United States District Court, M.D. Alabama, Northern Division
THOMAS D. ARTHUR, Plaintiff,
JEFFERSON S. DUNN, et al., Defendants.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.
Thomas D. Arthur is an Alabama death-row inmate who is in the
custody of the Alabama Department of Corrections
(“ADOC”) awaiting his execution. 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.
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.
DEFENDANTS' MOTION TO DISMISS
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
Statute of Limitations
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.
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
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
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.
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.
Alabama Dep't of Corr. Reg. 303, ADOC Form
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
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.)
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,
Alabama Code § 15-18-83 (1975)
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,
Persons who may be present at execution.
(a) The following persons may be present at an execution and
(1) The executioner and any persons necessary to assist in
conducting the execution.
(2) The Commissioner of Corrections or his or her
(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
(7) Any of the relatives or friends of the condemned person
that he or she may request, not ...