Arthur v. Commissioner, Alabama Department of Corrections

HULL, Circuit Judge,

concurring in denial of rehearing en banc:

Only because a dissent has been filed, I write briefly to put this case in the proper context and to set forth why I concur in the denial of rehearing en banc.

Under sentence of death, Thomas Arthur’s execution is currently scheduled for May 25, 2017 at 6:00 p.m. CST. This is Mr. Arthur’s eighth scheduled execution1 and seventh 42 U.S.C. § 1983 case. Arthur v. Comm’r, Ala. Dep’t of Corr., CM/ECF for the Eleventh Cir. Ct. App. no. 17-11879, at 2, 2017 WL 2292095, at *1, 680 Fed.Appx. 894, 896 (11th Cir. 2017) (the “Panel Opinion”).

This appeal arises in Mr. Arthur’s sixth § 1983 case. Panel Opinion at 2, 2017 WL 2292095, at *1, 680 FedAppx. at 896. As outlined in great detail in this Court’s 58-page panel opinion, Mr. Arthur, from 2007-2017, in multiple § 1983 cases, has challenged Alabama’s lethal-injection execution protocol, including the three drugs to be administered in the execution, its substitution of midazolam as the first drug, its consciousness checks, and virtually every feature of Alabama’s execution procedures. Panel Opinion at 8-12, 2017 WL 2292095, at *4-5, 680 FedAppx. at 899-902.

Mr. Arthur’s Previous § 1983 Cases

Notably, Mr. Arthur’s third § 1983 method-of-execution litigation lasted for over five years. Panel Opinion at 9, 2017 WL 2292095, at *4, 680 FedAppx. at 899. In April 2011, Alabama switched the first drug in its lethal-injection protocol from sodium thiopental to pentobarbital. See Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1275 (11th Cir. 2016) (“Arthur”). Two months later, Mr. Arthur filed a new § 1983 complaint challenging this pentobarbital-based protocol. Id

In September 2014, Alabama switched to midazolam. Id. at 1276. Mr. Arthur twice amended his complaint in his third § 1983 case to challenge midazolam and Alabama’s execution protocol involving mi-dazolam. Id. at 1275-78.

In the instant appeal in this sixth § 1983 case, this Court’s panel opinion recounts the variety of just some of Mr. Arthur’s claims in that third § 1983 litigation because Mr. Arthur did not raise his current “telephone-in-the-viewing-room claim” during that five-year challenge to Alabama’s *1159execution protocol in that third § 1983 lawsuit. Panel Opinion at 9-10, 2017 WL 2292095, at *4-5, 680 Fed.Appx. at 899-902. Instead, Mr. Arthur raised this telephone claim only in this current sixth § 1983 case (which, as explained below, is now time-barred). See Panel Opinion at 15-16, 2017 WL 2292095, at *6-7, 680 Fed. Appx. at 901-04.

But back to Mr. Arthur’s third § 1983 case. After holding a two-day bench trial in January 2016 regarding midazolam, the “pinch test,” medical monitoring, and many other § 1983 claims about Alabama’s execution procedures, the district court issued two dispositive orders in Mr. Arthur’s third § 1983 case. Arthur, at 1278, 1283, 1296. In its first order, the district court determined that the Alabama Department of Corrections (“ADOC”) was entitled to judgment on Mr. Arthur’s facial method-of-execution and Equal Protection challenges. Id. at 1283-86. In its second order, the district court denied relief on Mr. Arthur’s many as-applied challenges to ADOC’s method of execution as applied to Mr. Arthur personally. Id. at 1296-98. As a result, in July 2016, the district court entered final judgment on Mr. Arthur’s third § 1983 case raising multiple challenges under the Eighth Amendment, and Mr. Arthur timely appealed to our Court. Id. at 1298.

On November 2, 2016, this Court affirmed the district court’s final judgment in Mr. Arthur’s third § 1983 case, rejecting his various challenges to Alabama’s execution protocol, including, but not limited to, Alabama’s use of midazolam as the first drug in the three-drug lethal injection series and his request for a firing squad to execute him. Id. at 1303-04, 1315-17. After exhaustively reviewing the evidence submitted by both Mr. Arthur and ADOC in that third § 1983 case, this Court’s 140-page opinion determined, among other things, that Mr. Arthur had not met his burden of demonstrating that, as applied to him, Alabama’s lethal injection protocol was “sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers,” the showing demanded by the Supreme Court. Id. at 1312 (quoting Glossip v. Gross, 576 U.S.-,-, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015)).

On February 21, 2017, the United States Supreme Court denied Mr. Arthur’s petition for a writ of certiorari in that five-year § 1983 litigation. Arthur v. Dunn, — U.S.-, 137 S.Ct. 725, 197 L.Ed.2d 225 (2017). On April 24, 2017, the United States Supreme Court denied Mr. Arthur’s petition for rehearing. Mr. Arthur has exhaustively litigated his § 1983 Eighth Amendment claim and many other claims for 25 years in state and federal courts. Arthur, at 1274-78 (recounting litigation history).

Statute of Limitations in Sixth § 1983 Case

This brings us to the background of ADOC’s telephone prohibition, which is the subject of this appeal in Mr. Arthur’s sixth § 1983 case. As also outlined in great deal in this Court’s panel opinion, Mr. Arthur’s telephone-in-the-viewing-room claim, brought only in his sixth § 1983 case, is barred by the statute of limitations. Panel Opinion at 20-25, 2017 WL 2292095, at *8-11, 680 Fed.Appx. at 904-08.

