[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11536
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-00316-WKW-CSC
CHARLES LEE BURTON, 2:16-cv-0267
Consol Plaintiff - Appellant,
versus
WARDEN,
COMMISSIONER, ALABAMA DOC,
Defendants - Appellees.
__________________________________________________________________
ROBERT BRYANT MELSON, 2:16-cv-0268
Consol Plaintiff - Appellant,
versus
WARDEN,
COMMISSIONER, ALABAMA DOC,
Defendants - Appellees.
__________________________________________________________________
GEOFFREY TODD WEST, 2:16-cv-0270
Consol Plaintiff - Appellant,
versus
WARDEN,
COMMISSIONER, ALABAMA DOC,
Defendants - Appellees.
__________________________________________________________________
TORREY TWANE MCNABB, 2:16-cv-0284
Consol Plaintiff - Appellant,
versus
WARDEN,
COMMISSIONER, ALABAMA DOC,
Defendants - Appellees.
__________________________________________________________________
JEFFREY LYNN BORDEN, 2:16-cv-0733
Consol Plaintiff - Appellant,
versus
WARDEN,
COMMISSIONER, ALABAMA DOC,
Defendants - Appellees.
2
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(September 6, 2017)
Before: TJOFLAT, ROSENBAUM and JILL PRYOR, Circuit Judges.
TJOFLAT, Circuit Judge.
This appeal involves four of a group of twelve cases filed in the Middle
District of Alabama by death row inmates challenging, under 42 U.S.C. § 1983, the
constitutionality of the State’s lethal injection protocol.1 In a single order, the
District Court dismissed the four cases pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim for relief. We reverse the District Court’s
dismissal of the cases and remand them for further proceedings.
I.
Since July 1, 2002, Alabama has employed lethal injection as its preferred
method of executing inmates sentenced to death in the State.2 Act 2002-492, 2002
1
Appellant Robert Bryant Melson was an initial party to this appeal. Melson was
executed on June 8, 2017, while briefing was still pending. On June 2, 2017, this Court stayed
Melson’s execution pending resolution of this appeal. However, on June 7, 2017, the United
States Supreme Court granted Alabama’s motion to vacate the stay of execution granted by this
Court and accordingly allowed Melson’s execution to proceed.
2
A person sentenced to death in Alabama can still elect to die by electrocution instead of
lethal injection. See Ala. Code § 15-18-82.1(a) (explaining “[a] person convicted and sentenced
3
Ala. Laws 1243 (codified at Ala. Code § 15-18-82.1). Since that time, the State’s
lethal injection procedure has involved the sequential injection of three drugs. See
Williams v. Allen, 496 F.3d 1210, 1214 (11th Cir. 2007) (noting that Alabama’s
lethal injection protocol consisting of three drugs had remained unchanged “since
its inception in 2002”). The United States Supreme Court described an identical
protocol, as implemented by the State of Kentucky, in Baze v. Rees, 553 U.S. 35,
128 S. Ct. 1520 (2008) (plurality opinion):
The first drug, sodium thiopental . . . , is a fast-acting barbiturate
sedative that induces a deep, comalike unconsciousness when given in
the amounts used for lethal injection. The second drug, pancuronium
bromide . . . , is a paralytic agent that inhibits all muscular-skeletal
movements and, by paralyzing the diaphragm, stops respiration.
Potassium chloride, the third drug, interferes with the electrical
signals that stimulate the contractions of the heart, inducing cardiac
arrest. The proper administration of the first drug ensures that the
prisoner does not experience any pain associated with the paralysis
and cardiac arrest caused by the second and third drugs.
Id. at 44, 128 S. Ct. at 1527 (citations omitted).
On April 26, 2011, Alabama substituted pentobarbital, “a short-acting
barbiturate” sedative,3 for sodium thiopental, as the first drug in its three-drug
protocol. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011) (per curiam).
Then, on September 10, 2014, the State substituted midazolam, a benzodiazepine
to death for a capital crime at any time shall have one opportunity to elect that his or her death
sentence be executed by electrocution”).
3
Nembutal, RxList, http://www.rxlist.com/nembutal-drug.htm (last visited Sept. 6, 2017).
4
sedative, 4 for pentobarbital. Brooks v. Warden, 810 F.3d 812, 816–17 (11th Cir.
2016). It also substituted rocuronium bromide for pancuronium bromide as the
second drug. Id. at 817. Potassium chloride remained the third drug. Id.
