United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
action came before the Court for a non-jury trial on December
12, 2016. On September 14, 2016, the Court ordered:
In the interest of efficiency and to conserve the resources
of the parties and Court, the issues to be tried will be
bifurcated. The trial commencing on December 12, 2016 will
address only one issue: the availability of an alternative
method of execution to the State's current execution
protocol. If Plaintiff meets his burden to prove an
alternative method of execution that is readily available,
the Court will then consider in the second phase of the trial
(on a date to be set after the conclusion of the first phase)
the remainder of the issues, including, but not limited to:
(1) whether the use of midazolam presents a risk that is sure
or very likely to cause serious illness and needless
suffering, and give rise to sufficiently imminent dangers;
(2) if so, whether the alternative method of execution
designated by Plaintiff is feasible, readily implemented, and
in fact significantly reduces a substantial risk of severe
pain; and (3) whether the switch from pentobarbital to
midazolam in September of 2014 was a substantial change in
the execution protocol so as to reset the statute of
(Doc. 81 at 1-2). Upon consideration of the arguments and
evidence presented at trial, the parties' pre-trial
briefs (Docs. 55, 56, 68, 71, 72, 76, 78, and
and all other pertinent portions of the record, the Court
makes the following findings of fact and conclusions of law.
Background and Findings of Fact
February 5, 1993, Plaintiff Christopher Lee Price
(“Price”) was convicted of capital felony murder
of William Lynn, a minister in the small town of Fayette
County, Alabama, that occurred during the course of a robbery
at Lynn's home. The Alabama state court's decision in
Price's direct criminal appeal contains a detailed
description of the facts. See Price v. State, 725
So.2d 1003, 1011-12 (Ala.Crim.App.1997). Price's
conviction and sentence became final on May 24, 1999. See
Price v. Alabama, 526 U.S. 1133 (1999)(cert.
denied). Price is currently on death row at Holman
Correctional Facility in Atmore, Alabama.
2002, the Alabama Department of Corrections
(“ADOC”) began using a three drug protocol as its
default method of execution by lethal injection. (Doc. 32 at
6; Doc. 43 at 3).From 2002 through 2013, ADOC used either
sodium thiopental or pentobarbital as the first drug in the
three-drug protocol. (Doc. 32 at 7). On September 10, 2014,
ADOC amended its lethal injection protocol to substitute
midazolam hydrochloride in place of pentobarbital as the
first drug in its three-drug lethal injection protocol. (Doc.
32 at 7; Doc. 43 at 4). On September 11, 2014, the State of
Alabama asked the Alabama Supreme Court to set Price's
execution date. (Doc. 32 at 2; Doc. 43 at 1)
September 2014, when ADOC amended its three-drug lethal
injection protocol, it was unable to obtain manufactured
pentobarbital. (Doc. 55-4 at 2; Doc. 32 at 8-9). Though
manufactured pentobarbital became unavailable for use in
lethal injections, some states obtained compounded
pentobarbital for use in executions. (Doc. 105 at 13).
Georgia, Missouri, Texas, and Virginia have used compounded
pentobarbital for lethal injections since 2014.
October 8, 2014, Price filed his original complaint in this
matter, seeking a preliminary injunction prohibiting the
State from executing him under its amended protocol. (Doc.
1). Price was permitted leave to amend his complaint (Docs.
18 and 31), and this case is now proceeding under Price's
Amended Complaint (Doc. 32). In his Amended Complaint, citing
28 U.S.C. § 1983, Price requests that this Court enjoin
Defendants from executing him using the lethal injection
protocol adopted by the State on September 10, 2014, on the
grounds that the use of midazolam hydrochloride as the first
drug will violate his right to be free from cruel and unusual
punishment under the Eighth Amendment. (See
generally Doc. 32).
February 19, 2016, Defendants filed a Motion for Summary
Judgment contending that Price cannot prove the required
elements of his Eighth Amendment claim. (Doc. 55). This Court
entered an order withholding ruling on Defendants' motion
until after the close of discovery. (Doc. 62). After
discovery closed, both parties filed additional briefs.
(Docs. 68, 71, 72, 76, 78, and 79). The Court denied
Defendants' Motion for Summary Judgment, set the case for
a bifurcated non-jury trial, and converted the summary
judgment briefs to pre-trial briefs. (Doc. 81).
December 12, 2016, this action proceeded to a non-jury trial
on the sole issue of the availability of an alternative
method of execution to the State's current execution
protocol. At trial, ADOC General Counsel Ann Adams Hill
(“Hill”), who is the ADOC employee responsible
for procuring drugs for use in lethal injections, testified
about her efforts to obtain either compounded pentobarbital
or a source for the drug. (Doc. 105 at 5-6). In the fall of
2015, Hill contacted the departments of corrections for the
states of Georgia, Texas, Virginia, and Missouri in an
attempt to obtain compounded pentobarbital or a source for
the drug. (Doc. 105 at 14-16). This effort was unproductive.
In December 2015, Hill contacted 18 compounding pharmacies
within Alabama in effort to obtain compounded pentobarbital,
but none were willing or able to provide the drug. (Doc. 105
at 31, 38-39). Hill has not attempted to contact
compounding pharmacies in any other state and has not tried
to contact the previously contacted Alabama compounding
pharmacies since December 2015. (Doc. 105 at 31).
the fall of 2015 and immediately prior to trial, ADOC has
continued to seek out a supplier for compounded
pentobarbital. (Doc. 105 at 26-27). Specifically, Hill has
reached out to the departments of corrections of Missouri,
Texas, Georgia, and Virginia in the “few weeks”
prior to trial to inquire whether they would provide
compounded pentobarbital to ADOC or give her information
concerning the suppliers. (Doc. 105 at 15, 26-27). These
efforts were unsuccessful. (Id.). Hill did not ask
the state officials to pass along her information to their
suppliers to see whether the suppliers were interested in
providing compounded pentobarbital to ADOC. (Doc. 105 at 27).
action, Price seeks redress for an alleged constitutional
deprivation pursuant to 42 U.S.C. ...