The parties agree that Mr. Arthur’s § 1983 telephone-in-the-viewing-room claim is subject to a two-year statute of limitations. Powell v, Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011) (per curiam); Ala. Code § 6-2-38. To be clear, Mr. Arthur has not requested that his designated execution witness have access to a telephone somewhere else in the prison or even adjacent to the execution viewing room. See Panel Opinion at 3, 2017 WL 2292095, at *1-2, 680 Fed.Appx. at 896-98. The § 1983 complaint and briefs explicitly request a telephone inside the viewing room. Panel Opinion at 3, 2017 WL 2292095, at *1-2, 680 Fed.Appx. at 896-98. The problem in this appeal for Mr. Arthur is the statute of limitations that applies to the claim in his sixth § 1983 case. Specifically at issue is when the statute of limita*1160tions period began to run on Mr. Arthur’s claim that Alabama’s telephone prohibition for his friend-witness in the viewing room violates the First Amendment right of access to the courts to bring a potential underlying Eighth Amendment claim during his execution. While federal courts borrow the statute of limitations period from state law, “the accrual date of a § 1983 cause of action is a question of federal law.” Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973 (2007).

Regardless of whether Mr. Arthur’s claim is best analyzed under the method-of-execution or the access-to-courts framework, this Court’s panel opinion concluded that the statute of limitations began to run when the AJDOC telephone prohibition at issue was enacted on August 1, 2012, because at that point Mr. Arthur knew or should have known of the injury for which he seeks relief. Panel Opinion at 22, 2017 WL 2292095, at *9-10, 680 Fed.Appx. at 905-07; see Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (per curiam) (concluding that the statute of limitations for an access-to-courts claim begins to run “only when the plaintiffs knew or should have known that they have suffered injury to their right of access and who caused it”); McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). Given Mr. Arthur’s extensive challenges to so many aspects of ADOC’s rules and protocols, our Court’s panel opinion agreed with the district court’s ruling that August 1, 2012 was the point at which Mr. Arthur knew or should have known of the putative injury to his right of access. Panel Opinion at 22, 2017 WL 2292095, at *9-10, 680 Fed.Appx. at 905-07; see Chappell, 340 F.3d at 1283. And in its careful review, this Court’s panel opinion reasoned that, even assuming arguendo that the two-year statute of limitations did not begin to run until ADOC switched to midazolam as the first drug in September 2014, it still expired by September 2016, and Mr. Arthur’s sixth § 1983 lawsuit was filed too late. Panel Opinion at 22, 2017 WL 2292095, at *9-10, 680 Fed.Appx. at 905-07.

Narrow Scope of This Appeal

The narrow scope of this appeal is also important to context. As discussed in this Court’s panel opinion, Alabama Code § 15-18-83 restricts execution witnesses to relatives or friends of Mr. Arthur. In this appeal, Mr. Arthur has not made a claim that § 15-18-83 is unconstitutional. Panel Opinion at 4-5, 2017 WL 2292095, at *2-3, 680 FedAppx. at 897-99. In this appeal, Mr. Arthur has not made a claim that he has a constitutional right under the Sixth Amendment or Fourteenth Amendment to have his counsel present as a witness in the execution viewing room. Panel Opinion at 4 & n.4, 5, 19, 38, 2017 WL 2292095, at *2 & n. 4, *2-3, *8, *11, 680 Fed.Appx. at 897 & n. 4, 897-99, 904, 907. Accordingly, this Court’s panel opinion did not address such claims, nor did the panel opinion address the more general question of whether Mr. Arthur retains a right of access to the courts during his execution. Panel Opinion at 4 & n.4, 19, 2017 WL 2292095, at *2 & n. 4, *8, 680 FedAppx. at 897 & n. 4, 904. Indeed, the panel opinion proceeded under the assumption that Mr. Arthur does have a right of access during his execution. Panel Opinion at 20-25, 2017 WL 2292095, at *8-11, 680 FedAppx. at 904-08. But there were insurmountable statute of limitations problems for Mr. Arthur as discussed in more detail in the Court’s panel opinion. Panel Opinion at 21-25, 2017 WL 2292095, at *9-11, 680 Fed. Appx. at 905-08.

Furthermore, this Court’s panel opinion emphasized that Mr. Arthur failed to cite any authority standing for the proposition that visitors in an Alabama correctional facility (which is what Mr. Arthur’s designated witness, an attorney, will be under Alabama law when witnessing his execution) have any independent constitutional right to telephone access inside the execution viewing room. Panel Opinion at 33, 2017 WL 2292095, at *14-15, 680 Fed. *1161Appx. at 911-13. And again, Mr. Arthur never challenged the constitutionality of the relevant Alabama law. Panel Opinion at 4-5, 2017 WL 2292095, at *2-3, 680 FedAppx. at 897-99.

For these and the other reasons outlined in this Court’s panel opinion, I concur in the denial of rehearing en banc in Mr. Arthur’s sixth § 1983 case as to his eighth scheduled execution.

. Alabama previously scheduled Mr. Arthur’s execution for: (1) April 27, 2001; (2) September 27, 2007; (3) December 6, 2007; (4) July 31, 2008; (5) March 29, 2012; (6) February 19, 2015; and (7) November 3, 2016. See Arthur v. Comm’r, Ala, Dep’t of Corr., 840 F.3d 1268, 1274, 1275 n.2 (11th Cir. 2016).