Case: 15-10797   Date Filed: 03/02/2015   Page: 1 of 19


                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10797
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-00523-TWT



KELLY RENEE GISSENDANER,

                                                            Plaintiff-Appellant,

                                  versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,
OTHER UNKNOWN EMPLOYEES AND AGENTS,
Georgia Department of Corrections,

                                                         Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (March 2, 2015)

Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:
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       Kelly Gissendaner masterminded the brutal murder of her husband, Douglas,

by her paramour, Gregory Owen. See Gissendaner v. State, 

, 681–

83 (Ga. 2000). Facing impending execution by lethal injection, Gissendaner has

filed a 42 U.S.C. § 1983 lawsuit alleging that the State of Georgia’s method of

execution violates the Eighth Amendment’s prohibition on cruel and unusual

punishment. After holding a hearing, the district court denied Gissendaner’s

request for a temporary restraining order and dismissed her complaint for failing to

state a claim for relief. This is her appeal.1

                                  I.      BACKGROUND

       The Superior Court of Gwinnett County issued an order on February 9,

2015, directing the Georgia Department of Corrections to execute Gissendaner.

Her execution is scheduled for March 2, 2015. The week after the order was

issued, Gissendaner filed a 42 U.S.C. § 1983 lawsuit challenging the

constitutionality of Georgia’s lethal injection protocol.

       The latest iteration of Georgia’s written protocol for lethal injections, which

was adopted on July 17, 2012, establishes a detailed procedure for executing a

condemned prisoner. 2 The individuals involved in the execution procedure include

   1
      Gissendaner’s unsuccessful challenges to set aside her conviction and death sentence are set
out in Gissendaner v. Seaboldt, 

(11th Cir. 2013); Gissendaner v. State, 

(Ga. 2000); and Gissendaner v. State, 

(Ga. 1998).
   2
     We omit many of those details because they are not relevant to the issues raised in this
appeal.


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an “IV Team” to establish access to one of the prisoner’s veins, a physician to

provide medical assistance during the process, and an “Injection Team” to deliver

the drugs. The IV Team must include at least two trained personnel, one of whom

must be an IV nurse, and the Injection Team must include three prison staff

members trained to deliver the injections. The protocol calls for the IV Team to

initially attempt to provide two “intravenous accesses” for the injection. 3 If the IV

nurse is unable to identify a suitable vein in the prisoner’s legs or arms, the

physician on hand “will provide access by central venous cannulation or other

medically approved alternative.”4

       Once access to a vein is established, the members of the Injection Team then

administer a series of three injections, one delivered by each team member. The

sequence consists of: (1) an initial 2.5 gram dose of pentobarbital, (2) a second 2.5

gram dose of pentobarbital, and (3) 60 cubic centimeters of saline to flush the IV

line. Regarding the drug used in the first two injections, the protocol specifies only

that it be “pentobarbital.” “If, after a sufficient time for death to have occurred,”

the prisoner “exhibits visible signs of life,” the protocol calls for another five


   3
     Intravenous access means entry to a vein and is typically established with a needle. See
Nelson v. Campbell, 

, 640, 

, 2121 (2004).
   4
     Central venous cannulation is a technique for gaining access to one of the major veins in an
individual’s body, such as the jugular or femoral veins. See generally Jane M. Lavelle &
Andrew T. Costarino, Central Venous Cannulation, in Textbook of Pediatric Emergency
Procedures 247, 247 (Christopher King & Fred M. Henretig eds., 2d ed. 2008)



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grams of pentobarbital to be administered using the same procedure. And if the

prisoner “shows residual signs of life within a reasonable period” of receiving that

second round of injections, the protocol calls for five more grams of pentobarbital

using the same procedure.

      In carrying out its written protocol, Georgia has refused to reveal the source

of its pentobarbital or the identities and qualifications of the individuals who will

participate in the execution process. The State has refused to do so based on what

is called its “lethal injection secrecy act,” which was enacted in March 2013 and

took effect that July. See Ga. Code Ann. § 42-5-36(d). The act extends

“confidential state secret” status to the “identifying information” of the individuals

and entities who are involved in carrying out an execution or supplying the drugs

and other materials used in an execution. See 

that such identifying

information “shall be confidential and shall not be subject to disclosure under [a

state public records request] or under judicial process.” 

