WILLIAM H. STEELE, District Judge.
This matter comes before the Court on sua sponte review of the court file. Late in the afternoon of May 16, 2017, plaintiff, Thomas D. Arthur, filed a Complaint (doc. 1) and an Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction and Request for an Emergency Hearing (doc. 5) in this District Court.
This brand-new action is not Arthur's first § 1983 challenge to the State's execution protocols, nor his second or even his third. It is his fourth. On November 2, 2016, the Eleventh Circuit Court of Appeals documented Arthur's protracted history of § 1983 method-of-execution litigation in the federal courts as follows:
Arthur v. Commissioner, Alabama Department of Corrections, 840 F.3d 1268, 1272 (11
In his third § 1983 method-of-execution case, the one that was pending for five years while extensive discovery occurred and that culminated in a two-day trial, Arthur "raised an Eighth Amendment claim, alleging that the ADOC's use of midazolam as the first drug creates a substantial risk of serious harm because . . . there is a high likelihood that midazolam will fail to render [him] insensate from the excruciatingly painful and agonizing effects of the second and third drugs." Id. at 1276 (citations omitted).
Upon scrutiny of plaintiff's filings, the Court finds that Arthur's Complaint is procedurally improper and is therefore due to be dismissed for at least two independent reasons.
First, the present claims are barred by the doctrine of res judicata. It is well-settled, of course, that "a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action." In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11
There can be no reasonable dispute that the first three elements of res judicata are satisfied here. After all, Arthur's prior § 1983 action in the Middle District of Alabama attacking the constitutionality of the State's use of midazolam as the first drug in its execution protocol was litigated to a final judgment on the merits before a court of competent jurisdiction, and included substantially identical parties to the present matter. Anticipating the res judicata defense, Arthur posits that the same cause of action is not at issue in both cases. (Doc. 6, at 14-15.) The Court disagrees. To be sure, Arthur is attempting to bring what he characterizes as a different Eighth Amendment claim against the State's use of a midazolam-based execution protocol in this case than the Eighth Amendment claim he directed at that same protocol in the 2011-2016 litigation in the Middle District of Alabama.
Arthur insists that there is a different "nucleus of operative fact" in this case because his previous Eighth Amendment method-of-execution challenge "was dismissed before the Smith execution and other operative facts and events" (doc. 6, at 14), as documented in the pleading he filed yesterday. Arthur's present Complaint purports to rely on the State's execution of Ronald Bert Smith, Jr., on December 8, 2016 using the midazolam-based protocol. According to the Complaint, after midazolam was injected, Smith moved his head and limbs, coughed, attempted to speak, reacted to an arm pinch, and opened his eyes. (Doc. 1, ¶ 4.) Arthur's Complaint also cites evidence that Arkansas implemented a similar protocol in carrying out the execution of Kenneth D. Williams several weeks ago, and that Williams coughed and jerked after being injected with midazolam. (Id., ¶ 6.) According to the Complaint, unspecified "[a]dditional recent executions in other states using midazolam have similarly resulted in painful deaths." (Id.) The Complaint alleges that "[a]s a result of these executions, the ADOC now has actual knowledge that its protocol is likely to produce an agonizing execution — and yet it intends to execute Arthur using the same protocol." (Id., ¶ 7.) Thus, Arthur's contention is that res judicata does not apply because his Complaint in this case is relying on these new, previously unavailable facts about executions post-dating the dismissal of his previous § 1983 complaint challenging Alabama's execution protocol on Eighth Amendment grounds.
