United States District Court, S.D. Alabama, Southern Division
KRISTI K. DuBOSE, District Judge.
This matter is before the Court on Plaintiff Christopher Price's Motion for Leave to Amend Complaint (Doc. 19), the Defendants' objection (Doc. 26), and Price's response (Doc. 29). Upon consideration, Price's motion to amend the complaint is GRANTED IN PART and DENIED IN PART. Price is ORDERED to file an amended complaint on or before August 6, 2015 in compliance with this Order.
I. Plaintiff's Eighth Amendment Claim
Price contends that his proposed amended complaint (Doc. 19-1) "includes additional allegations plausibly demonstrating and specifically identifying alternative lethal injection protocols, not utilizing midazolam hydrochloride, that are (1) readily available to the State of Alabama, (2) currently being used by other states that are similarly situated to the State of Alabama, and (3) that, if administered properly, would satisfy Eighth Amendment requirements." (Doc. 19 at 2). The Eleventh Circuit recently explained,
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.'" Chavez, 742 F.3d at 1272 (quoting Baze, 553 U.S. at 50, 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 Baze, 553 U.S. at 50, 52, 61, 128 S.Ct. at 1531-32, 1537) (alteration in Chavez ).
Gissendaner v. Comm'r, Georgia Dep't of Corr., 779 F.3d 1275, 1283 (11th Cir.) cert. denied sub nom. Gissendaner v. Bryson, 135 S.Ct. 1580 (2015). The Supreme Court's recent Glossip v. Gross decision did not alter the two requirements set forth in Baze. Glossip v. Gross, 2015 WL 2473454 at *1 (June 29, 2015). In Glossip, a number of Oklahoma death row inmates filed a 42 U.S.C. § 1983 action claiming Eighth Amendment violations due to Oklahoma's three drug execution protocol. Several of the inmates sought a preliminary injunction, which was denied. Glossip states:
"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The parties agree that this case turns on whether petitioners are able to establish a likelihood of success on the merits.
Glossip at *9. Ultimately, the Court held, inter alia, that the inmates failed to establish a likelihood of success on the merits and the district court's denial of the motion for preliminary injunction was affirmed.
Here, however, Price seeks to amend his complaint, not to obtain a preliminary injunction. The standard for amendment of a complaint differs from that required to obtain a preliminary injunction. With regard to amendment of a complaint, the Eleventh Circuit has held:
Under Federal Rule of Civil Procedure 15(a), a court should give leave to amend freely when justice so requires.' Fed.R.Civ.P. 15(a). Ordinarily, a party must be given at least one opportunity to amend before the district court dismisses the complaint. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). The district court, however, need not allow an amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.' Id.
Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). As none of those reasons are present here, Price's motion to amend the portion of his complaint related to his Eighth Amendment claim is GRANTED. The Court has considered Defendants argument that amendment of Price's Eighth Amendment claims would be futile, but disagrees. (Doc. 26 at 1). Though the Defendants may choose to file a motion to dismiss later in the litigation, at this stage, the Court's only task is to determine whether Price is entitled to amend his complaint.
II. Plaintiff's Fourteenth Amendment Claim
Price seeks to amend his complaint to include a §1983 claim based on alleged violations of his Equal Protection rights guaranteed by the Fourteenth Amendment. "All constitutional claims brought under § 1983 are tort actions, subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought." Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011). In Alabama, that limitations period is two years. Id. Moreover, in method of execution challenges, a "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 v. Allen, 515 F.3d 1168, 1174 (11th Cir.2008).
Price alleges that the State has deviated from its execution protocol in the past by failing to perform a "pinch test." (Doc. 19-1 at 27 "Deviations from the State's lethal injection protocol and the Defendants' failure to adhere to Alabama's purported safeguard to assess consciousness, impermissibly burden Mr. Price's fundamental right to Equal Protection under the Fourteenth Amendment to the U.S. Constitution."). Though Price does not tie his allegations to specific dates of prior to executions, the Defendants note, "Presumably, Price's claim is based on a similar allegation raised by another inmate concerning the June 2011 execution of Eddie Powell." (Doc. 26 ...