TJOFLAT, Circuit Judge.
On July 1, 2002, the State of Alabama chose lethal injection, rather than electrocution, as its preferred method of implementing capital punishment.
Id. at 44, 128 S. Ct. at 1527 (internal citations omitted).
On April 26, 2011, Alabama substituted pentobarbital, "a short-acting barbiturate" sedative,
In the four cases at hand, the appellants, four 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.
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 and will consequently fail to create the sustained state of anesthesia necessary to enable them to withstand the intolerable pain that will be generated by subsequent injections of rocuronium
Before us for review is the District Court's order of October 31, 2016, granting the ADOC's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Appellants ask that we vacate the judgment because the District Court, rather than determining whether the ADOC had satisfied its Rule 56 burden of showing that there was "no genuine dispute as to any material fact," improperly assumed the role of the trier of fact and resolved the genuine factual disputes in the ADOC's favor.
After hearing from the parties in oral argument and considering their briefs, we conclude that genuine issues of material fact preclude summary judgment. We also conclude that Appellants' Eighth Amendment claims are not barred by the law-of-the-case doctrine. As to the ADOC's limitations argument, they did not raise it below and the District Court did not consider it; we thus cannot address it in the absence of a factual determination as to whether the substitution of midazolam for pentobarbital constitutes a substantial change to Alabama's execution protocol. We accordingly vacate the District Court's judgment and remand these cases for further proceedings.
The operative complaints and answers in these cases are identical with respect to
Frazier's Complaint, filed on August 25, 2016, alleges — with respect to Baze's "substantial risk of serious harm" prong — that midazolam will fail to anesthetize Frazier and therefore subject him to the intolerable pain the administration of rocuronium bromide and potassium chloride will cause.
In addition to this statement of Frazier's Eighth Amendment claim, the Complaint also includes facts 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. These unnecessary assertions of fact include: that midazolam administered in a multi-drug protocol previously failed to anesthetize prisoners executed in Ohio,
The ADOC moved to dismiss Frazier's complaint on September 8, 2015. See Consent to Judgment or in the Alternative, Motion to Dismiss at 1, Frazier v. Myers, No. 2:13-cv-781 (M.D. Ala. Sept. 8, 2015).
Id. at 10.
The ADOC further argued that Frazier's claim had been "time-barred for nearly eleven years" and was thus "due to be dismissed." Id. at 5. Noting that Alabama's two-year limitations period applied to Frazier's claim, it observed that the limitations period begins to accrue either when state review becomes final or when a state makes a substantial change to its execution protocol, whichever is later. Id. at 6. And since Frazier's case became final in 2000 and the State adopted lethal injection as its execution method in 2002, it argued that Frazier's case was time-barred unless a substantial change in its execution protocol was made. It then asserted that no such change was made: with respect to the substitution of midazolam for pentobarbital, the ADOC contended that "Frazier failed to plead any factual allegations or include any affidavits with his complaint that could plausibly show that the use of midazolam is a significant change from pentobarbital." Id. at 6-7. Further, it argued that because "the Supreme Court has rejected virtually identical claims about midazolam's effectiveness," and because "the factual allegations rejected in Glossip contained much greater detail and specificity than the hypothesized, unsubstantiated allegations" in Frazier's complaint, Frazier could not claim that the substitution of midazolam constituted a substantial change "as a matter of law." Id. at 7. Thus,
Assuming that the Complaint may have stated a plausible Eighth Amendment claim, the ADOC posited an alternative disposition: it would consent to the Court's entry of a judgment that "suspends the current lethal-injection protocol" and substitutes midazolam as the method of execution. Id. at 4.
The District Court ordered Frazier to respond to the ADOC's pleading by September 25, 2015. Order at 1, Frazier v. Myers, No. 2:13-cv-781 (M.D. Ala. Sept. 11, 2015). Frazier did so on that day. See Opposition to Defendants' "Consent to Judgment" and Motion to Dismiss at 1, Frazier v. Myers, No. 2:13-cv-781 (M.D. Ala. Sept. 25, 2015). He requested that the Court "reject the ADOC's offer of a consent judgment, deny Defendants' motion to dismiss, and issue a scheduling order for motions, hearings and discovery, leading to a trial on the issue of whether Alabama's present execution protocol is unconstitutional." Id. at 2.
On October 8, 2015, the District Court denied the ADOC's motion to dismiss, ordered the ADOC to answer Frazier's Complaint by October 22, 2015, declared that Appellants' cases would be referred to as the "Midazolam Litigation," and scheduled a status conference in the Midazolam Litigation for November 4, 2015, to discuss whether the Court should consolidate the cases for discovery and the final hearing and to determine whether the issues the cases presented differed from those pending in Arthur that would be tried in January 2016. Order at 1-2, Frazier v. Myers, No. 2:13-cv-781 (M.D. Ala. Oct. 8, 2015).
