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Price v. Dunn

United States District Court, S.D. Alabama, Southern Division

March 15, 2017

CHRISTOPHER LEE PRICE, Plaintiff,
v.
JEFFERSON S. DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, in his official capacity, et al ., Defendants.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This 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 limitations clock.

(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 79)[1], and all other pertinent portions of the record, the Court makes the following findings of fact and conclusions of law.

         I. Background and Findings of Fact[2]

         On 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).[3] Price is currently on death row at Holman Correctional Facility in Atmore, Alabama.

         In 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).[4]From 2002 through 2013, ADOC used either sodium thiopental[5] 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)

         In 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.[6]

         On 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).

         On 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).

         On 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).[7] 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).

         Between 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).

         II. Analysis

         In this action, Price seeks redress for an alleged constitutional deprivation pursuant to 42 U.S.C. ...


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