[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 15, 2011
JOHN LEY
No. 11-12613 CLERK
EDDIE D. POWELL,
Plaintiff-Appellant,
versus
KIM THOMAS, Interim Commissioner,
Alabama Department of Corrections,
individually and in his official capacity,
ANTHONY PATTERSON, Warden,
Holman Correctional Facility,
individually and in his official capacity,
Defendants-Appellees.
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On Appeal from the United States District Court for the
Middle District of Alabama
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(June 15, 2011)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Eddie Powell is currently on death row in Alabama.1 He is scheduled for
execution by lethal injection on Thursday, June 16, 2011 at 6:00 p.m. On May 13,
2011, Powell filed this civil rights action in the United States District Court for the
Middle District of Alabama under 42 U.S.C. § 1983, contending that the Alabama
Department of Corrections’ (“ADOC”) recent change from sodium thiopental to
pentobarbitol as the first of three drugs used in the lethal injection protocol
constitutes cruel and unusual punishment in violation of the Eighth Amendment
and violates his rights protected by the Due Process Clause of the Fourteenth
Amendment. Powell seeks declaratory and injunctive relief aimed at stopping
Alabama from executing him using its lethal injection protocol. The district court
just granted the ADOC’s motion to dismiss on June 9, 2011 because Powell’s §
1983 action is barred by the two-year statute of limitations. Powell never moved
the district court for a temporary stay of execution, although the district court
observed that if Powell had moved for a stay, it would have denied the application.
On appeal, Powell argues that the district court erred in granting the motion
to dismiss on statute of limitations grounds because: (1) in rejecting his claim that
1
The facts of Powell’s crimes are laid out in Powell v. State, 796 So. 2d 404 (Ala. Crim.
App. 1999), aff’d, 796 So. 2d 434 (Ala. 2001), cert. denied, 534 U.S. 904 (2001). We affirmed the
denial of Powell’s petition for writ of habeas corpus in Powell v. Allen, 602 F.3d 1263 (11th Cir.
2010) (per curiam), cert. denied, 131 S.Ct. 1002 (2011).
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the ADOC’s lethal injection protocol violates the Eighth Amendment, the district
court relied on external evidence and dicta, and the change in lethal injection
protocol is significant; and (2) his claim regarding Alabama’s secrecy and
arbitrary changes also accrued when the ADOC changed the first drug in the
protocol. After an expedited briefing schedule and thorough review, we affirm.
We review the district court’s grant of a motion to dismiss de novo,
accepting the allegations in the complaint as true and construing them in the light
most favorable to the plaintiff. Belanger v. Salvation Army, 556 F.3d 1153, 1155
(11th Cir. 2009).
The relevant facts and procedural history are these. On April 15, 2011, the
Alabama Supreme Court set Powell’s execution for June 16, 2011. On April 26,
2011, the ADOC publicly announced that it was changing the first drug in its
lethal injection protocol from sodium thiopental to pentobarbital. Seventeen days
later, Powell filed this § 1983 action in the district court, claiming that the change
in protocol violated his rights under the Eighth and Fourteenth Amendments. In
rejecting his claims, the district court concluded that they were brought well past
the two-year statute of limitations governing § 1983 actions, since the statute of
limitations for Powell’s challenge to execution by lethal injection began running
on July 31, 2002, the last time the state made a “significant change” in the state
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execution protocol by switching from electrocution to lethal injection, and
therefore they expired on July 31, 2004.
Powell is not the first Alabama death row inmate to bring these
constitutional causes of action. A nearly identical complaint was filed by another
Alabama death row inmate, Jason Oric Williams. On May 13, 2011, Williams
filed an emergency motion to intervene in Powell’s action and a motion for a
temporary stay of execution. The district court permitted Williams to intervene,
given the overlapping “common issues of fact and law” and Williams’s imminent
May 19, 2011 execution date. In a memorandum opinion and order entered on
May 16, 2011, the district court denied Williams’s motion for a temporary stay of
execution, however, and a panel of this Court affirmed that decision in a published
opinion on May 19, 2011. Powell v. Thomas, __ F.3d __, 2011 WL 2077796
(11th Cir. May 19, 2011) (per curiam) (styled “Powell” because Williams
intervened in this case; hereinafter “Powell(Williams)”), cert. denied, Williams v.
Thomas, __ S. Ct. __, 2011 WL 1894851 (U.S. May 19, 2011).
In Williams’s appeal, the Eleventh Circuit first addressed a § 1983 claim
identical to Powell’s Eighth Amendment claim, recognizing 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
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‘subjectively blameless for purposes of the Eighth Amendment.’”
