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Lee v. Dunn

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

April 24, 2017

JEFFERY LEE, Plaintiff,
JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, et al., Defendants.



         This matter comes before the Court on Defendants' Motion to Dismiss (doc. 19). The Motion has been the subject of extensive briefing and is now ripe for disposition.

         I. Relevant Background.

         Plaintiff, Jeffery Lee, is an Alabama death row inmate who was convicted in 2000 of three counts of capital murder in connection with the shotgun killings of Jimmy Ellis and Elaine Thompson in a pawnshop near Orrville, Alabama. In October 2000, a Dallas County Circuit Court judge sentenced Lee to death. The Alabama Court of Criminal Appeals affirmed Lee's convictions and sentences in June 2003, and subsequent petitions for rehearing and for writ of certiorari in both the Alabama Supreme Court and the United States Supreme Court were denied, such the Lee's direct appeals concluded in 2004. Lee's Rule 32 proceedings in state court lasted from February 2005 through October 2009, and his § 2254 proceedings in federal court commenced in October 2010 and concluded with the denial of certiorari by the Supreme Court in March 2014. See Lee v. Thomas, 134 S.Ct. 1542, 188 L.Ed.2d 557 (2014). All such appeals and collateral attacks were unsuccessful.[1] At present, the State of Alabama has not set an execution date for Lee.

         On September 8, 2016, Lee filed the instant Complaint (doc. 1) pursuant to 42 U.S.C. § 1983. In this action, Lee asserts a series of constitutional claims challenging the method of his execution. As his First Cause of Action, Lee maintains that Alabama's three-drug lethal injection protocol “creates a substantial risk of excruciating and cruel pain to Mr. Lee because … there is a substantial likelihood that midazolam will fail to render Mr. Lee unconscious and insensate from the excruciating pain and anguish caused by the second and third drugs.” (Doc. 1, ¶ 88.) Lee further alleges that “[t]he State's lack of an effective consciousness check exacerbates the risk that Mr. Lee will experience excruciating pain, ” that “[r]eadily available alternatives exist that the State could employ instead of its current three-drug lethal injection protocol, ” and that “[r]eadily available alternatives exist that the State could employ instead of its current, ineffective consciousness check.” (Id., ¶¶ 89-91.) On that basis, Lee alleges that “[i]f the State's three-drug protocol is used to execute Mr. Lee, then Mr. Lee will be subject to cruel and unusual punishment in violation of the Eighth Amendment.” (Id., ¶ 94.)

         As his Second Cause of Action, Lee brings a Fourteenth Amendment equal protection challenge. In this claim, Lee asserts that the State's lethal injection protocol burdens his right to be free from cruel and unusual punishment because Alabama replaced two drugs in its protocol without updating its consciousness assessment. As pleaded in the Complaint, Lee's “personal and medical history substantially increases the risk” of excruciating pain, and the State's procedures are inadequate to guard against such a risk. (Id., ¶ 99.) For his Third Cause of Action, Lee raises a due process claim predicated on “[t]he State's refusal to disclose material information about its new lethal injection protocol, ” which Lee says has the effect of “depriving him of notice and a meaningful opportunity to challenge the manner” of his execution. (Id., ¶ 105.)

         The State has now moved to dismiss the Complaint in its entirety on grounds of timeliness and failure to state a cognizable claim.

         II. Analysis.

         A. Whether the Complaint is Time-Barred.

         1. Governing Legal Standard.

         Lee's § 1983 challenges to the method of execution are subject to a two-year limitations period. See, e.g., McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (“All 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. … Callahan's claim was brought in Alabama, where the governing limitations period is two years.”) (citations omitted). Circuit law teaches that “an inmate's method of execution claim accrues on the later of the date on which state review is complete, or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.” Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011) (citation omitted).[2]

