that it was "adamantly opposed" to the
use of pentobarbital "or any product for that
matter, for the purpose of capital punishment"
because such use "contradicts everything we
are in business to do—provide therapies that
improve people's lives." (Doc. 1, Ex. N.) This
is insufficient evidence to establish a
substantial risk of harm.

23
West v. Brewer, No. CV-11-1409-PHX-NVW, 2011 WL 2836754, at *8 (D.
Ariz. July 18, 2011).

Lundbeck's position on the use or misuse of pentobarbital

simply does not establish that the use of pentobarbital will
subject Valle to a risk of pain and needless suffering. Valle

submits no evidence that the administration of 5 grams of

pentobarbital during the execution process will cause him needless
suffering in and of itself. See DeYoung II, 646 F.3d at 1326-27.

Additionally, the evidence before the Court fails to support a

conclusion that Valle is likely to establish an objectively
intolerable risk that this dosage of pentobarbital will not

render Valle unconscious. Id. At 1327.
Dr. Mark Dershwitz, M.D., an anesthesiologist with a Ph.D. in

pharmacology, states that pentobarbital is and has been commonly

used to induce a barbiturate coma since the mid-1970s. Def. Ex. D,
Expert Report of Mark Dershwitz, M.D., Ph.D., at paragraphs 8-10.

He further explains:
A dose of 5,000 mg of pentobarbital will cause
virtually all persons to stop breathing. In
addition, a dose of 5,000 mg of pentobarbital
will cause the blood pressure to decrease to
such a degree that perfusion of blood to
organs will cease or decline such that it is
inadequate to sustain life. Thus, although
the subsequent administration of vecuronium
bromide, a paralytic agent, would have the
effect of paralyzing the person and preventing
him or her from being able to breathe,
virtually every person given 5,000 mg of
pentobarbital will have stopped breathing
prior to the administration of vecuronium
bromide. Thus, even in the absence of the
administration of vecuronium bromide and
potassium chloride, the administration of

24
 5,000 mg of pentobarbital by itself would
cause death in almost everyone.

Id. at paragraph 12. Dr. Waisel, on the other hand, candidly
admits that he does not know how the State's dosage of

pentobarbital will affect inmates subjected to execution by lethal

injection. He explains:
There is no way to know, in any given case,
how a massive dose of pentobarbital will
affect a human patient, because it has not
been tested to any remotely sufficient degree
to be able to say. The way Blankenship
reacted to the injection of pentobarbital may
be indicative of how many human beings will
react.

P. Ex. B, Expert Report at 4, paragraph 9 (emphasis added). This
asserted lack of knowledge simply cannot satisfy Valle's burden of

affirmatively showing that a substantial risk of serious harm

exists. Baze, 553 U.S. at 61 (stating that, in order to obtain a
stay of execution, a condemned inmate must show 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").
Therefore, neither Lundbeck's July 1, 2011 condemnation of the

use of pentobarbital for executions by lethal injection, nor its
position that pentobarbital is not approved for use in executions,

supports a finding that the substitution of pentobarbital for

sodium thiopental subjects him to a substantial risk of serious
harm or constitutes a significant change in Florida's execution

protocol. Thus, by this assertion, Valle has failed to distinguish

25
his case from the Powell decisions or the more recent decision in

DeYoung II.
Valle presents one further contention in his effort to

distinguish his claims from other previous cases seeking a stay of

execution. He argues that his assertions are not premised merely
on the substitution of pentobarbital for sodium thiopental, but

also on "the deadly combination of adding an untested drug to

Florida's already broken lethal injection process." Motion to Stay
at 6; Plaintiff's Response at 5-6. Referring to what he describes

as "Florida's unique history of botched executions" and

specifically citing to the 2006 execution of Angel Diaz as an
example, Valle asserts that Defendants' history and pattern of

deviating from and not following execution procedures violates the

Eighth and Fourteenth Amendments. Motion to Stay at 4-5, 16-17,
33. He alleges that the administration of the three drugs, the

assessment of IV lines and consciousness, and the continued

monitoring of the inmate for consciousness throughout the procedure
are inadequate in that the Defendants do not require that the

execution team members have adequate training, experience,

qualifications, and certification to properly perform the multiple
tasks associated with the execution. Id. at 12-16, 23-26. These

latter allegations not only support Valle's Eighth Amendment claim

but also form the basis of his substantive and procedural due
process claims.12

12
The Court notes that Valle's Complaint also includes various
allegations regarding illegally obtained drugs and potential black
market drugs. Any allegations regarding the illegal obtention of

26
 Since the facts supporting Valle's claim of an "already
broken" lethal injection process and "botched" executions "should
have been apparent to any person with a reasonably prudent regard
for his rights," McNair, 515 F.3d at 1177, in 2006, Florida's
"switch to pentobarbital does not awaken this long stale claim."
Powell I at *4. Accordingly, Valle has not shown that he has a
substantial likelihood of success on the merits of his claims in
that "the statute-of-limitations clock did not restart in 2007 when
Florida adopted additional safeguards in its lethal injection
protocols." Henyard, 543 F.3d at 647-48. Moreover, the
substitution of pentobarbital did not reset the statute of
limitations. Powell II; Powell (Williams) II. Thus, Valle has
not established a substantial likelihood of success on the merits
of his claims because the instant § 1983 action was filed beyond