Powell(Williams), 2011 WL 2077796, at *1 (quoting Baze v. Rees, 553 U.S. 35,
50 (2008) (plurality opinion)). We then rejected his claim, squarely holding that
“[t]he evidence present does not demonstrate that the ADOC’s use of pentobarbital
creates substantial risk of serious harm to Williams.” Id.
Turning to Williams’s notice claim, the Eleventh Circuit discussed, among
other cases, Nelson v. Campbell, 541 U.S. 637 (2004), which Williams had relied
on to establish an Eighth Amendment right to know the details surrounding his
execution. We recognized that in Nelson, the Supreme Court had “concluded that
42 U.S.C. § 1983 was ‘an appropriate vehicle for petitioner’s Eighth Amendment
claim seeking a temporary stay’ based on altered execution protocols that could
violate a defendant’s civil rights.” Powell(Williams), 2011 WL 2077796, at *2
(quoting Nelson, 541 U.S. at 639). The Powell(Williams) panel then noted that in
the case before it, “the district court found that the State’s representations
regarding the amended execution protocol were accurate and adequately informed
Williams of the process that would be used.” Id. at *3. Notably, we concluded:
“The replacement of sodium thiopental with pentobarbital does not constitute a
significant alteration in the ADOC’s lethal injection protocol, and . . . such an
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amendment does not violate the Eighth Amendment under the cases cited by
Williams.” Id. (emphasis added).
Today we are called on to determine whether, in light of our prior precedent
in Powell(Williams), Powell’s claims are still viable. “All constitutional claims
brought under § 1983 are tort actions, subject to the statute of limitations
governing personal injury actions in the state where the § 1983 action has been
brought.” Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir. 2008) (quotation
omitted). In Alabama, where Powell brought this action, that limitations period is
two years. See Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989)
(“[T]he two-year limitations period . . . applies to section 1983 actions in
Alabama.”).
In McNair v. Allen, 515 F.3d 1168 (11th Cir. 2008), we set out the
triggering dates for the statute of limitations for a challenge to a method of
execution. We held that an inmate’s “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.”
Id. at 1174 (emphasis added). As we discussed in McNair, in July 2002, the state
of Alabama implemented a new execution protocol, changing the “preferred
method of execution from electrocution to lethal injection.” Id. at 1177. Inmates
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on death row at that time, including Powell, had thirty days to opt out of the lethal
injection protocol and elect execution by electrocution. For any death row inmate
who did not choose electrocution, July 31, 2002 was the date “when it became
clear he would be executed by lethal injection,” and thus, was the date when the
running of the statute of limitations commenced. Id. Simply put, that meant that,
in McNair, the statute of limitations for the death row inmate’s § 1983 Eighth
Amendment claim challenging Alabama’s lethal injection protocol began to run on
July 31, 2002. And, “absent a significant change in the state’s execution protocol
(which did not occur in [that] case),” the inmate was required to bring his claim by
July 31, 2004, which was “more than two years before his complaint was filed.”
Id. The inmate’s claim was, therefore, barred by the two-year statute of
limitations.
Here, Powell’s conviction and sentence became final on October 1, 2001,
when the United States Supreme Court denied Powell’s petition for a writ of
certiorari on direct review of his conviction and sentence. Powell v. Alabama, 534
U.S. 904 (2001). The statute of limitations was not triggered on that date because,
“at that time, Alabama had not yet adopted lethal injection as a form of execution.”
Id. Hence, Powell’s challenge to execution by lethal injection accrued on July 31,
2002, absent a later “significant change” in the state execution protocol.
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Powell claims that the basis of his first claim -- that the ADOC’s lethal
injection protocol violates the Eighth Amendment -- has undergone a “significant
change” as contemplated by McNair, because of the recent change in the
anesthetic used to ensure that there is no pain during the remaining stages of the
procedure. However, this very argument -- that the ADOC’s change from sodium
thiopental to pentobarbital, is a substantial or significant change in the lethal
injection protocol -- was rejected by a panel of this Court in Powell(Williams),
where we held that “[t]he replacement of sodium thiopental with pentobarbital
does not constitute a significant alteration in the ADOC’s lethal injection
protocol.” 2011 WL 2077796, at *3 (emphasis added). Indeed, as the Tenth
Circuit has recognized, sodium thiopental and pentobarbital are both classified as
barbiturates. See Pavatt v. Jones, 627 F.3d 1336, 1337 (10th Cir. 2010). They
differ in their length of effect; sodium thiopental is “ultrashort-acting,” while
pentobarbital is “intermediate-acting” -- which simply means its effect lasts longer
than that of sodium thiopental. Id. at 1340 & n.3.