The ADOC answered the Complaint as ordered. The answer responded to the Complaint paragraph by paragraph and denied the material allegations of Frazier's Eighth Amendment claim, including the allegation that two of the drugs included in Frazier's proposed alternative method of execution, sodium thiopental and compounded pentobarbital, were available. The answer admitted that midazolam was available and stated that the "Defendants have agreed to provide Frazier with an execution utilizing a single drug, midazolam, as set forth in his complaint." The answer also asserted eighteen affirmative defenses, including that Frazier's Eighth Amendment claim "fail[ed] to state a claim for relief," was "barred by sovereign immunity," and was "barred by res judicata."
Arthur was tried to the District Court on January 12 and 13, 2016. See Arthur, 840 F.3d at 1278. The evidence before the Court consisted mainly of the testimony and documents introduced during the evidentiary hearing on October 18 and 19, 2012 and deposition testimony taken during discovery conducted after that hearing. See Arthur v. Dunn, No. 2:11-cv-438, 2016 WL 1551475 (M.D. Ala. Apr. 15, 2016), aff'd sub nom., Arthur v. Comm'r, Ala. Dep't. of Corr., 840 F.3d 1268 (11th Cir. 2016). The District Court rendered its decision on April 15, 2016. In its findings of fact,
On February 26, 2016, while the decision in Arthur was still pending, the ADOC moved the District Court for summary judgment on Appellant's Eighth Amendment claims in the Midazolam Litigation. On March 16, the Court granted the parties' joint motion to extend the discovery deadline to April 5. On April 15, Appellants responded to the ADOC's motion for summary judgment.
The trial scheduled for April 19-22, 2016 did not take place.
The District Court reached this conclusion with respect to Appellants' proposed single-drug protocol based on the testimony of the ADOC's General Counsel, Anne Adams Hill.
In Part III, we conclude that the District Court's resolution of credibility issues and its weighing of the evidence requires the vacation of its summary judgment. In Part IV, we consider and reject as meritless the ADOC's arguments that Appellants' Eighth Amendment claims were both untimely and barred by the law-of-the-case doctrine. Part V relates to the proceedings on remand.
"Under Rule 56(c), summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "The movant has the burden of showing that there is no genuine issue of fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether to grant summary judgment, a district court "`may not weigh conflicting evidence or make credibility determinations.'" Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (citing FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011)). With these principles in hand, we turn to the District Court's summary disposition of Appellant's Eighth Amendment claims based on its determination that none of the three alternative modes of execution, single-drug protocols consisting of compounded pentobarbital, sodium thiopental or midazolam respectiviely, satisfies Glossip's requirement that such alternatives be "feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain." Glossip, 135 S.Ct. at 2737. We begin with compounded pentobarbital.
The District Court began its discussion about the availability of compounded pentobarbital by harkening back to the findings of fact and conclusions of law it made following the Arthur trial. The Court recalled that it had found that "the ADOC's supply of commercially manufactured pentobarbital, Nembutal®, expired around November 2013," and that "compounded pentobarbital" was unavailable to the ADOC as an alternative single-drug protocol.
In finding compounding pentobarbital unavailable, the Court had to resolve the conflicting testimony of Gaylen M. Zentner, Ph.D, a pharmacist,
Dr. Zentner testified that "pentobarbital sodium for injection is listed in the FDA Orange Book, a publication containing all approved drugs in the United States," and because no active patents covered the product, "anyone who has the ingredients can make pentobarbital sodium." Id. at *5. He performed an internet search for the drug and found a company that in its products list identified the drug as available for purchase in the United States. Id. at *6. He also noted that "there are overseas suppliers of pentobarbital sodium and that pentobarbital sodium could be produced by drug synthesis labs in the United States." Id. As for compounding pharmacies in Alabama, Dr. Zentner "testified that he searched the website of the Accreditation Commission for Health Care (ACHC) for accredited compounding pharmacies" and identified nineteen within the State. Id.
Dr. Zentner also indicated that the ADOC should be able to obtain compounded pentobarbital from sources outside of Alabama, opining,
Id. (quoting Dr. Zentner). The District Court seemed skeptical.
Id. (quoting Dr. Zentner). Despite its apparent skepticism, the Court still found Dr. Zentner's testimony "credible." Id. at *7.
In Arthur, Hill testified as "the ADOC's party representative." Id. In the Memorandum Opinion and Order here under review, the Court reiterated its description of her testimony in Arthur.
In passing on the ADOC's motion for summary judgment, the District Court, relying on Hill's Arthur testimony, adopted the facts depicted in paragraphs 8-10 above and examined the record for evidence indicating that at some time between the conclusion of the Arthur trial on January 13, 2016, and the date the Court took the ADOC's motion under submission,
In an effort to show that the drug was available, Appellants relied on "the report and testimony of their expert, Deborah L. Elder, Pharm. D," a "Clinical Associate Professor in the Pharmaceutical and Biomedical Department in the College of Pharmacy at the University of Georgia" who was certified "in compounding" under Georgia law.
The Court found Dr. Elder's report and testimony unhelpful to Appellants' cause because, at the end of the day, she was unable to "identify any pharmacist or supplier who could provide compounded pentobarbital to the ADOC." The Complaint's representations that other states were able to obtain the drug was also unhelpful to Appellants in establishing that the drug was available to the ADOC. The Court found it "inconsequential" that in several states "since January 1, 2014, nearly forty executions had been performed `using a single large dose of pentobarbital.'"