the applicable statute of limitations.13 Valle became subject to

sodium thiopental are irrelevant given the substitution of
pentobarbital for sodium thiopental in the three-drug protocol.
The Complaint contains no allegations of fact whatsoever regarding
the manner in which FDOC obtains pentobarbital. Valle's allegation
that "[o]n information and belief, the FDOC has illegally imported
sodium thiopental and/or pentobarbital[,]" see Complaint at 12,
paragraph 39, is entirely speculative and lacking in factual
support. Moreover, Valle submitted no evidence regarding this
allegation in support of the Motion to Stay.
13
The Court recognizes that Valle also complains that
Defendants have consistently refused to reveal information about
the training of the execution team and the source or vendor history
of the lethal injection drugs, denying him due process of law.
Motion to Stay at 24, 27. Defendants respond that this claim is
barred by the statute of limitations, because at the time Florida
adopted lethal injection, it also adopted the statutes which made
the information concerning the process confidential. Defendants'
Response at 10-11. This same contention was made in Powell II,
643 F.3d at 1305, and was rejected, with the Eleventh Circuit
finding that the issue of the secrecy surrounding a lethal
injection protocol is not revived by switching one of the drugs.
27
execution by lethal injection on February 14, 2000, and
consequently had four years to file a federal civil rights claim

under 42 U.S.C. § 1983. The Complaint was filed on July 18, 2011,

long after the four-year statute of limitations expired; therefore,
Valle's claims appear to be untimely. Crowe v. Donald, 528 F.3d

1290, 1292 (11th Cir.), cert. dismissed, 553 U.S. 1077 (2008);

McNair, 515 F.3d at 1177-78.
Even if Valle's claims were timely filed, for the reasons

previously discussed, they fail as a matter of law because Valle

has not met his burden of affirmatively showing that a substantial

risk of serious harm exists or that the risk is substantial when
compared to the known and available alternatives. See Baze, 553

U.S. at 61. Indeed, Valle's allegations stop well short of

complying with the Eighth Amendment standard set forth in Baze in
that he has failed to show a "substantial risk of serious harm."

Baze, 553 U.S. at 50. Moreover, while Valle asserts in paragraph

56 of the Complaint that "available alternatives exist[,]" he has
failed to proffer any alternative procedure or drug, and failed to

show that any such alternative procedure or drug is "feasible,
readily implemented, and in fact significantly reduce[s] a

Additionally, the Eleventh Circuit has declined to find that
there is "a categorical rule entitling defendants to a lethal
injection protocol that is legislatively enacted and subjected to
extensive litigation." Powell (Williams) II, 641 F.3d at 1258.
Thus, to the extent Valle is claiming that secrecy prevented him
from litigating his issues up to now, this claim was rejected in
Powell (Williams) II and the failure to disclose is not
unconstitutional. See Powell (Williams) II, 641 F.3d at 1257-58.

28
substantial risk of severe pain."14 Baze, 553 U.S. at 52; Powell
(Williams) I, at *9 (citation omitted).

Notably, Valle's various objections to the lethal injection

protocol itself have been rejected on the merits in previous cases.

See Baze, 553 U.S. at 53-61 (rejecting claims concerning the
maladministration of the lethal injection protocol, the failure to

adopt untried and untested alternatives, the risk that the

procedures will not be properly followed, the absence of additional
monitoring by trained personnel, inadequate facilities and

training, the placement and monitoring of IV lines, the lack of

professional medical experience, and the need for a significant
consciousness test); Lightbourne, 969 So.2d at 350 n.22 (rejecting
Lightbourne's claims relating to the sufficiency of the August 2007

protocol, including that the revised procedures do not meaningfully
increase the qualifications of executioners; there is no

requirement that the team warden or executioners have experience in

conducting executions; the procedures do not specifically indicate
the qualifications needed by each designated team member;

phlebotomists are not trained to place catheters in veins; the
procedures leave inmates to guess if the execution team members are
adequately experienced and medically qualified; the procedures do

not provide any method for monitoring the inmate's consciousness

after administration of the first drug (sodium pentothal); and the

It is noteworthy that, in Baze, the inmate petitioners
14

proposed a one-drug barbituate-only protocol, using either
pentobarbital or sodium thiopental as the suggested alternative
drug. Baze, 553 U.S. at 56-58.

29
contention that pancuronium bromide is used for purely cosmetic
reasons); Schwab v. State, 969 So.2d 318 (Fla. 2007) (per curiam)

(rejecting similar assertions made by Schwab, focusing primarily on

whether the protocols adequately ensure the assessment of
consciousness and whether the use of a paralytic drug during the

execution is warranted).

Valle also complains that the lethal injection protocol was
not recertified between April 2008 and the signing of the June 8,

2011 procedure, denying him due process of law. Motion to Stay at

28. This assertion does little to advance his claim. No
certificate of readiness was issued because sodium thiopental was

unavailable, and the Governor did not sign any death warrants for

death row inmates during the period of unavailability of sodium
thiopental. Defendants' Response as 12. It was not until June 8,

2011, that the Secretary of the FDOC represented that the procedure

had been reviewed, and certified that the Department was prepared
to accomplish an execution by lethal injection. P. Ex. C, June 8,

2011, Letter from Edwin G. Buss, Secretary, to the Honorable Rick

Scott. At that time, pentobarbital was substituted for the sodium
thiopental in the three-drug protocol permitting the State to

certify that it was prepared to carry out the lethal injection

protocol. P. Ex. A, Execution by Lethal Injection Procedures,
dated June 8, 2011. Thus, the lack of recertification of the

process during this period of unavailability of sodium thiopental

is not probative of any fact relevant to Valle's claims.

30
 * * *

In consideration of the foregoing, the Court concludes that
Valle has failed to carry his burden of establishing that he has a

substantial likelihood of succeeding on the claims raised in this

action. For this reason alone, the Motion to Stay would be due to
be denied.

* * *

DONE AND ORDERED at Jacksonville, Florida, this 9th day of

August, 2011, at 11:20 a.m.

31