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Arthur v. Dunn

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

April 12, 2017

THOMAS D. ARTHUR, Plaintiff,
v.
JEFFERSON S. DUNN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff Thomas D. Arthur is an Alabama death-row inmate who is in the custody of the Alabama Department of Corrections (“ADOC”) awaiting his execution.[1] Arthur filed a complaint under 42 U.S.C. § 1983 challenging the ADOC's policy prohibiting an inmate's attorney who is also a designated witness to his execution from having access to a cellular phone and/or a landline telephone during the execution. Arthur claims that this policy abridges his right of access to the courts in violation of the First, Eighth, and Fourteenth Amendments to the United States Constitution. Arthur also claims that Defendants' invocation of Alabama Code § 15-18-83 (1975) to prevent his counsel from acting in a “legal capacity” during his execution violates these same constitutional rights. (Doc. # 1.) Arthur seeks declaratory and injunctive relief.

         This matter is before the court on Defendants' Motion to Dismiss Arthur's complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. # 18.) Defendants' motion is due to be granted.

         II. DEFENDANTS' MOTION TO DISMISS

         Defendants assert that Arthur's complaint should be dismissed at this juncture and without a hearing for three independent reasons: (1) it is clear from the face of the complaint that Arthur's right-of-access claim is time-barred; (2) Arthur fails to state a claim for which relief can be granted; and (3) his complaint is subject to dismissal under the doctrine of laches because Arthur has unreasonably delayed in bringing this claim.

         A. Statute of Limitations

         It is well settled that when the complaint shows on its face that the limitations period has expired, a statute-of-limitations defense may be raised on a motion to dismiss for failure to state a claim for which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). See AVCO Corp. v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir. 1982) (party may seek dismissal based on statute-of-limitations defense pursuant to Rule 12(b)(6)); Mann v. Adams Realty Co., 556 F.2d 288 (5th Cir. 1977).

         Arthur claims that the ADOC's policy prohibiting an inmate's counsel who is witnessing his execution from having access to a cellular phone or a landline telephone during the execution violates his right-of-access to the court under the First, Eighth, and Fourteenth Amendments. (Doc. # 1 at 9-10.) He contends that enforcement of this ADOC policy, in combination with the application of Alabama Code § 15-18-83 (1975) to prohibit his counsel from acting as counsel during an execution, conflicts with his constitutional rights to due process, meaningful access to the courts, and freedom from cruel and unusual punishment, and will leave his counsel unable to contact the courts to seek intervention if something arises during an execution that warrants a stay or other relief.

         Arthur requests the court to enjoin Defendants from enforcing the ADOC's policy prohibiting a visitor from possessing a cell phone while in the prison so that his counsel may possess one while there to view his execution. Arthur represents that his counsel would possess a cell phone for the sole purpose of communicating with his other counsel and the courts. Alternatively, he requests an order directing Defendants to provide his counsel a cellular phone or a landline telephone in the viewing room set aside for his witnesses, to which his attorney witness may have unfettered access during the execution. Arthur also seeks a declaratory judgment that (1) the ADOC's policy, Alabama Dep't of Corr. Reg. 303, ADOC Form 303-E(B)(2), bars him from meaningful access to the courts, in violation of his First, Eighth, and Fourteenth Amendment rights, and (2) Alabama Code § 15-18-83 (1975) is unconstitutional to the extent that it precludes a condemned inmate's counsel from acting in a “legal capacity” as the inmate's counsel at his execution.

         As seen in McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008), “[a]ll 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. Wilson v. Garcia, 471 U.S. 261, 275-76, 105 S.Ct. 1938, 1946-47, . . . (1985).” In Alabama, the governing limitations period for a tort action is two years. See Ala. Code § 6-2-38; Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (en banc). Therefore, for Arthur's claim to be timely, it had to be filed within two years from the date the limitations period began to run.

         In this circuit in § 1983 actions, “the statute of limitations does not begin to run until the facts that would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987) (internal quotations omitted). Thus, it is necessary to determine when the statute of limitations began to run for the constitutional claims Arthur asserts.

         1. Alabama Dep't of Corr. Reg. 303, ADOC Form 303-E(B)(2)

         ADOC Administrative Regulation Number 303 (AR 303) is a twenty-four page document concerning prison operations. The regulation itself consists of sixteen pages of text, accompanied by eight additional pages of form documents. (Doc. # 5-1.) One document attached is entitled Orientation Guidelines for Visitors and Inmates; it is identified as Annex A to AR 303 and is located at page 17 of 24. (Doc. # 5-1 at 18.) AR 303 and Annex A to AR 303 both reflect that they became effective on August 1, 2012. (Docs. # 5-1, 5-1 at 18.)

         Section A of Annex A to AR 303 sets out the General Rules for Visitation. Section B thereof lists fifteen Prohibited Items. One prohibited item listed, No. 2, is electronic equipment, including cell phones. Specifically, Section B.2. prohibits: “Electronic equipment to include, but not be limited to, cell phones, video games, radios, MP3 players, laptops, etc.” (Doc. # 5-1 at 18.)

         The court is cognizant of the ADOC's long-standing policy prohibiting visitors from possessing cellular telephones or wireless devices within its correctional facilities. This policy applies to all visitors, even those who also happen to be counsel for a death-row inmate and are at the facility as designated witnesses to an execution. The policy makes no exception for attorneys in this instance; a visitor is a visitor. Annex A to AR 303 on its face indicates that the most recent date the cell phone ban policy has been reaffirmed, modified, or updated is August 1, 2012. Thus, at the latest, the statute of limitations for Arthur's claim challenging the ADOC's cell phone ban policy as unconstitutional began to run on August 1, 2012, the effective date of Annex A to AR 303. Given the two-year statute of limitations applicable to all § 1983 claims filed in Alabama, McNair, 515 F.3d at 1173, the statute of limitations for Arthur's cell phone ban claim expired on August 1, 2014. Arthur's present action challenging the cell phone ban policy was filed on November 2, 2016. (Doc. # 1.) Therefore, it is time-barred on the face of the complaint and due to be dismissed, similar to the virtually identical claim raised by Ronald Bert Smith in Smith v. Dunn, 2:16cv269 (M.D. Ala. Nov. 18, 2016), challenging the same cell phone ban policy, which the court addressed in the Midazolam Litigation, Grayson v. Dunn, 2:12-cv-316-WKW, 2016 WL 6832630, at *5-6 (M.D. Ala. Nov. 18, 2016), aff'd, Grayson v. Warden, No. 16-17167, 2016 WL 7118393 (11th Cir. Dec. 7, 2016) (unpublished).

         2. Alabama Code § 15-18-83 (1975)

         Alabama Code § 15-18-83 (1975) is an Alabama statute concerning those who are authorized to be present at an execution. The current version of this statute, effective since 1975, states:

Persons who may be present at execution.
(a) The following persons may be present at an execution and none other:
(1) The executioner and any persons necessary to assist in conducting the execution.
(2) The Commissioner of Corrections or his or her representative.
(3) Two physicians, including the prison physician.
(4) The spiritual advisor of the condemned.
(5) The chaplain of Holman Prison.
(6) Such newspaper reporters as may be admitted by the warden.
(7) Any of the relatives or friends of the condemned person that he or she may request, not ...

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