The Complaint, which was filed on August 25, 2015, alleges that "a single bolus of [compounded] pentobarbital ... is read[ily] available" to the ADOC. The District Court, adopting findings of fact it made in Arthur,
In precluding Appellants from challenging its Arthur finding that compounded pentobarbital was unavailable to the ADOC prior to January 13, 2016, the District Court did not identify the principle of law it was invoking. The Court apparently had two doctrines in mind: issue preclusion and judicial notice.
Issue preclusion comes into play when:
Baloco v. Drummond Co., 767 F.3d 1229, 1251 (11th Cir. 2014).
Issue preclusion, like claim preclusion, is an affirmative defense under
The ADOC could not rely on issue preclusion for two reasons. First, it failed to plead the doctrine as an affirmative defense. The ADOC filed its answer to the Complaint on October 22, 2015, and could not have pled the defense because it was not available. Arthur had not been decided. See Arthur, 2016 WL 1551475, at *1. After Arthur was decided on April 15, 2016, the ADOC could have sought leave to amend its answer, but did not.
Second, the defense was not available to the ADOC because the parties in Arthur and Appellants' cases were not "the same," and Arthur and Appellants were not in privity, i.e., no exceptions to the rule against nonparty preclusion applied to make Arthur binding in Appellants' cases. The general rule, set forth long ago by the Supreme Court, states that "[a] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Martin v. Wilks, 490 U.S. 755, 762, 109 S.Ct. 2180, 2184, 104 L.Ed.2d 835 (1989) (footnote omitted). Six exceptions to this rule have been recognized:
Griswold v. Cty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010) (citing Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 2172-73, 171 L.Ed.2d 155 (2008)). Collectively, these exceptions are commonly described using the catchall term "privity." E.g., Taylor, 553 U.S. at 895 n.8, 128 S.Ct. at 2172 n.8.
None of those exceptions apply here. Nothing in the record indicates — and the District Court did not find or imply — that Appellants consented to be bound by Arthur's resolution, had any legal relationship with Arthur, were represented by him in any capacity, or had any control over his claim. Nor is there any suggestion Arthur was attempting to relitigate his claim by using Appellants as proxies. And no statute prevents successive nonparty litigation in this context. Arthur can therefore have no preclusive effect in Appellants' cases.
Nor could the District Court rely on judicial notice to make its findings in Arthur conclusive in Appellants' cases. A district court may take judicial notice of an adjudicative fact
Whether compounded pentobarbital was feasible and "readily available" to the ADOC as a single-drug protocol was a factual issue in Arthur.
Putting aside the doctrines of issue preclusion and judicial notice and disregarding the Arthur findings of fact, the question becomes whether the record before the Court reveals a genuine factual dispute regarding the availability of compounded pentobarbital. When we place the evidence proffered by the Appellants and the ADOC on the two sides of the scale, we find a factual dispute the Court could not resolve on summary judgment.
On Appellants' side are the facts that since January 1, 2014, forty-two executions had been carried out using a one-drug pentobarbital protocol,
On the ADOC's side are these facts. On January 12, 2016, while testifying in the Arthur trial, Hill revealed that in 2015, Georgia, Missouri, Texas, and Virginia performed executions using compounded pentobarbital.
Hill testified she contacted "at least twenty-nine potential sources" of compounded pentobarbital, inquiring whether they could provide the ADOC with the drug. Of those sources, eighteen consisted of the accredited compounding pharmacies in Alabama. She reported that none of these sources were able to provide the ADOC with the drug. Hill did not specifically identify any of the sources she contacted, or provide any details regarding the conversations she had with potential suppliers of compounded pentobarbital. What she did say was that all of her efforts failed.
Notwithstanding the lack of specificity provided by Hill's testimony, the District Court found it credible and, moreover, that it conclusively "rebutted Arthur's allegation that compounded pentobarbital was an available alternative." Whether her testimony was credible and whether it tipped the scale in the ADOC's favor was a matter for a trier of fact. See Strickland v. Norfolk Southern Ry. Co., 692 F.3d 1151, 1162 (11th Cir. 2012) (holding that when credibility is at issue "summary judgment is simply improper"); Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (explaining "[i]t is not the court's role to weigh conflicting evidence or to make credibility determinations;
Therefore, a factfinder could reasonably infer that her efforts to find a new pentobarbital source reflected her or her superiors' doubts about midazolam's effectiveness in eliminating pain potassium chloride could cause during executions. Of course, other inferences from Hill's testimony could be drawn, and that is precisely why her testimony should be been submitted to the trier of fact rather than treated as conclusive on summary judgment.
When we consider the District Court's reliance on findings of fact it made in Arthur and its determination of the credibility of critical testimony, the conclusion is inescapable that the Court erred in holding that Appellants failed to create an issue of fact as to whether the ADOC could obtain compounded pentobarbital.