1983 complaint contains a series of allegations about

Georgia’s lethal injection protocol and the State’s refusal to reveal certain details

about its execution process. Her principal claim regarding the protocol is that

Georgia’s switch in March 2013 from using FDA-approved pentobarbital to

compounded pentobarbital creates a substantial risk that the drugs used in her




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execution will cause her to suffer unnecessary and excruciating pain.5 She alleges

that the pharmacies that produce compounded pentobarbital are subject to the laxer

monitoring by, and lower standards of, state pharmacy boards, with a resulting risk

that the drugs they produce will lack the “identity, potency, and purity” that is

ensured by FDA monitoring. She supports her allegations with two sets of

documents. The first is an affidavit from Dr. Larry Sasich that describes the

general risks of using compounded pentobarbital. The second is a series of news

stories about three recent executions using compounded pentobarbital — Michael

Lee Wilson in Oklahoma, Jose Luis Villegas in Texas, and Eric Robert in South

Dakota.

       Gissendaner also contends that Georgia obtained its supply of compounded

pentobarbital in violation of both state and federal law. She neither proffers nor

cites any evidence to support this claim. Instead, she argues that Georgia could not

possibly have acquired its compounded pentobarbital without violating state and

federal laws and regulations. For example, she argues that, because the execution

of a prisoner is not a legitimate medical purpose, Georgia has violated the

Controlled Substances Act’s requirements that Schedule II drugs such as

pentobarbital be dispensed only for a “medical purpose,” 21 U.S.C. § 829(c), and
   5
      The terms “FDA-approved pentobarbital” and “compounded pentobarbital” come from the
complaint. The difference between the two, according to the allegations of the complaint, is that
the former is manufactured by a company that is subject to FDA monitoring and standards, while
the latter is produced by a compounding pharmacy that is subject only to state monitoring and
standards.


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pursuant to a “valid prescription” that was “issued for a legitimate medical

purpose,” 

      In addition to Gissendaner’s claims based on compounded pentobarbital, she

also contends that Georgia’s protocol does not ensure that the IV Team is qualified

to establish reliable intravenous access for a prisoner like her — one who is

female, obese, and at risk for obstructive sleep apnea. She bases that contention on

two sets of documents. The first is a series of newspaper stories describing the

executions (and one attempted execution) of three male prisoners in three other

states: Clayton Lockett in Oklahoma, Angel Diaz in Florida, and Romell Broom in

Ohio. According to those news stories, there were complications in all three

instances because of the difficulty of establishing reliable intravenous access for

the prisoners. The second document is an affidavit from Dr. Joel Zivot, which

states his opinion that establishing reliable intravenous access will be especially

difficult in Gissendaner’s case because she is female and obese. It also states his

opinion that Gissendaner’s obesity puts her at risk for sleep apnea, which can

contribute to choking and gasping during an execution.

      Gissendaner also claims that Georgia had aggressively interpreted and

applied its lethal injection secrecy act to prevent her from obtaining the details she

needs to make an Eighth Amendment challenge to the State’s protocol. She




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argues, among other things, that the use of the act is grounds to deny Georgia

officials the presumption of good faith usually afforded to state officials.

      In addition to her allegations about Georgia’s lethal injection protocol,

Gissendaner seeks a stay of her execution based on the Supreme Court’s grant of

certiorari in Glossip v. Gross, No. 14-7955, 574 U.S. —, reported sub nom. Warner

v. Gross, 

, at *1 (Jan. 23, 2015). She argues that the grant of

certiorari is a sign the Court will be reshaping its standard for Eighth Amendment

challenges to lethal injection protocols, and that her execution should be stayed so

that she can challenge Georgia’s protocol under the Court’s new standard,

whatever it turns out to be.

      Georgia filed a motion to dismiss the complaint and deny Gissendaner’s

motion for a temporary restraining order. After holding a hearing on the motions,

the district court issued a written order reasoning that our decision in Wellons v.

Commissioner, Georgia Department of Corrections, 

, 1265 (11th

Cir. 2014), forecloses Gissendaner’s claims because her allegations and evidence

are so similar to those we rejected in Wellons. The district court concluded that

Gissendaner has not demonstrated a substantial likelihood of success on the merits

or stated a claim for relief under the standard established by the Supreme Court in

Baze v. Rees, 

, 50–52 

, 1531–32 (2008) (plurality




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opinion). It denied Gissendaner’s motion for a temporary restraining order,

granted the State’s motion to dismiss, and entered judgment dismissing the action.

      Gissendaner then filed in this Court a timely appeal challenging the district

court’s judgment, and a motion seeking a stay of execution.

                               II.    DISCUSSION

      The standard for granting a temporary restraining order or a stay of

execution is the same. Either action is appropriate only if the moving party

establishes all of the following four elements:

      (1) a substantial likelihood of success on the merits; (2) that the
      preliminary injunction is necessary to prevent irreparable injury;
      (3) that the threatened injury outweighs the harm the preliminary
      injunction would cause the other litigant; and (4) that the preliminary
      injunction would not be averse to the public interest.

