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Grayson v. Dunn

United States District Court, M.D. Alabama, Northern Division

March 31, 2017

CAREY DALE GRAYSON, Plaintiff,
v.
JEFFERSON S. DUNN, et al., Defendants. and, CHARLES LEE BURTON, RONALD BERT SMITH, ROBERT BRYANT MELSON, GEOFFREY TODD WEST, TORREY TWANE MCNABB, Plaintiffs,
v.
JEFFERSON S. DUNN, et al., Defendants. and, JEFFERY LYNN BORDEN, Plaintiff,
v.
JEFFERSON S. DUNN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiffs Charles Lee Burton, Robert Bryant Melson, Geoffrey Todd West, Torrey Twane McNabb, and Jeffery Lynn Borden are Alabama death-row inmates, in the custody of the Alabama Department of Corrections (“ADOC”) awaiting their executions.[1] In April 2016, Burton, Melson, West, McNabb, and another death-row inmate, Ronald Bert Smith, filed separate complaints under 42 U.S.C. § 1983 challenging the constitutionality of Alabama's method-of-execution under the First, Eighth, and Fourteenth Amendments to the United States Constitution. Their complaints contain identical claims and involve questions of fact and law common to the Midazolam Litigation. The court consolidated the Burton, Smith[2], Melson, West, and McNabb complaints with the Midazolam Litigation for discovery and trial in order to promote judicial economy, eliminate duplication of discovery, and avoid unnecessary costs. (See Doc. # 153.) In September 2016, Borden filed a complaint virtually identical to the Burton, Smith, Melson, West, and McNabb complaints. His complaint, too, has been consolidated with the Midazolam Litigation. (Doc. # 233.)

         This matter is before the court on two motions: (1) Defendants' Consolidated Motion to Dismiss Intervenor Plaintiffs' Complaints[3] (Doc. # 160), and (2) Plaintiffs' Motion for Leave to File Amended Complaints (Doc. # 231 in Grayson v. Dunn, 2:12cv316-WKW, and Doc. # 15 in Borden v. Dunn, 2:16cv733-WKW.) These motions have been fully briefed and are ripe for review. Plaintiffs' Motion for Leave to File Amended Complaints is due to be denied, and Defendants' Consolidated Motion to Dismiss is due to be granted.

         A. Consolidated Plaintiffs' Capital Litigation History

         Consolidated Plaintiffs all have been convicted of capital murder and sentenced to death. Burton was convicted of capital murder committed during the course of a robbery after he and others robbed the occupants of an auto parts store in which a customer was shot dead. Burton v. State, 651 So.2d 641, 643 (Ala.Crim.App.1993). McNabb was convicted of two counts of capital murder for killing a Montgomery Police Officer, Anderson Gordon, who was murdered while on duty. McNabb v. State, 887 So.2d 929, 939 (Ala.Crim.App.2001). Melson was convicted of two counts of capital murder of two or more persons committed during a robbery; he and his codefendant forced the employees of a Popeye's Restaurant into the restaurant's freezer, where they were shot dead. Melson v. State, 775 So.2d 857, 863 (Ala.Crim.App.1999). West was convicted of capital murder for murder committed during the course of a robbery in which he shot and killed a gas station attendant. West v. State, 793 So.2d 870, 873 (Ala.Crim.App.2000). Borden was convicted of two counts of capital murder and sentenced to death in 1995 for killing Cheryl Borden, his estranged wife, and her father, Roland Harris, on Christmas Eve 1993. Borden v. State, 711 So.2d 498 (Ala.Crim.App.1997).

         Consolidated Plaintiffs' direct appeals concluded many years ago, [4] and their state post-conviction and federal habeas proceedings have also been concluded for at least a year.[5]

         B. Consolidated Plaintiffs' Claims

         Consolidated Plaintiffs' complaints are nearly identical; the only differences in their complaints concern the factual backgrounds of their capital offenses and their individual litigation histories. They assert the same three causes of action: two Eighth Amendment claims and a right-of-access to the court claim they label as arising under the First, Eighth, and Fourteenth Amendments.

         Their first cause of action is an Eighth Amendment claim challenging the ADOC's current execution protocol, alleging that the ADOC's use of midazolam, the first drug to be administered, is unconstitutional. Specifically, they assert that midazolam will not properly anesthetize them to prevent them from feeling an unconstitutional level of pain associated with the injection of potassium chloride, the third drug. On this premise, they claim that Defendants' current execution protocol creates a “substantial risk of serious harm, ” Baze v. Rees, 553 U.S. at 50, and violates their right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Instead of midazolam used in a three-drug, lethal injection protocol, Consolidated Plaintiffs propose three alternative methods of execution, using either pentobarbital, sodium thiopental, or a 500-milligram dose of midazolam in a one-drug, lethal injection protocol.

         In their second cause of action, Consolidated Plaintiffs challenge that part of the ADOC's execution protocol known as the consciousness assessment. They claim that it is inadequate to ensure that they are sufficiently anesthetized prior to being injected with the remaining two drugs, which creates a substantial risk of unconstitutional pain, in violation of the Eighth Amendment.

         Consolidated Plaintiffs' third cause of action is that their right to meaningful access to the courts requires their counsel, as a witness to their executions, have access to a cellular phone or a landline telephone until their executions are complete. They contend that the ADOC's policy prohibiting phone access to their counsel during their executions denies them that right, in violation of the First, Eighth, and Fourteenth Amendments.

         II. DISCUSSION

         A. Defendants' Consolidated Motion to Dismiss

         Defendants have moved to dismiss Consolidated Plaintiffs' complaints in toto, pursuant to Federal Rule of Civil Procedure 12(b)(6), for three independent reasons: (1) these complaints are subject to dismissal at this juncture, without trial, because it is clear from the face of the complaints that all three claims are time-barred; (2) all three claims fail to state a claim for which relief can be granted; and (3) because Consolidated Plaintiffs ...


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