Powell’s attempts to circumvent the holding of Powell(Williams) fall flat.
As for Powell’s claim that Powell(Williams)’s key language is dicta, the Eleventh
Circuit panel in that discussion was expressly addressing Williams’s claim that he
had an Eighth Amendment right to know the details surrounding his execution.
8
Williams had based his claim, in part, on Nelson, 541 U.S. at 639, where the
Supreme Court had concluded “that 42 U.S.C. § 1983 was ‘an appropriate vehicle
for petitioner’s Eighth Amendment claim seeking a temporary stay’ based on
altered execution protocols that could violate a defendant’s civil rights.”
Powell(Williams), 2011 WL 2077796, at *2 (emphasis added). Applying Nelson
to Williams’s claim, the Powell(Williams) panel concluded that “[t]he replacement
of sodium thiopental with pentobarbital does not constitute a significant alteration
in the ADOC’s lethal injection protocol, and . . . such an amendment does not
violate the Eighth Amendment under the cases cited by Williams.” Id. at *3
(emphasis added). Accordingly, the Powell(Williams) panel necessarily answered
whether the change in lethal injection protocol was a significantly altered one in
rejecting Williams’s Nelson claim. Its language regarding whether the alteration
was significant, therefore, constitutes holding, not dicta. As we’ve said, dicta is
defined as those portions of an opinion that are “not necessary to deciding the case
then before us,” whereas holding is comprised both of the result of the case and
“those portions of the opinion necessary to that result by which we are bound.”
United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (quotation
omitted).
9
Moreover, if the change in protocol is not a “significant alteration” for
purposes of an Eighth Amendment notice claim, we cannot see how it would
constitute a significant change for purposes of a statute of limitations’ triggering
date. Indeed, we recognize that Williams’s claim in Powell(Williams) was decided
on an appeal from the district court’s denial of a motion for a temporary stay of
execution. However, as the district court noted, no reason has been offered, and
none can be envisioned, why Powell(Williams)’s holding would mean something
different when analyzing whether a change in execution protocol is significant or
substantial in either circumstance. In both cases, the allegations are identical, and
the Powell(Williams) Court clearly went to the merits of the issue when ruling on
the motion for stay. Thus, not only do we reject Powell’s suggestion that the
district court erroneously relied on external evidence from Powell(Williams), and
went beyond the face of Powell’s complaint in deciding this case, but we conclude
that the district court did not err in basing its conclusion on our binding precedent
in Powell(Williams), which applies here. Furthermore, in light of our binding
precedent, we are obliged to reject Powell’s attempt to relitigate the issue of
whether the ADOC’s action in changing the first drug in the lethal injection
protocol from sodium thiopental to pentobarbital is a “significant” change for
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purposes of McNair. For these reasons, the district court did not err in
determining that Powell’s claim is barred by the statute of limitations.
Nor, moreover, did the district court err in dismissing Powell’s second claim
-- that his rights under the Eighth and Fourteenth Amendments were violated
because Alabama’s private execution protocol was changed secretly and without
any oversight -- on statute of limitations grounds. As the district court held,
Powell could have challenged the ADOC’s “secrecy” surrounding the method of
execution beginning July 31, 2002, as the facts supporting this cause of action
“should have been apparent to any person with a reasonably prudent regard for his
rights.” McNair, 515 F.3d at 1177. Indeed, as Powell acknowledges in his
opening brief, “Alabama does not mandate by statute or regulation what drugs are
to be used in conducting a lethal injection, and the ADOC may change the drugs
used in the protocol at any time for any reason without notice or oversight[,] . . .
[and the drug used] is subject to change at any time.” Blue Br. at 13 n.3. Thus,
Powell fails to show how his claim about the secrecy surrounding the ADOC’s
recent change in lethal injection protocol was revived by the ADOC’s 2011 switch
in drugs. And in any event, this very claim was also rejected by this Court in
Powell(Williams), which, as noted above, constitutes binding precedent. See 2011
WL 2077796, at *3. The district court, therefore, did not err in finding Powell’s
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second claim for relief barred by the statute of limitations as well. Accordingly,
we affirm.2
AFFIRMED.
2
In light of our resolution of this appeal, as well as our binding precedent in
Powell(Williams), we also DENY Appellant’s Emergency Motion for Stay of Execution.
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