In Arthur, the District Court made the following findings of fact regarding the availability of sodium thiopental to the ADOC:
Arthur, 2016 WL 1551475, at *9. Based on these findings the Court reached the following conclusion of law:
Id. at *10.
In granting the ADOC's motion for summary judgment on the availability of sodium thiopental in the Midazolam Litigation, the District Court considered whether the evidence Appellants presented in opposition to the motion was sufficient to overcome the findings of fact it made in resolving the issue in Arthur. The Court determined that the evidence was insufficient.
In resolving the sodium thiopental issues, the District Court committed the same error it made in resolving the compounded pentobarbital issues. It relied on its Arthur findings as if it were invoking the doctrines of issue preclusion or judicial notice and, at summary judgment, weighed those findings against the evidence presented in the case before it. As we have explained, neither doctrine justifies such reliance in this context.
In Arthur, whether the ADOC could obtain sodium thiopental was disputed. The Court resolved the dispute by weighing the testimony of Dr. Zentner
Id. at *7. Hill, as the ADOC's general counsel, was "responsible for developing, proposing, and maintaining the ADOC's execution protocol." Id. at 8. But she was not "the final decision and policymaker concerning the ADOC's execution protocol." Id. Instead, "the final decision maker [was] the ADOC's Commissioner." Id.
The Court also found Hill's testimony credible. Id. We assume that the Court found each witness's testimony probative of the availability or unavailability of sodium thiopental; otherwise, the District Court would have had no need to make a credibility determination. Thus, in deciding whether sodium thiopental was available to the ADOC, the Court must have weighed the testimonies of the two witnesses who spoke to the issue, Hill and Dr. Zentner. Dr. Zentner was a pharmacist, an "independent consultant to the pharmaceutical industry." Id. at 4. Hill was not. Dr. Zentner testified that sodium thiopental was available offshore and conceivably could be imported even though it was no longer listed in the FDA Orange Book. Id. at 6. Hill testified that after the ADOC adopted the current protocol, she "made no effort to obtain sodium thiopental and no effort to determine if it could be legally imported." Id. at *7. Nonetheless, she testified that, "to her knowledge," the drug was not available in the United States. Id.
In its findings of fact, the Court found — on the basis of Dr. Zentner's testimony — that "sodium thiopental may be available from an overseas supplier" and "conceivably" importable. Id. at *9. Hill's testimony did not negate that fact.
The procedural posture of this case demands a different outcome because trial courts are expressly forbidden from engaging in this type of evidentiary weighing. See, e.g., Mize, 93 F.3d at 742 (noting that at summary judgment, "[i]t is not the court's role to weigh conflicting evidence"). Thus, the District Court erred in resolving the dispute over the availability of sodium thiopental by judging the credibility of the witnesses' testimony and then weighing that testimony, along with the other evidence in the record, to decide the ultimate fact — the availability of sodium thiopental. See Jones, 683 F.3d at 1292 ("If the record presents disputed issues of fact, the court may not decide them; rather, we must deny the motion and proceed to trial.") (alteration omitted) (quoting FindWhat Investor Grp., 658 F.3d at 1307). For that reason, the District Court's determination that there was no genuine issue of material fact regarding the unavailability of sodium thiopental was erroneous and must be set aside.
Whether the use of midazolam in a single-drug protocol satisfied Baze's feasible-alternative standard was not before the District Court in Arthur. The District Court therefore resolved the issue without reference to its Arthur decision.
Frazier's Complaint expresses Appellants' alternative proposal as "a single dose of midazolam." The Complaint states that, according to the finding of a federal district court in Oklahoma, "a 500mg dose of midazolam will likely cause death in under an hour."
According to the deposition testimony of Randall Tackett, Ph.D,
Based on this testimony, the Court concluded that
The District Court reached this dispositive conclusion after assessing the credibility of Dr. Tackett's testimony and then weighing it against the contrary evidence the record presented, including testimony by the ADOC's expert, Dr. Daniel Buffington, a clinical pharmacologist and faculty member at the University of South Florida Colleges of Medicine and Pharmacy and the President and Practice Director for Clinicial Pharmacology Services in Tampa, Florida. Although Dr. Buffington's testimony was in the record, the Court overlooked it.
In addition to Dr. Buffington's testimony, the Court overlooked statements the ADOC made in its motion to dismiss Frazier's complaint. See Frazier v. Myers, No. 2:13-cv-00781 (M.D. Ala. Sept. 25, 2015).
The ADOC represented that it made this proposal in reliance on Frazier's attorney's Rule 11 affirmation in good faith that he had "a factual basis to believe" that the use of midazolam in a single-drug execution protocol would result in a "constitutionally acceptable" execution. Id. at 3. In relying on the attorney's affirmation, was the ADOC implying that an execution protocol consisting of a 500-milligram dose of midazolam with additional doses provided as needed would potentially violate the Eighth Amendment? Put another way, would the ADOC induce the Court to enter a consent decree that might yield a constitutional violation? The answer to each of those questions must be "no."