In the four cases at hand, the appellants (“Appellants”), death row prisoners
awaiting execution, claim that if they are executed in accordance with the lethal
injection protocol now in place, they will suffer “cruel and unusual punishment” in
violation of the Eighth Amendment.5 They seek an order under 42 U.S.C. § 1983
enjoining the Alabama Department of Corrections (“ADOC”) from executing them
pursuant to that protocol.6 In Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015), the
Supreme Court made clear that the “controlling opinion in Baze” set forth the two-
4
Midazolam is “a sedative of the benzodiazepine class.” Midazolam, Miller-Keane
Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 1130 (Marie T. O’Toole
et al. eds., 7th ed. 2003).
5
The Eighth Amendment applies to the states through the Fourteenth Amendment.
Rhodes v. Chapman, 452 U.S. 337, 344–45, 101 S. Ct. 2392, 2398 (1981).
6
Appellants McNabb, West, and Burton filed their complaints in April 2016. Their
complaints raised identical claims. The District Court consolidated those cases for discovery and
trial on April 28, 2016. Borden filed his complaint, which presented the same claims, on
September 7, 2016. The District Court consolidated his case with the others on January 26,
2017. Prior to consolidating Appellants’ cases, the District Court consolidated the cases of
Demetrius Frazier, David Lee Roberts, Robin Dion Myers, Gregory Hunt, Carey Dale Grayson,
and Ronald Bert Smith, all challenging Alabama’s three-drug injection protocol, for discovery
and trial. We addressed their joint appeals in Grayson v. Warden, Comm’r, Ala. DOC (Frazier),
No. 16-16876, 2017 WL 3815265 (11th Cir. Sept. 1, 2017). The District Court refers to all of
the cases challenging the three-drug protocol collectively as the “Midazolam Litigation.” In
addition to an injunction barring their executions pursuant to the three-drug protocol, Appellants
seek other injunctive relief: an order requiring the ADOC to, among other things, “disclose to
Plaintiff and his counsel the lethal injection protocol,” “submit any proposed changes to the
execution protocol to the Court immediately upon making them,” and disclose “when [the drugs
used in the protocol] were purchased, where they were purchased from, and their National Drug
Code identifying number.”
5
pronged standard a plaintiff must satisfy “to succeed on an Eighth Amendment
method-of-execution claim.” The first prong requires the prisoner to demonstrate
that the challenged method of execution presents “a ‘substantial risk of serious
harm.’” Id. (quoting Baze, 553 U.S. at 50, 128 S. Ct. at 1531). That is, the method
must “present[] a risk that is ‘sure or very likely to cause serious illness and
needless suffering, and give rise to sufficiently imminent dangers.’” Id. (quoting
Baze, 553 U.S. at 50, 128 S. Ct. at 1531). The second requires the prisoner to
“identify an alternative that is ‘feasible, readily implemented, and in fact
significantly reduce[s] a substantial risk of severe pain.’” Id. (quoting Baze, 553
U.S. at 52, 128 S. Ct. at 1532). Showing “a slightly or marginally safer
alternative” is insufficient to mount a successful challenge to a State’s method of
execution. Id. (quoting Baze, 553 U.S. at 51, 128 S. Ct. at 1531).7
Appellants contend that the ADOC’s current protocol presents a substantial
risk of serious harm that comports with Baze’s definition. They argue that the risk
is substantial because midazolam, a sedative, is not an analgesic like sodium
thiopental and pentobarbital. Consequently, they assert midazolam does not
produce the sustained state of anesthesia necessary to render them insensate to the
intolerable pain that will be generated by subsequent injections of rocuronium
7
Because the plurality in Baze first articulated the standard governing Eighth
Amendment method-of-execution challenges later applied by the Supreme Court in Glossip, we
refer to the law governing Plaintiffs’ claim here as the Baze standard.