The fundamental defect in plaintiff's attempt to circumvent the preclusive effect of res judicata is that there is nothing new or different about these "new" factual allegations. To the contrary, Arthur and other inmates have long been filing pleadings in § 1983 method-of-execution challenges citing factual allegations relating to "botched executions" where midazolam has purportedly not had the anticipated or expected anesthetic effect of rendering the inmate unconscious. For example, in the Third Amended Complaint he filed in the Middle District of Alabama on October 13, 2015, Arthur set forth in some detail factual allegations that "[f]our recent executions demonstrate that . . . midazolam will fail to anesthetize adequately the inmate." (Case 2:11-cv-00438-WKW-TFM, M.D. Ala., doc. 267, at ¶ 103.) In that 2015 pleading, Arthur documented the following allegations: (i) in October 2013, Florida executed William Happ with a midazolam-based protocol, but Happ "made an unusual number of body movements after being administered with midazolam" (id., ¶ 104); (ii) in January 2014, Ohio executed Dennis McGuire, who "struggled, made guttural noises, gasped for air and choked" for 10 minutes after being injected with midazolam (id., ¶ 105); (iii) in April 2014, Oklahoma executed Clayton Lockett, who "began to writhe and gasp" and said "oh, man" after being injected with midazolam (id., ¶ 106); and (iv) in July 2014, Arizona executed Joseph Wood, who "gasped for air over 600 times" after being injected with midazolam (id., ¶ 107).
The "other executions" factual allegations in Arthur's present Complaint are of similar substance and tenor as those set forth in the pleadings of his prior method-of-execution lawsuit in the Middle District of Alabama. Arthur does not identify anything different about the Smith execution, the Williams execution, or the unspecified "[a]dditional recent executions in other states using midazolam" in terms of the effects of the drug on the inmate, the observed reactions or movements of the inmate, the result of the execution and the like. To the contrary, the purportedly "botched executions" giving rise to Arthur's current Complaint are simply more of the same, a continuation of substantially similar factual allegations set forth in his pleadings in his previous Eighth Amendment challenge to Alabama's method of execution. As such, the Court readily concludes that the factual predicate of the two actions is factually indistinguishable, such that Arthur could have raised his "intent"-based Eighth Amendment theory in the prior action. The same cause of action is involved in both cases. Arthur could have raised his Eighth Amendment "intent" theory in his prior method-of-execution lawsuit. As such, the claims presented in his current complaint are barred by res judicata.
Second, Arthur's present Complaint is procedurally improper under laches and specialized equitable principles. Arthur commenced this action at the close of business on May 16, 2017, a scant nine days before his scheduled execution date of May 25, 2017. His Complaint did not reach the undersigned's desk until the afternoon of May 17, 2017. He asks for this Court to "order an expedited briefing schedule," conduct "an evidentiary hearing," and "[e]njoin Defendants from executing Mr. Arthur with inadequate anesthesia and execution procedures that violate Mr. Arthur's right to be free from cruel and unusual punishment." (Docs. 5 & 6.)
The Eleventh Circuit has taken a dim view of such last-minute strategic filings made by death-row inmates on the eve of execution, given their obvious ulterior motive of delaying the execution. See, e.g., Grayson v. Allen, 491 F.3d 1318, 1326 (11
Here, Arthur has not even attempted to overcome the strong presumption against the granting of equitable relief in these circumstances. He could have brought this particular action challenging Alabama's lethal injection protocol years ago, or at least no later than the Brooks execution in January 2016. He could have litigated his claim that the State intends to inflict gratuitous pain on him as part and parcel of his previous § 1983 method-of-execution lawsuit in the Middle District of Alabama from 2011 through 2016. Yet he did not. Instead, Arthur waited until barely a week before his scheduled execution date to assert this claim as part of a brand new § 1983 lawsuit, his fourth method-of-execution challenge in the last decade. Under these circumstances, the Court perceives no possible justification for Arthur's failure to bring this particular challenge earlier to allow sufficient time for full adjudication on the merits of his claim. Arthur bears sole responsibility for this unreasonable, unnecessary and inexcusable delay in bringing suit, which prevents his method-of-execution claim from being adjudicated without granting a stay of execution. He has not carried his burden to plead facts that might plausibly demonstrate entitlement to equitable relief under the facts and circumstances of this case. Therefore, even if this action were not barred by res judicata (which it is), dismissal would remain appropriate because of Arthur's unnecessary and unreasonable delay in filing his Complaint.
For all of the foregoing reasons, the Complaint is
DONE and ORDERED.