The District Court's error in determining the credibility of Dr. Tackett's testimony and ignoring Dr. Buffington's testimony, which was at odds with Dr. Tackett's, and the significance of the ADOC's offer to substitute a single-drug protocol containing midazolam for its current three-drug protocol require vacation of the summary judgment. Whether that proposal would "significantly reduce a substantial risk of harm," as Baze requires, cannot be determined in a vacuum. The Court first must determine what risk of harm, if any, the current three-drug protocol creates.
The ADOC further argues that the District Court's judgment should be affirmed under the law-of-the-case doctrine. That 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) (quoting Dorsey v. Continental Casualty Co., 730 F.2d 675, 678 (11th Cir.1984)). Accordingly, "[a]n appellate decision on an issue must be followed ... unless the presentation of new evidence or an intervening change in the controlling law dictates a different result, or the appellate decision is
The ADOC points out (1) that this Court, in Brooks v. Warden (Brooks), 810 F.3d 812 (11th Cir. 2016), and subsequently in Grayson v. Warden (Smith), 672 Fed.Appx. 956 (11th Cir. 2016),
Given these circumstances, the ADOC argues (3) that all of the cases are one case, i.e., the same case; (4) that because the appeals in Brooks and Smith were taken in that one case, the Brooks and Smith decisions — specifically their holdings — are binding on the proceedings in this appeal; (5) that Brooks and/or Smith effectively held that the Frazier Complaint failed to allege sufficiently that the current three-drug injection protocol presents a substantial risk of serious harm; assuming it presents such harm, that the protocol does not amount to a significant alteration of the previous protocol (using pentobarbital as the first drug) so as to affect a substantial change in the State's method of execution and restart the statute of limitations clock; and (7) that the evidence in the summary judgment record was insufficient as a matter of law to establish that a single-drug protocol consisting of compounded pentobarbital, sodium thiopental, or midazolam was a feasible and readily available alternative execution protocol. Thus, the ADOC argues, Appellants' challenge to the three-drug protocol's Eighth Amendment sufficiency is now precluded.
We are not persuaded that the Brooks and/or Smith holdings mandate that we affirm the District Court's judgment on the law-of-the-case doctrine. Two independent bases inform our conclusion. First, the cases making up the Midazolam Litigation are not one case; hence, the doctrine is inapplicable. Second, even assuming that they are one case, neither Brooks nor Smith mandates rejection of Appellants' claims, because those cases did not address the same issue raised in this case.
We first consider whether Brooks or Smith's holdings control our decision, in whole or in part, in this appeal on the theory that Appellants' cases and Brooks and Smith's cases are one and the same. A review of how Brooks and Smith were processed below makes it clear that neither case is one case with Appellants' cases. We begin with Brooks.
On September 24, 2015, the State moved the Alabama Supreme Court to set Christopher Eugene Brooks' execution date.
On November 23, 2015, the Alabama Supreme Court entered an order scheduling Brooks' execution for January 21, 2016. On the same day, the District Court granted Brooks' motion for leave to intervene. Brooks filed his complaint the next day.
On December 1, 2015, the ADOC moved the District Court to dismiss Brooks' complaint for failure to state a claim and, alternatively, offered to substitute an increased dosage of midazolam as a single-drug protocol in place of the current protocol for Brooks' execution.
On December 4, 2015, the ADOC filed its one-drug midazolam protocol under seal, Brooks moved the District Court to stay his execution, and the Court entered an order scheduling an evidentiary hearing on the motion for December 18, which would continue through the week of December 21, 2015 if necessary. The order noticed a prehearing conference scheduled for December 15 — at which time the parties would identify their witnesses, scientific reports and other exhibits — and required the parties to submit to the Court on December 18, prior to the commencement of the evidentiary hearing, proposed findings of fact and conclusions of law.
On December 8, Brooks filed separately an opposition to the ADOC's motion to dismiss, and a response to the ADOC's submission of the substitute midazolam protocol. The response contended that the substitute protocol was a "legal nullity unless and until the present protocol is found unconstitutional, or Defendants eliminate the present three-drug protocol and adopt a single drug protocol using any of the feasible options that Brooks suggested."
On December 11, 2015, the ADOC responded to Brooks' motion to stay his execution. It contended that the motion should be denied because Brooks had delayed in bringing it and because he was not likely
On December 14, 2014, Brooks requested the Court to issue subpoenas summoning four witnesses to appear at the evidentiary hearing: Jefferson S. Dunn, Anne Hill, Walter Myers and Kim Tobias Thomas. That same day, the ADOC informed the Court that the Alabama Supreme Court had denied Brooks' application for a stay of his execution. And, also on the same day, the Court entered an order informing the parties that it would resolve Brooks' motion for a stay "in the absence of a hearing," cancelling the prehearing conference scheduled for December 15 and the evidentiary hearing that was to begin on December 18, and declaring "moot" Brooks' request for subpoenas.
On December 22, 2015, the District Court issued a memorandum opinion and order denying Brooks' motion for a stay. The Court explained that it denied the stay because Brooks failed to "demonstrate a substantial likelihood of success on the merits," he "unreasonably delayed filing suit," and the "balance of the equities did not lie in [his] favor for a stay." We affirmed the District Court's denial of his motion for a stay on January 19, 2016. Brooks v. Warden, 810 F.3d 812, 816 (11th Cir. 2016).