6
bromide and potassium chloride. To satisfy Baze’s second prong, Appellants also
propose three alternative methods of execution involving single injections of either
sodium thiopental, compounded pentobarbital, or a 500-milligram bolus of
midazolam.8
Before us for review is the District Court’s Memorandum Opinion and Order
of March 31, 2017, granting the ADOC’s motion to dismiss Appellants’
complaints pursuant to Federal Rule of Civil Procedure 12(b)(6).9 In its order, the
Court concluded that Appellants claims were “identical” to the claims raised by
Ronald Bert Smith, and dismissed by the District Court under Rule 12(b)(6), in
Grayson v. Dunn (Smith), 221 F. Supp. 3d 1329 (M.D. Ala., Nov. 18, 2016), aff’d
sub nom., Grayson v. Warden, 672 F. App’x 956 (11th Cir. 2016).10
8
Appellants also raise two additional claims concerning Alabama’s execution
procedures: (1) a claim that Alabama’s consciousness assessment violates the Eighth
Amendment’s prohibition of cruel and unusual punishments because it cannot adequately
determine whether a prisoner is insensate prior to the administration of the second and third
drugs, and (2) a claim that “their right to meaningful access to the courts requires their counsel,
as a witness to their executions,” to “have access to a cellular phone or landline telephone until
their executions are complete.” In this decision, we address only the District Court’s dismissal
of Appellants’ Eighth Amendment midazolam claim. On remand, the District Court should
consider Appellants’ additional claims in a manner not inconsistent with this opinion.
9
The order also denied Appellants’ motion for leave to amend their identical complaints.
Appellants sought leave to correct a “drafting error,” add nitrogen asphyxiation as a proposed
alternative to the ADOC’s current execution protocol, and include additional facts concerning
the December 2016 execution of Ronald Bert Smith. The District Court concluded that allowing
them to do so would be “futile,” because Appellants’ proposed amendments would not “change
the fact that the underlying claim they seek to amend is untimely.”
10
Smith’s case, like McNabb, West, and Burton’s cases, was filed in April 2016. The
District Court consolidated Smith’s case with those cases on April 28, 2016.
7
In Smith, the District Court adopted the ADOC’s reading of Smith’s
complaint as a “general challenge” to its three-drug protocol that uses a paralytic
and potassium chloride as the second and third drugs. See id. at 1333. The Court
observed that Smith’s response to the ADOC’s motion to dismiss did “not address
Defendants’ contention that his claim, in actuality, is a challenge against the use of
any three-drug execution protocol.” Id. at 1334. Therefore, the Court concluded
that the challenge should have been brought during the two-year statute of
limitations period that began to run in July 2002, when Alabama chose lethal
injection over the electric chair. Id. Hence, it dismissed Smith’s complaint as
time-barred. Id. at 1335. Smith appealed that decision to this Court, and we
affirmed the District Court’s decision in December 2016. Smith, 672 F. App’x at
958.
Because the District Court found that Appellants’ complaints were identical
to Smith’s complaint, the Court concluded that its determination regarding the true
nature of Smith’s complaint as a “general challenge” to the three-drug protocol
was “equally applicable” in Appellants’ cases. Thus, it held, “[Appellants’]
claims, just like Smith’s claims, are time-barred.”
Appellants ask us to reverse the District Court’s dismissal of their Eighth
Amendment claims on the basis that the District Court erred in construing their
complaints as “general challenge[s],” in the face of allegations that plainly
8
challenge the protocol on the basis that midazolam would not render them
insensate. In response, the ADOC contends dismissal was proper because “this
Court has already considered and rejected [Appellants’] claims in their co-
plaintiff’s case.” In other words, the ADOC avers, because the District Court
agreed with the ADOC’s reading of Smith’s complaint as a general challenge to
the State’s use of a three-drug lethal injection protocol, and because a panel of this
Court did not disturb that interpretation, our decision in Smith precludes
Appellants’ claims in this case.
After carefully considering the record and the parties’ briefs, we hold that
dismissal of Appellants’ claims was improper. We do so because we are not
persuaded by the ADOC’s argument—which the District Court accepted in Smith
and this case—that Appellants’ complaint is a general challenge to the State’s
three-drug lethal injection protocol. We also note that our decision today does not
contradict the law-of-the-case doctrine, because the panel’s holding in Smith does
not apply in Appellants’ cases and thus does not dictate our decision in this appeal.
We therefore reverse the District Court’s dismissal and remand the case for further
proceedings.
II.
The ADOC argues that we should affirm the District Court’s dismissal of
Appellants’ cases for two independent reasons. First, it argues that our holding in
9
Smith is the law of the case that binds our decision in this appeal, because Smith’s
case and Appellants’ cases—having been included in the “Midazolam
Litigation”—have now become the same case. Second, the ADOC asserts that
Appellants’ complaints are time-barred because they do not really challenge the
State’s use of midazolam as the first drug in its three-drug protocol. In actuality,
the ADOC argues, the complaints are, “on [their] face,” nothing more than
“general challenge[s]” to the three-drug lethal injection protocol Alabama has used
to carry out capital punishment sentences since 2002. We address the ADOC’s
arguments in order.