(quoting Chavez v. Fla. SP Warden, 

,

1271 (11th Cir. 2014)). We review the district court’s denial of a motion for a

temporary restraining order only for an abuse of discretion. DeYoung v. Owens,

, 1324 n.2 (11th Cir. 2011). We review de novo the grant of a

motion to dismiss, accepting the complaint’s allegations as true and construing

them in the light most favorable to the plaintiff. Powell v. Thomas, 

,

1302 (11th Cir. 2011).




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                                          A.

      The State contends that Gissendaner’s § 1983 complaint is time-barred, and

that the district court therefore did not abuse its discretion in denying her motion

for a temporary restraining order or stay. If a complaint is untimely, it will not

succeed on the merits. Crowe v. Donald, 

, 1293 (11th Cir. 2008).

Though the district court’s order did not address the statute of limitations when

Georgia raised it as a ground for denying Gissendaner’s motion, we may consider

it as a basis for affirming that court’s judgment. See 

;

see also 

(relying on the statute of limitations, instead of

the district court’s actual grounds, because an appellate court may “affirm on any

ground supported by the record”) (quotation marks omitted).

      Like other actions brought under § 1983, a challenge to a state’s method of

execution is subject to the statute of limitations governing personal injury actions

in the state where the challenge was brought. McNair v. Allen, 

,

1173 (11th Cir. 2008). Gissendaner brought her claim in Georgia, which has a

two-year statute of limitations period. 

(citing Ga. Code

Ann. § 9-3-33). A claim challenging the state’s method of execution “accrues on

the later of the date on which” direct review is completed by denial of certiorari,

“or the date on which the capital litigant becomes subject to a new or substantially




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changed execution protocol.” 

. 6 Of course, a claim that

accrues by virtue of a substantial change in a state’s execution protocol is limited

to the particular part of the protocol that changed. See Henyard v. Sec’y, DOC,

, 647–48 (11th Cir. 2008). In other words, a substantial change to one

aspect of a state’s execution protocol does not allow a prisoner whose complaint

would otherwise be time-barred to make a “wholesale challenge” to the State’s

protocol. See 

       Gissendaner’s state review became final in April 2001, see Gissendaner v.

Georgia, 

, 

(2001), and Georgia adopted lethal

injection as its method of execution in October 2001, see 

. So unless Gissendaner’s complaint alleges facts or presents evidence

showing that Georgia’s lethal injection procedure has “substantially changed” in

the twenty-four months before she filed her complaint on February 20, 2015, her

challenge is time-barred. See 

–64; see also Mann v.

Palmer, 

, 1313–14 (11th Cir. 2013) (stating that factual allegations

and evidence attached to the complaint may establish a “substantial change” in an

execution protocol).




   6
     The McNair opinion refers to “the date on which state review is complete,” and that
occurred on October 1, 

–74, which is the date that the Supreme Court
denied certiorari review on direct appeal, 

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       Several of Gissendaner’s claims are untimely because they rely on factual

conditions that have not changed in the past twenty-four months. For example, she

claims that Georgia does not have adequate training and procedures to establish

intravenous access, but she does not identify any change in the past twenty-four

months that Georgia has made either to the prescribed method for establishing

intravenous access or to the requisite qualifications of the individuals on the IV

Team. 7

       The affidavit from Dr. Zivot relies on the July 17, 2012, written protocol,

which had been in place for more than two years before the complaint was filed.

And the news stories regarding recent executions in other states do not establish a

change in Georgia’s protocol because they are not “evidence of how pentobarbital

is actually administered in [Georgia].” Arthur v. Thomas, 

, 1262

(11th Cir. 2012). Similarly, Gissendaner claims that the fact that Georgia’s written

protocol does not make any specific provisions for the proper storage of the

execution drugs creates a risk that the drugs will expire before they are used. But

that claim is based on Dr. Sasich’s reading of Georgia’s written protocol, not on

any facts about Georgia’s recent storage practice or any of the recent executions it



   7
      The risk factors that Gissendaner claims are particular to her execution do not affect the
statute of limitations analysis. She has always been female, and her complaint contains no
factual allegations suggesting that her obesity or her potential sleep apnea (the chance of which
is increased by her obesity) are recent developments.


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has carried out, and the written protocol has been in place since July 17, 2012 —

more than two years before her complaint was filed.

      There are two claims in Gissendaner’s complaint that are based on changes

to Georgia’s lethal injection protocol that occurred in the twenty-four months

before she filed her complaint on February 20, 2015. The first is her claim based

on Georgia’s March 2013 change from using FDA-approved pentobarbital to using

compounded pentobarbital. The second is her claim based on Georgia’s lethal

injection secrecy act, which went into effect in July 2013. See Ga. Code Ann.