         There can be no question that Lee's state review concluded back in 2004, well outside the two-year limitations period governing his § 1983 claims. Accordingly, the timeliness analysis in this case hinges on a determination of whether Lee became “subject to a new or substantially changed execution protocol” by the State of Alabama within two years prior to the September 2016 filing of his method-of-execution Complaint. See Arthur v. Thomas, 674 F.3d 1257, 1259 (11th Cir. 2012) (“In order to defeat Alabama's statute of limitations defense, Arthur must show that he filed his § 1983 complaint within two years of a significant change in Alabama's method of administering lethal injections.”); see generally Valle v. Singer, 655 F.3d 1223, 1229 (11th Cir. 2011) (“Thus, the Court must consider whether Valle has alleged facts supporting a conclusion that Florida has changed or substantially altered its execution protocol.”). In this context, “a ‘substantial change' is one that ‘significantly alter[s] the method of execution.'” Brooks v. Warden, 810 F.3d 812, 822 (11th Cir. 2016) (citation omitted).

         2. Whether Midazolam is a Substantial Change.

         Plaintiff insists that the requisite “substantial change” may be found in Alabama's modification of its three-drug protocol to change the initial drug from pentobarbital to midazolam hydrochloride (“midazolam”). The Complaint pleads as follows:

“In September 2014, the State of Alabama revealed for the first time … that the Alabama Department of Corrections had adopted an entirely new lethal-injection protocol to be used in future executions …. The new lethal-injection protocol replaced two out of three drugs used in the previous three-drug protocol.
* * *
The first of these two new drugs is midazolam. Before the new protocol was adopted, midazolam had never before been used in executions in Alabama.”

(Doc. 1, ¶¶ 3-4.)[3] This timeline of events, driven by the lack of availability of pentobarbital (which Alabama had previously designated as the first drug in its lethal injection protocol), has been recognized by the Eleventh Circuit. See Grayson v. Warden, --- Fed.Appx. ___, 2016 WL 7118393, *2 (11th Cir. Dec. 7, 2016) (“Pentobarbital became unavailable in 2014. … Consequently, Alabama announced in September 2014 that it would begin using midazolam as the first drug in its lethal injection protocol.”) (citations omitted).

         Defendants counter that the substitution of midazolam for pentobarbital in Alabama's three-drug protocol has been held by binding authorities not to constitute a “substantial change” for limitations purposes in § 1983 actions challenging the method of execution. See, e.g., Brooks, 810 F.3d at 823-24 (concluding that “we cannot say that the 2014 switch to midazolam triggered a new statute-of-limitations period” because plaintiff had not “established a substantial likelihood that the substitution of midazolam for pentobarbital was a ‘substantial change' to Alabama's protocol, or that it ‘significantly alter[ed] the method of execution'”); Grayson, 2016 WL 7118393, at *4 (“As we recognized in Brooks, the Supreme Court and this Court have indicated that the substitution of midazolam for pentobarbital does not significantly alter a three-drug lethal injection protocol because, similar to pentobarbital, midazolam render[s] a prisoner unconscious and insensate during the remainder of a three-drug procedure.”) (citations and internal quotation marks omitted).[4]

         Lee's position is that the State's inclusion of midazolam in place of pentobarbital in its three-drug protocol is a substantial change for timeliness purposes. In his Complaint, he alleges that it is a substantial change because “[a]s a benzodiazepine, midazolam fits into an entirely different class of drugs than sodium thiopental or pentobarbital, both of which are barbiturates.” (Doc. 1, ¶ 11.) The Complaint goes on to state that this distinction matters because

“Midazolam is not an analgesic, and it does not suppress responses to noxious stimuli. Midazolam's efficacy has a much shorter duration than sodium thiopental or pentobarbital. Unlike sodium thiopental or pentobarbital, … midazolam has not been approved by the Food and Drug Administration (‘FDA') for use as a stand-alone anesthetic. … Midazolam differs significantly and materially from barbiturates, and is more akin to Valium or Xanax.”

(Id., ¶ 39.) Plaintiff contends that “[e]ven at high doses, midazolam will not induce general anesthesia sufficient to prevent an individual from feeling pain from … the second and third drugs in the State's lethal injection protocol.” (Id., ΒΆ 40.) On the strength of these factual allegations, Lee maintains that the Complaint is adequate to overcome a Rule 12(b)(6) hurdle as to timeliness and entitle him to discovery and an evidentiary hearing on the issue of whether the September 2014 modification of Alabama's three-drug protocol to utilize midazolam ...

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