A.
We begin our analysis by dispensing with the ADOC’s law-of-the-case
argument. The law-of-the-case doctrine holds that “findings of fact and
conclusions of law by an appellate court are generally binding in all subsequent
proceedings in the same case in the trial court or on a later appeal.” Westbrook v.
Zant, 743 F.2d 764, 768 (11th Cir. 1984) (emphasis added) (quoting Dorsey v.
Continental Cas. Co., 730 F.2d 675, 678 (11th Cir.1984)).
Here, the ADOC argues, since the District Court consolidated Smith’s case
and Appellants’ cases as part of the “Midazolam Litigation,” all of those cases are
now one case, such that Smith’s affirmance of the District Court’s dismissal of
Smith’s complaint now dictates our decision in this appeal. Thus, the ADOC
10
argues, since the panel in Smith accepted the District Court’s reading of Smith’s
complaint as a time-barred “general challenge” to Alabama’s three-drug lethal
injection protocol, we must now read Appellants’ complaints as time-barred
general challenges as well.
We disagree. Appellants and Smith’s shared status as part of the
“Midazolam Litigation” does not change the fact that they are still separate cases.11
11
Although Smith’s case and Appellants’ cases were filed contemporaneously and
contained identical complaints, Smith’s case took a different procedural route than Appellants’
cases. Smith’s execution was scheduled to take place on December 8, 2016. In its motion to
dismiss Smith’s complaint, the ADOC offered Smith an alternative method of execution. It
offered to consent to Smith’s execution pursuant to a single-drug protocol consisting of
midazolam. On November 9, 2016, the District Court entered an order for the purpose of
“explor[ing] the midazolam option pled and urged by Mr. Smith and presently offered by
Defendants.” The Court reasoned that this alternative method of execution was appropriate
based on Smith’s own allegations. It explained that Smith “pled it and offered the option as
viable, readily implemented and available, and Defendants have accepted the offer.” Moreover,
it observed, “[t]he parties all agree that (1) midazolam is available, (2) it is feasible, (3) it is
readily implementable, and (4) it is not risky with regard to unnecessary pain and suffering.”
Thus, the Court ordered the ADOC to submit to the Court “on or before November 14, 2016, a
current one-drug execution protocol and a current three-drug execution protocol for in camera
inspection.” It also ordered Smith to show cause, by November 16, 2016, “why the court should
not order Defendants to execute him using the method pled in his complaint, viz., a large initial
dose of midazolam, followed by continuous infusion.”
Smith responded by agreeing that the “Court can and should order the Defendants to use
Mr. Smith’s identified single-drug midazolam alternative.” But Smith also argued that, before
implementing the proposed execution protocol, the ADOC must, to the Court’s satisfaction,
“adopt[] an adequate protocol, including accounting for all necessary equipment and sufficient
training to execute Mr. Smith using his proposed single-drug midazolam alternative.” As part of
that protocol, Smith argued that the ADOC should follow the recommendation of Smith’s expert
witness, Dr. Tackett, who recommended “a loading dose between 2.5 and 3.75 grams” of
midazolam “followed by a continuous IV infusion until death.”
The ADOC, replying on November 18, rejected Smith’s proposal that the ADOC employ
Dr. Tackett’s formulation of the midazolam alternative, contending that his proposed formulation
was a material departure from the formulation Smith described in his complaint, “a one-drug
protocol consisting of a 500-milligram bolus of midazolam followed by a continuous infusion.”
11
That the District Court consolidated cases challenging the State’s midazolam
protocol for purposes of discovery and trial did not transform them into a single
case. Here, we direct the parties to our law-of-the-case discussion in Grayson v.
Warden, Comm’r, Ala. DOC (Frazier), No. 16-16876, 2017 WL 3815265 (11th
Cir. Sept. 1, 2017), in which we reversed the District Court’s entry of summary
judgment in favor of the ADOC in four of the consolidated cases after denying the
ADOC’s Rule 12(b)(6) motion to dismiss. In Frazier, we discussed at length why
the cases forming the “Midazolam Litigation” are not the same case for law-of-the-
case purposes. Id. at *18–29. As we explained there, many of the cases
consolidated by the District Court were at various stages of litigation when joined
together, and many followed entirely different procedural routes after
consolidation.12
Indeed, compare Smith’s case with Appellant Borden’s case. The District
Court entered judgment as to Smith on November 18, 2016. Borden’s case was
not consolidated until January 2017. How then can the ADOC now argue that
On receiving the ADOC’s reply to Smith’s response to its order to show cause, the Court
realized that Smith and the ADOC had reached an impasse. Thus, the Court entered an order
abandoning further consideration of the midazolam alternative and granted the ADOC’s motion
to dismiss.