It is clear from this series of events that Brooks' case is affiliated with Appellants' cases for only one reason: the Court granted Brooks' motion to "intervene" in Appellants' cases. After the motion was granted, Brooks' case followed one route, while Appellants' cases followed another. Further, the District Court's decision in Appellants' cases was based on an extensive evidentiary record. In contrast, and contrary to the ADOC's representation, the Court decided Brooks' motion for a stay "in the absence of a hearing" or a proffer of probative evidence.
In sum, Brooks' case and Appellants' cases were not one case. Whatever our Brooks decision may have held, its holdings can dictate no part of the decision we reach in this appeal.
We now turn to Smith. On February 2, 2016, the State moved the Alabama Supreme Court to set a date for the execution of Ronald Bert Smith. On April 15, 2016, after discovery had closed in Appellants' cases and just four days before Appellants' cases were set to be tried, Smith filed a complaint against the ADOC.
Attached to Smith's complaint were nine exhibits, A through I.
On April 28, 2016, thirteen days after Smith filed his complaint, the District Court entered an order granting the parties'
The order contained the requested scheduling order, which set the time frames for filing a motion to dismiss, for discovery in the event a motion to dismiss was denied, and for summary judgment.
On September 14, 2016, the Alabama Supreme Court granted the State's motion to set Smith's execution date and scheduled the execution for December 8, 2016. Smith did not respond by moving the Alabama Supreme Court or the District Court to stay the execution. Nothing occurred until November 9, 2016, when 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 explained:
The Court therefore ordered the ADOC to submit to the Court for "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." The ADOC's reply to Smith's showing was due on November 18, 2016.
Smith responded to the show-cause order as directed, with this penultimate statement:
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."
On receiving the ADOC's reply to Smith's response to its order to show cause, the Court took two steps, both on November 18. First, realizing that Smith and the ADOC had reached an impasse, the Court entered an order abandoning further consideration of the midazolam alternative.
Id. at 1334 (internal citation omitted). The Court observed that "Smith could have challenged the ADOC's use of a three-drug protocol any time after it was implemented fourteen years ago on July 31, 2002, but he failed to do so until 2016." Id. at 1333. Smith appealed the District Court's decision to this Court on the same day, November 18. On December 7, 2016, we affirmed the District Court's decision. Grayson v. Warden, 672 Fed.Appx. 956, 958 (11th Cir. 2016).
In granting the ADOC's motion to dismiss, the District Court made it clear that its Memorandum Opinion and Order applied only to Smith's case.
Notwithstanding that the District Court's decision only applied to Smith's case, the ADOC now represents to this Court that Smith's challenge to its execution protocol was "virtually identical" to Appellants' in that both challenges were "based on the same evidence and allegations."
Put simply, it cannot reasonably be argued that Smith's case and Appellants' cases were one case such that any issue we decided in disposing of Smith's appeal should have a binding effect on our disposition of this appeal under the law-of-the-case doctrine.
Assuming that we are wrong in concluding that Brooks and Smith's cases are not "the same case" as Appellants' cases, our decisions in those two cases do not preclude Appellants' claims unless those prior decisions decided the same issues Appellants now raise. The law-of-the-case doctrine "bars consideration of only those legal issues that were actually, or by necessary implication, decided in the former proceeding." Jackson v. State of Ala. State Tenure Comm'n, 405 F.3d 1276, 1283 (11th Cir. 2005) (quoting Oladeinde v. City of Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000)). We therefore consider sequentially what our decisions in Brooks and Smith held and whether those holdings should have a bearing on our disposition of this appeal.
The question before this Court in Brooks was whether the District Court abused its discretion in denying Brooks' application for a stay of his execution. Brooks, 810 F.3d at 816. "A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous." Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004) (quoting Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1336 (11th Cir. 2002)). The legal standard governing the District Court's disposition of Brooks' motion for a stay of his execution is settled law:
Brooks, 810 F.3d at 818 (emphasis added) (quoting Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011)).
The District Court denied Brooks' application for a stay on two independent grounds. First, Brooks failed to establish a substantial likelihood of success on the merits of his Eighth Amendment claim.
The first ground presents a mixed question of fact and law.
In the second step, the court considers the evidence the prisoner has proffered in support of his claim and finds whatever facts the evidence establishes.
In Brooks, in addition to establishing that the current three-drug protocol created "a substantial risk of serious harm," Baze, 553 U.S. at 50, 128 S.Ct. at 1520, the prisoner had to demonstrate that the substitution of midazolam for pentobarbital as the first drug in the protocol constituted a "substantial change" in the State's method of execution; otherwise, his claim was time-barred. Whether he carried that burden was a factual determination. We reviewed the District Court's finding that he failed to carry that burden for clear error.