§ 42-5-36(d).

      Any argument that these are “substantial changes” is squarely foreclosed by

this Court’s decision in 

–64. In that case, Georgia

inmate Marcus Wellons also contended that the State had substantially changed its

lethal injection protocol by “changing from pentobarbital to a compound

pentobarbital” and by enacting its “lethal injection secrecy act.” 

We

held that (1) “the Georgia Department of Corrections’ anticipated use of an

adulterated pentobarbital does not establish a significant alteration in the method of

execution”; and (2) the complaint had not “alleged facts sufficient to show that

Georgia’s legal [sic] injection procedure has ‘substantially changed’ based on the

lethal injection secrecy act adopted by the Georgia legislature.” 

omitted). Those holdings make good sense. The switch from FDA-



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approved pentobarbital to compounded pentobarbital is not a substantial change

because the switch between two forms of the same drug does not significantly alter

the method of execution. See 

the lethal injection secrecy act, it is not a

change to the protocol itself. The act merely alters how the State responds to

requests for information about executions, which is different from how it carries

out the protocol.

       In any event, Wellons is prior panel precedent that binds us unless

Gissendaner presents facts that are materially different from those presented in

Wellons. See 

–14.8 She has not done that. Indeed, the

affidavit from Dr. Sasich that Gissendaner attaches to her complaint is almost

identical to the affidavit from Dr. Sasich that Wellons attached to his complaint. 9




   8
      Gissendaner quotes language from our decision in Arthur v. Thomas to argue that we
cannot hold that her complaint is untimely unless she is first given an opportunity to seek
discovery in support of her allegations that Georgia has substantially altered its lethal injection
protocol. 

(“[T]he district court committed reversible error in dismissing
Arthur’s Eighth Amendment claim without any opportunity for factual development, including
discovery between the parties.”). Arthur does not, however, stand for such a broad proposition.
As we clarified in Mann, a court may dismiss a complaint as untimely — without an evidentiary
hearing or discovery — if the allegations and evidence presented are “materially the same” as
those presented in a previous case in which the denial of relief was 

–
14.
   9
      The one difference is that the affidavit attached to Gissendaner’s complaint includes Dr.
Sasich’s opinion that there is a risk that the drug used in Gissendaner’s execution may degrade
before her execution date because Georgia’s written protocol does not contain any express
provisions for storing the pentobarbital used in executions. As we have already explained, that
portion of the Sasich affidavit relies on facts that have been in place for more than two years,
which means any claim based on it is untimely.



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         That leaves Gissendaner’s claim that Georgia has acquired its compounded

pentobarbital in violation of federal and state laws. Our decision in Wellons

dictates that this claim is time-barred as well. Wellons held that, given the

similarity in the drugs, the switch from FDA-approved pentobarbital to

compounded pentobarbital was not a substantial change for purposes of the statute

of limitations. 

. Gissendaner’s allegations regarding the

legality of Georgia’s procurement of compounded pentobarbital are just additional

arguments about why the shift from one form of pentobarbital to another is a

substantial change. Wellons already held that it was not a substantial change, and

the new arguments that Gissendaner raises do not make that decision any less

binding. See 

(“[T]he mere act of proffering additional

reasons not expressly considered previously will not open the door to

reconsideration of the [statute of limitations] question by a second panel.”) (second

alteration in original) (quoting Valle v. Singer, 

, 1231 (11th Cir.

2011)).

         All of the claims in Gissendaner’s complaint are untimely, so the district

court did not abuse its discretion in denying her motion for a temporary restraining

order.




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                                           B.

        Alternatively, even if her claims were not barred by the statute of

limitations, Gissendaner would be due no relief because her complaint fails to state

a plausible claim for relief. 10 To succeed in an Eighth Amendment challenge to a

lethal injection protocol, a prisoner “must establish ‘an objectively intolerable risk

of harm that prevents prison officials from pleading that they were subjectively

blameless for purposes of the Eighth Amendment.’” 

(quoting 

, 128 S. Ct. at 1531 (plurality opinion)). That

requires the prisoner to show two things: “(1) the lethal injection protocol in

question creates ‘a substantial risk of serious harm,’ and (2) there are ‘known and

available alternatives’ that are ‘feasible, readily implemented,’ and that will ‘in fact

significantly reduce [the] substantial risk of severe pain.’” Id. (quoting 

, 52, 

–32, 1537) (alteration in Chavez).