12
For example, compare the cases at issue in Frazier with the cases at issue in Smith and
this appeal. In Frazier, the cases took the route of full discovery and proceeded to summary
judgment. Frazier, 2017 WL 3815265, at *23. In Smith and this case, the cases took the route of
no discovery and the District Court based its dispositive ruling on the pleadings alone. In fact,
Smith and Appellants’ cases were consolidated after discovery was closed in the Frazier
appellants’ cases. Id.
12
Smith’s failure to respond to the ADOC’s interpretation of his complaint must be
imputed to Borden? It cannot: so far as the law-of-the-case doctrine is concerned,
the cases are not and cannot be one and the same. Simply put, “consolidating”
multiple cases brought by multiple parties against multiple defendants for the
purpose of streamlining discovery and trial does not transform those cases into
“one case” such that the law-of-the case doctrine applies.
Even assuming that Smith’s case and Appellants’ cases are one, Smith
cannot dictate our decision here. In Frazier, we explained that Smith could not
apply to that case because the District Court expressly stated that its decision only
applied to Smith’s case, and not the four other cases that were filed
contemporaneously with Smith’s. What’s more, the Smith panel’s decision
pertained only to Smith. As we noted in Frazier, Smith had no application in the
four other contemporaneously filed cases. Frazier, 2017 WL 3815265, at *28.
Thus, the ADOC’s law-of-the-case argument fails.
B.
Having set aside the ADOC’s law-of-the-case argument, we consider the
fulcrum of this appeal: whether Appellants’ Eighth Amendment claim is sufficient
to survive the ADOC’s Rule 12(b)(6) motion to dismiss. We must first determine
whether the Complaint states a claim for relief under the governing legal standard.
We review a district court’s decision to grant a motion to dismiss de novo.
13
Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002). When
considering a motion to dismiss, we “accept as true the facts as set forth in the
complaint and draw all reasonable inferences in the plaintiff’s favor.” Randall v.
Scott, 610 F.3d 701, 705 (11th Cir. 2010).
Appellants’ complaints are identical, save for their different accounts of each
Appellant’s conviction and litigation history.13 They are indistinguishable with
respect to the Eighth Amendment claim now before us. Hence, for convenience,
we refer only to Geoffrey West’s complaint (“the Complaint”). The Complaint
challenges the Eighth Amendment sufficiency of Alabama’s protocol under the
controlling standard set forth by the Supreme Court in Baze v. Rees, 553 U.S. 35,
128 S. Ct. 1520 (2008) (plurality opinion). That standard requires a prisoner to
plead and prove that the challenged execution protocol creates a “substantial risk
of serious harm,” such that prison officials cannot argue “they were subjectively
blameless for purposes of the Eighth Amendment.” Id. at 50, 128 S. Ct. at 1531
(quotations omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846, and n.
13
We also note that Appellants’ complaints are identical in another respect. In Frazier,
we made clear that the parties’ pleadings came before us in considerable disarray. 2017 WL
3815265, at *30–31. The pleadings do not fare much better in this case. In addition to including
factual allegations its drafter apparently thought would be probative of his Eighth Amendment
claim at trial, but that are unnecessary to establish an Eighth Amendment claim sufficient to
withstand a motion to dismiss, each complaint includes nine exhibits containing over 100 pages
of extraneous information. These exhibits include, among other things, a copy of a motion filed
in the Alabama Supreme Court, an expert witness report, an email from an official with the Ohio
Department of Rehabilitation and Correction to an official at the Food and Drug Administration,
and execution procedures promulgated by the Arizona Department of Correction.
14
9, 114 S. Ct. 1970 (1994)). Under the standard, a “substantial risk of serious
harm” does not include any possibility the prisoner will suffer pain; rather, “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.” Id. at 49–
50, 128 S. Ct. at 1530–31 (quotations omitted) (quoting Helling v. McKinney, 509
U.S. 25, 33, 34–35, 113 S. Ct. 2475 (1993)). Additionally, the challenger must
also prove the existence of an “alternative procedure” that is “feasible, readily
implemented, and in fact significantly reduce[s] a substantial risk of severe pain.