We consider first the holdings the Brooks Court reached in affirming the District Court's decision that Brooks failed to establish a substantial likelihood of success on the merits of his Eighth Amendment claim. After that, we consider the holdings the panel reached in affirming the District Court's finding that Brooks failed to proffer any evidence that would establish a substantial likelihood that the substitution of midazolam for pentobarbital affected a "substantial change" in the State's method
The Brooks panel assumed that the District Court, in taking the first step in deciding the likelihood-of-success issue, concluded that Brooks' statement of his Eighth Amendment claim satisfied the Baze standard
Id. at 819.
The Court agreed with the District Court that Brooks proffered nothing to suggest he was likely to succeed at trial under the Baze standard. As for the risk of pain the current protocol allegedly created, "[o]n this record, [the Court concluded that] Brooks has not established a substantial likelihood that the State's lethal injection protocol creates a `demonstrated risk of severe pain.'"
As for the single-drug protocol of compounded pentobarbital, sodium thiopental, or midazolam Brooks proposed as an alternative method of execution, the panel concluded that Brooks had not shown a substantial
In concluding that the District Court had not abused its discretion in deciding that Brooks had not established a likelihood of success, the Court made it clear that its decision was based solely on the record presented:
Id. at 822 (emphasis added).
Additionally, the District Court found as a fact that Brooks failed to proffer any evidence demonstrating that it was substantially likely that the substitution of midazolam for pentobarbital affected a substantial change in the State's method of execution. The finding served as an alternative ground for concluding that Brooks failed to establish the first factor of the stay test, a substantial likelihood of success on the merits.
To make the requisite showing, Brooks had to present the District Court with some evidence. Mere allegations were insufficient. But Brooks presented nothing. We therefore affirmed the Court's finding:
Id. (emphasis added).
This language is not a holding that Brooks' complaint failed to allege that the substitution of midazolam for pentobarbital in the three-drug protocol did not affect a substantial change in the State's method of execution. Rather, it represents an implicit holding that the District Court did clearly err in finding, based on Brooks' nonexistent proffer, that Brooks had not demonstrated a likelihood that the substitution affected a substantial change.
In sum, we concluded that the District Court did not abuse its discretion in finding that Brooks failed to demonstrate a substantial likelihood he would succeed on the merits. Our conclusion was based solely on the insufficiency of Brooks' proffer. His proffer did not present evidence sufficient to demonstrate he was likely to meet both prongs of the Baze standard, and it failed to present any evidence whatsoever that the substitution of midazolam for pentobarbital constituted a substantial change in protocol and thus reset the statute of limitations clock. For both of those reasons, we held that the District Court did not abuse its discretion in denying Brooks' motion for a stay. That is the law of the case.
The ADOC agrees that no abuse of discretion occurred, but disagrees that that holding is the only law of the case.
But Brooks cannot perform that dual service, because our decision did not address either of those issues. The decision — that a District Court did not abuse its discretion in denying an eleventh-hour stay motion accompanied by a proffer devoid of probative evidence — has absolutely no law-of-the-case implications in reviewing a later summary judgment motion decided on the sufficiency of evidence actually
We now turn to Smith. That decision was not published; therefore, the decision is not precedent. Nonetheless, assuming that Smith and Appellants' cases are one, Smith's holdings are binding to the extent they adjudicated issues involved in this appeal. But we did not adjudicate any such issues in Smith. To begin, the District Court made it unambiguously clear that it decided Smith's case only. Although the ADOC's motion to dismiss addressed Smith's case and the cases of four other plaintiffs who filed suit at the same time, the District Court expressly stated that its decision applied only to Smith's case.
Moreover, Smith reviewed a complaint unlike the complaints in Appellants' cases. The ADOC read Smith's complaint as "a general challenge to three-drug protocols, which could have been raised at any time after Alabama began using a three-drug protocol in its executions in 2002 and was thus barred by the applicable two-year statute of limitations." Grayson v. Warden (Smith), 672 Fed.Appx. 956, 961 (11th Cir. 2016). We observed that Smith did not address the ADOC's interpretation "that his claim, in actuality, is a challenge against the use of any three drug execution protocol," Grayson v. Dunn, 221 F.Supp.3d 1329, 1334 (M.D. Ala. 2016), so the District Court effectively adopted it.
We thus affirmed the Court's decision:
Smith, 672 Fed.Appx. at 963. In contrast, Appellants have made no such "general challenge to three-drug protocols" in this case.
In fine, even assuming that Smith's case and Appellants' are one, such that a Smith holding on an issue would bind our decision on the same issue under the law-of-the-case doctrine, the claim Smith advanced — as determined by the District Court in his case — is not the claim Appellants present. The allegations in their complaints challenge the current three-drug protocol as creating a substantial risk of serious harm and propose a feasible and readily available alternative, a single-drug protocol consisting of compounded pentobarbital, sodium thiopental or midazolam.
Like the ADOC's law-of-the-case argument based on Brooks, its argument based on Smith fails as well.
For the foregoing reasons, we vacate the District Court's judgment in all of Appellants' cases and remand the cases for further proceedings.