        As for the first requirement, Gissendaner’s allegations and supporting

documents — even when viewed in the light most favorable to her — do not

establish the requisite level of risk. As Wellons makes clear, “where an Eighth

Amendment cruel and unusual punishment claim alleges the risk of future harm,

‘the conditions presenting the risk must be sure or very likely to cause serious

   10
       In dismissing Gissendaner’s complaint, the district court also denied her a stay of
execution based on the Supreme Court’s decision to grant certiorari in Glossip, 

. It did not abuse its discretion in doing so. See infra Section II.C.



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illness and needless suffering, and give rise to sufficiently imminent 

(quoting 

, 128 S. Ct. at 1531) (quotation

marks omitted). None of Gissendaner’s factual allegations or evidence present

facts that establish a high level of likelihood that she will suffer serious illness or

needless suffering during her execution.

      As for the second showing, Gissendaner does not even attempt “to show that

any . . . alternative procedure or drug is feasible, readily implemented, and in fact

significantly reduce[s] a substantial risk of severe pain.” 

(alterations in

original) (quotation marks omitted). The allegations of the complaint are totally

bereft of: (1) an alternative drug that would substantially reduce the risks she

identifies with compounded pentobarbital; (2) an alternative means of procuring

that alternative drug; or (3) an alternative method of establishing intravenous

access that would substantially reduce the risks she identifies based on her gender,

obesity, and possible sleep apnea. As a result, the claims based on those aspects of

Georgia’s protocol are fatally flawed — as is the claim based on the lethal

injection secrecy act. In an Eighth Amendment challenge, the source of the drug

and the qualifications of the officials administering it are not relevant “[w]ithout a

plausible allegation of a feasible and more humane alternative.” 

(quoting In re Lombardi, 

, 896 (8th Cir. 2014) (en banc)) (quotation

marks omitted).



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      For those reasons, in addition to being untimely, Gissendaner’s complaint

fails to state a plausible claim for relief. The district court did not err in dismissing

it.

                                           C.

      Like her motion in the district court, Gissendaner’s motion in this Court

asserts that, even if she has not met the Baze standard, she nevertheless is entitled

to a stay of execution because of the Supreme Court’s decision to grant certiorari

in Glossip, 

. She argues that we should stay her execution

because the grant of certiorari indicates that the Court is prepared to modify the

Baze standard, and that modification will affect her prospects for challenging

Georgia’s lethal-injection protocol.

      We rejected a nearly identical argument in Schwab v. Secretary, Department

of Corrections, 

(11th Cir. 2007). There, the district court had

granted the condemned prisoner’s motion for a stay of execution based on the

Supreme Court’s grant of certiorari in Baze. 

We vacated the stay

“because grants of certiorari do not themselves change the law, [and] they must not

be used by courts of this circuit as a basis for granting a stay of execution that

would otherwise be denied.” 

in Schwab is the latest in a long line

of cases refusing to assign precedential significance to grants of certiorari. See,

e.g., Rutherford v. McDonough, 

, 977 (11th Cir. 2006) (“[A] grant of



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certiorari does not change the law.”); Ritter v. Thigpen, 

, 665–66

(11th Cir. 1987) (“A grant of certiorari does not constitute new law.”); Thomas v.

Wainwright, 

, 689 (11th Cir. 1986) (“The grant of the writ of

certiorari . . . is no authority to the contrary; any implications to be drawn

therefrom may be discerned by application to the Supreme Court.”). Until the

Supreme Court issues a decision that actually changes the law, we are duty-bound

to apply this Court’s precedent and to use it and any existing decisions of the

Supreme Court to measure the likelihood of a plaintiff’s success on the merits.

And as we have already explained, this Court’s precedent forecloses her claims.

Section II.B.

      In addition, our determination that Gissendaner’s complaint is untimely, 

Section II.A, means that a decision by the Supreme Court in Glossip is not

likely to affect her chance of success on the merits. A time-barred complaint

cannot justify a stay of execution, regardless of whether its claims have merit. See

; cf. Smith v. Johnson, 

, 263–64 (5th Cir.

2006) (explaining that a pending Supreme Court decision was irrelevant to the

prisoner’s cause of action given that “he is not entitled to the relief he seeks due to

his dilatory filing”); Neville v. Johnson, 

, 223 (5th Cir. 2006)

(applying the same principle).




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        Because Gissendaner has not established a substantial likelihood of success

on the merits, she is not entitled to a stay of execution. See 

.

                               III.   CONCLUSION

        The district court’s order denying Gissendaner’s motion for a preliminary

injunction and dismissing her complaint is AFFIRMED. Gissendaner’s motion

for a stay of execution is DENIED.




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