Id. at 52, 128 S. Ct. at 1532.
The Complaint alleges that the third drug, potassium chloride, “indisputably
causes an unconstitutional level of pain” when a prisoner is not “in a deep level of
anesthesia” before potassium chloride is administered. And, Appellants allege,
midazolam cannot be trusted to put prisoners in such a sedated state. They argue
that midazolam, as “a sedative and not an analgesic,” would likely render a
prisoner “unable to respond to . . . the ADOC’s consciousness check” yet would do
little or nothing to prevent the prisoner from “feel[ing] the excruciating effects of
the second and third drugs.” Thus, with respect to Baze’s “substantial risk of
serious harm” prong, Appellants argue that using midazolam as the first drug
creates a serious risk that they will be subjected to the intolerable pain the
administration of rocuronium bromide and potassium chloride will cause.
15
With respect to the requirement that they plead and prove the existence of a
readily available and implementable alternative protocol that would significantly
reduce that risk, they argue that “a single bolus of [compounded] pentobarbital . . .
is the most common method of execution in the United States”; thus, it is “read[ily]
available, and would entirely reduce the risk of pain associated with administering
the paralytic and potassium chloride, because those drugs would not be used.”
Alternatively, they argue that sodium thiopental is available and “would cause
death without need of a paralytic or potassium chloride.” Finally, as a third
alternative, Appellants argue that “a 500mg dose of midazolam will likely cause
death in under an hour,” and, as evidenced by its adoption of midazolam as the first
drug in its protocol, the ADOC “can obtain midazolam.”14
Here, if proven true, the facts Appellants allege would satisfy Baze’s two-
prong standard. First, if midazolam fails to render them insensate, the severe pain
caused by the second and third drugs would represent the “substantial risk of
serious harm” the first prong contemplates. Baze, 553 U.S. at 53, 128 S. Ct. at
1533 (noting “[i]t is uncontested that” failure to “render the prisoner unconscious”
14
The ADOC argues that this Court must, in this appeal, adopt the District Court’s
findings regarding the “true nature” of Smith’s complaint. But if we were required to adopt
those findings from Smith, we would also be required to adopt the District Court’s findings
regarding a single-bolus midazolam protocol’s availability and effectiveness as an alternative
execution method. In the order immediately preceding the dispositive order that dismissed
Smith’s complaint, the Court observed that “the parties all agree that (1) midazolam is available,
(2) it is feasible, (3) it is readily implementable, and (4) it is not risky with regard to unnecessary
pain and suffering.” Simply put, the ADOC cannot have it both ways with respect to Smith’s
relevance to this appeal.
16
would create “a substantial, constitutionally unacceptable risk of suffocation from
the administration of pancuronium bromide and pain from the injection of
potassium chloride”). Second, accepting their allegations as true for purposes of
the motion to dismiss, each of Appellants’ three proposed alternatives would be
obtainable by the ADOC and would completely eliminate the risk of suffocation
and pain the second and third drugs create. This would satisfy Baze’s second
prong. Thus, the Complaint states a claim sufficient to survive a Rule 12(b)(6)
motion to dismiss.
That, however, is not the end of the inquiry. Nor is it the basis upon which
the District Court dismissed Appellants’ cases. A complaint must also be
dismissed if it is time-barred under the applicable statute of limitations. Claims
like Appellants’ brought under 42 U.S.C. § 1983 are subject to “the statute of
limitations governing personal injury actions in the state where the § 1983 action
has been brought.” McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). Thus,
in this case, Alabama’s two-year limitations period for personal injury actions
applies. See Ala. Code. § 6-2-38(j) (“All actions for any injury to the person . . . of
another . . . must be brought within two years.”); McNair, 515 F.3d at 1173
(explaining that an Eighth Amendment method-of-execution claim brought by a
death row inmate in Alabama under § 1983 is subject to a “governing limitations
period [of] two years” ).