On remand, the District Court must address Appellants' Eighth Amendment claims in the proper order. The second prong of the Baze standard requires a claimant to show that the protocol he proposes would "significantly reduce a substantial risk of serious harm" in comparison with the current protocol. Baze, 553 U.S. at 52, 128 S.Ct. at 1532. Thus, the District Court cannot properly apply the Baze standard without first making a finding regarding the risk of pain, if any, the current three-drug protocol presents. One cannot evaluate whether an alternative proposal does or does not "significantly reduce" a given risk without first knowing what that risk is. See Brooks, 810 F.3d at 819 ("[C]apital prisoners seeking a stay of execution must show `a likelihood that they can establish both that [the state's] lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.'") (emphasis added) (quoting Baze, 553 U.S. at 61, 128 S.Ct. at 1520). As we see it, the claim here is that midazolam creates a substantial risk of severe pain when compared to the alternatives Appellants submitted. Accordingly, the District Court must first determine what risk the current three-drug protocol — with midazolam as the first drug — presents before considering the adequacy of Appellants' proposed alternatives, especially since it has by now been clearly established that midazolam is available to the State.
In the same vein, the ADOC's answer was hardly paradigmatic of Rule 8's spirit or letter. Its answer contained eighteen
If, in the proceedings that follow, Appellants are able to make out a prima facie case of an Eighth Amendment violation, i.e., that midazolam will not render the prisoner insensate such that he will suffer serious harm from the administration of the paralytic and potassium chloride, the District Court will have to determine whether any of the ADOC's "avoidance" defenses preclude the relief Appellants seek.
Thus, in our view, in order to move forward with pleadings that comport with the spirit and letter of Rule 8, the District Court should summon the parties to a pre-trial conference for the purpose of shaping the issues for trial. There, the Court can strike from Appellants' complaints the extraneous information we have cited and require the ADOC to explain the bases of each of its avoidance defenses. The Court's first order of business, though, should be to address the ADOC's sovereign immunity defense. In asserting this defense as an absolute bar to Appellants' claim, the ADOC "certified" among other things that the defense was "warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." Fed. R. Civ. P. 11(b)(2). The Court should therefore require the ADOC to explain the basis of the defense or withdraw it.
Whether the ADOC's use of midazolam as the first drug in its execution protocol will render the prisoner insensate prior to the administration of the second and third drugs will require the presentation of expert opinion testimony. We assume that Appellants' counsel is prepared to present such testimony, and that the ADOC is prepared to rebut it with expert opinion testimony of its own. At the pre-trial conference, the Court should require the parties to proffer this expert testimony. Any dispute as to the qualifications of a witness or the reliability of a witness's opinion should be resolved by the Court in performing its gatekeeping function under Daubert.
VACATED AND REMANDED WITH INSTRUCTION.
Exhibit B consists of 179 pages and contains the testimony of: Mark Dershwitz, M.D., anesthesiologist, and Ph.D., pharmacology, and Srikumaran K. Melethil, Ph.D. (pharmacokinetics), J.D.
Fed. R. Civ. P. 8(a). Rule 8 does not contain an evidence requirement.
Although the ADOC raised all of these items as affirmative defenses, many were actually simple denials or objections to the sufficiency of Frazier's claim. Rule 8(c) provides that "a party must affirmatively state any avoidance or affirmative defense." Fed. R. Civ. P. 8(c). Of the eighteen claims the ADOC raised, only eight were avoidance or affirmative defenses. Those were letters A, B, C, F, G, I, K, and N above. Letters D, E, and H addressed alleged insufficiencies in the complaint. Finally, letters J, L, M, O, Q, P, and R were simply denials that should not have been raised as defenses.
The ADOC offered the testimony to prove the truth of the matter asserted: compounded pentobarbital was unavailable. Not only was the testimony hearsay on its face, it contained the hearsay of individuals Hill said she contacted in an effort to obtain the drug. Their statements were implicit in Hill's statement that her efforts to obtain the drug from those contacted or from their sources "failed." The contacts' statements were, for example, that they would not identify their sources of compounded pentobarbital or would not provide the ADOC with a portion of their supply of the drug.
Appellants did not move the Court to strike Hill's testimony as hearsay, and we find no objection to its admissibility in Appellants' submission to the Court in opposition to the ADOC's motion for summary judgement.
Fed. R. Civ. P. 201.
Assistant Public Defender Spencer Jay Hahn signed Smith's complaint as his attorney. The complaint was one of five Hahn filed between April 15 and 18, 2016, on behalf of prisoners awaiting execution. Those prisoners were Charles Lee Burton, Robert Bryant Melson, Geoffrey Todd West and Twane McNabb. The five cases were effectively processed as one case until the Alabama Supreme Court set the date for Smith's execution. From that point going forward, the District Court handled Smith's case separately. For this reason, in the discussion that follows, we refer only to Smith's case — from the time of its filing on April 15, 2016, to its conclusion with the entry of final judgment on November 18, 2016.
The time frames for summary judgment motions were as follows: 21 days from the end of the 30-day limited discovery period, 21 days for the response, and seven days for a reply.
Brooks, 810 F.3d at 819. Regarding the sodium thiopental option,
Id. at 820. As for the midazolam option,
Id. at 821.
Grayson v. Dunn, 221 F.Supp.3d 1329, 1334 (M.D. Ala. 2016).