17
An Eighth Amendment method-of-execution claim “accrues on the later of
the date on which state review is complete, or the date on which the capital litigant
becomes subject to a new or substantially changed execution protocol.” McNair,
515 F.3d at 1174. Although we have never articulated what precisely constitutes a
“substantial change” in a given execution protocol, we have explained that a
change must “significantly alter the method of execution” to qualify as
“substantial.” Gissendaner v. Comm’r, Ga. Dept. of Corr., 779 F.3d 1275, 1282
(11th Cir. 2015) (per curiam). Determining whether a significant alteration to a
state’s execution protocol has been made is “a fact-dependent inquiry” that
requires careful consideration of the specific allegations and evidence presented by
the plaintiff in each case. Arthur v. Thomas, 674 F.3d 1257, 1260 (11th Cir. 2012)
(per curiam).
Thus, we must decide whether the District Court erred in concluding that
Appellants’ challenge was actually a “general challenge” to the State’s three-drug
lethal injection protocol, notwithstanding which drug is used as the first drug. All
Appellants but Borden filed their complaints in April 2016; Borden filed his
complaint on September 7, 2016. Alabama substituted midazolam for pentobarbital
on September 10, 2014, while the State adopted lethal injection, by way of a three-
drug protocol, on July 1, 2002. Hence, if Appellants challenge the State’s three-
drug protocol generally, the Complaint is barred. On the other hand, if they
18
“really” challenge only the use of midazolam as the first drug, it isn’t. We thus
review the Complaint to determine the “true” nature of Appellants’ challenge.
We first observe that we are not constrained to follow Smith’s acceptance of
the ADOC’s interpretation of the Complaint as a general challenge to the State’s
three-drug protocol. We explain above and in Frazier why the law-of-the-case
doctrine is inapplicable in this instance. Smith fares no better as pure precedent.
The case was not published and therefore is not binding precedent. See, e.g.,
United States v. Manella, 86 F.3d 201, 204 (11th Cir. 1996) (per curiam).
Moreover, although an unpublished opinion may serve as persuasive
authority, we are not persuaded to give our imprimatur to the proposition that a
plaintiff is required to respond to an adversary’s interpretation of his complaint in
order to survive a Rule 12 (b)(6) motion to dismiss when the complaint plainly
alleges a claim for relief in accordance with Federal Rule of Civil Procedure 8(a).
In Smith, although Smith’s complaint focused consistently on midazolam’s
alleged ineffectiveness, the ADOC argued his challenge bespoke an ulterior
motive: to renew an otherwise time-barred “general challenge” to Alabama’s three-
drug protocol. The ADOC argued,
Plaintiffs make no secret that their complaints seek to address the
dangers created by the risk of using three-drug protocols, not the
dangers of midazolam. Specifically, Plaintiffs seek to end Alabama’s
use of paralytic and cardiac-arresting agents, regardless of the first
drug administered during the lethal injection process. . . . [I]t is clear
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from the beginning to the end of their complaint, Plaintiffs’ challenge
concerns a three-drug protocol generally, not midazolam specifically.
The District Court accepted that argument, basing its adoption of the
ADOC’s reading of Smith’s complaint on the fact that all of Smith’s proposed
alternatives consisted of single-drug protocols, instead of the State’s prior three-
drug protocols using either sodium thiopental or pentobarbital. In its view, those
“one-drug protocol proposals strip[ped] away the veneer from Smith’s claim” to
reveal “its true identity.” Smith, 221 F. Supp. at 1334. The Court explained,
The fact that Smith does not propose that the ADOC be required to
return to its use of sodium thiopental or pentobarbital as the first drug
administered in a three-drug protocol is significant because it reveals
the true nature of his Eighth Amendment claim: Smith is challenging
the three-drug, lethal-injection execution protocol, regardless of the
first drug administered, as being unconstitutional. In effect, he is
challenging the last two drugs, not the first: not sodium thiopental, not
pentobarbital, not midazolam.
Id. at 1333. Thus, the Court concluded, Smith’s “midazolam argument is a
smokescreen, diverting attention from the fact that his Eighth Amendment claim
challenging the ADOC’s three-drug, lethal-injection protocol is time-barred.” Id.
Next, the District Court observed that Smith “d[id] not address Defendants’
contention that his claim, in actuality, is a challenge against the use of any three-
drug execution protocol.” Id. at 1334. Accordingly, the Court concluded that
Smith’s true claim was such a challenge, which “accrued long ago” and was long
since “time-barred.” Id.
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By disregarding the allegations that appeared on the face of Smith’s
complaint and instead basing its dismissal on only the sufficiency of what it and
the ADOC deemed “the true nature” of his complaint, the District Court effectively
reshaped Smith’s complaint into a different claim altogether. It did so despite the
fact that the original complaint directly challenged midazolam’s ability to render
the prisoner insensate prior to administration of the second and third drugs in the
protocol. Then, the Court treated what it viewed as a failure by Smith to
adequately respond to those arguments as a default on that issue. Such a response
is not required to survive a Rule 12(b)(6) motion to dismiss. Rule 8, which sets
forth the requirements of an adequate pleading, requires in relevant part that a
sufficient complaint must contain “a short and plain statement of the grounds for
the court’s jurisdiction,” “a short and plain statement of the claim showing that the
pleader is entitled for relief,” and “a demand for relief sought.” Fed. R. Civ. P.
8(a). What it does not require is a response by the pleader to arguments made by
an opposing party based on that party’s subjective interpretation of the pleader’s
complaint.
Thus, we review Appellants’ Complaint anew. And we are convinced by
that review that the Complaint in fact challenges the State’s substitution of
midazolam for pentobarbital as the first drug in its three-drug protocol. From
cover to cover, the Complaint trains specifically on midazolam’s alleged inability
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to properly function as an anesthetic. In the Complaint’s second paragraph,
Appellants allege that midazolam is “a sedative with no analgesic properties” that
will “create[] an illusion of adequate anesthesia.” Appellants go on to allege that
“midazolam[] is a benzodiazepine, not a barbiturate like pentobarbital”; as such,
“[m]idazolam is not designed for use as the sole drug in anesthesia, but as an
anesthetic adjunct.” The Complaint then sums up its allegations concerning
midazolam’s ineffectiveness thusly:
Because of the way midazolam works in the human body, it could
sedate an individual to the point where he was incapable of
communicating that he was in pain while doing nothing to suppress
the experience of pain. Because midazolam is a sedative and not an
analgesic, there is a high likelihood that an inmate who receives a
high dose of midazolam would be unable to respond to the noxious
stimuli that constitute the ADOC’s consciousness check, but would
still feel the excruciating effects of the second and third drugs.
Fairly read, then, the crux of Appellants’ Eighth Amendment claim is simply
that “[u]sing midazolam in conjunction with a paralytic and potassium chloride
violates Baze, Furman, and any evolving standards of decency.” Put simply, the
challenge at issue was a specific challenge to the ADOC’s use of midazolam in its
execution protocol.
The alternative execution methods Appellants proffered in the Complaint do
not change the specific nature of the challenge. The ADOC argues that because all
three of Appellants’ proposed alternatives involve single-drug protocols, their
specific challenge to midazolam is in truth a general attack on Alabama’s
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continued use of its three-drug lethal injection protocol. The logical conclusion of
this argument is that a prisoner challenging the use of a particular drug in a three-
drug protocol must propose only a procedure keeping the three-drug protocol intact
in order to avoid having his complaint styled as a “general challenge.” The District
Court agreed, stating, “to comply with Glossip, [Smith] would be required to
propose an alternative drug(s), such as sodium thiopental or pentobarbital, to be
used as the first drug in the ADOC’s three-drug protocol, essentially a return to the
ADOC’s pre-midazolam protocol.” Smith, 221 F. Supp. at 1334 (emphasis added).
Not so. A prisoner must meet two prongs. First, he must show that (1) the
challenged protocol presents a “substantial risk of serious harm.” Baze, 553 U.S.
at 50, 128 S. Ct. at 1531 (quotations omitted) (quoting Farmer, 511 U.S. at 842,
846, and n. 9, 114 S. Ct. at 1970). Second, he must show that the alternatives he
has proffered will “significantly reduce” that risk and are “feasible” and “readily
implement[able].” Id. at 52, 128 S. Ct. at 1532. Whether those alternatives consist
of one drug, two drugs, three drugs, or no drugs is irrelevant. And where, as here,
the statute of limitations would bar a general challenge to a three-drug lethal
injection protocol, the prisoner must additionally show that the substitution of one
drug for another represents a “substantial change” in protocol. Gissendaner, 779
F.3d at 1282. Nothing more or less is required. That the challenger’s proposed
alternatives all employ a single-drug protocol does not transform a specific
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challenge to one drug’s use in a three-drug protocol into a general challenge to
three-drug protocols in all their various and sundry combinations.
Because the Complaint alleges facts that, if proven true, would satisfy both
prongs of the Baze standard, we hold that the District Court erred in concluding
that Appellants’ claim was time-barred.
III.
Accordingly, we reverse the District Court’s dismissal of Appellants’
complaint. The case is remanded for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
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