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Boyd v. Warden, Holman Correctional Facility, Attorney General of Alabama

United States Court of Appeals, Eleventh Circuit

May 9, 2017

ANTHONY BOYD, Plaintiff - Appellant,

         Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:14-cv-01017-WKW.

          Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

          MARCUS, Circuit Judge

         It is by now clear in capital cases that a plaintiff seeking to challenge a state's method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state's planned method of execution. Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court's dismissal of his federal civil rights lawsuit challenging the constitutionality of Alabama's lethal injection protocol. Boyd filed this lawsuit pursuant to Section 1983, alleging, among other things, that Alabama's new lethal injection protocol, which substituted midazolam hydrochloride for pentobarbital as the first of three drugs, violates his Eighth Amendment right to be free from cruel and unusual punishment. Notably, however, he did not allege that execution by a lethal injection protocol generally is unconstitutional. Currently, Alabama law provides inmates sentenced to death with a choice between two methods of execution: lethal injection or electrocution. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, however, Boyd alleged that Alabama should execute him by hanging or firing squad.

         The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd's proposed alternative methods of execution --firing squad and hanging -- are not authorized methods of execution under Alabama law and, therefore, are neither feasible nor readily implementable by that state. It further held that Boyd's remaining claims challenging Alabama's execution protocol, the execution facilities, and the state's decision to keep certain information about the protocol secret were time-barred by the statute of limitations. Finally, the district court ruled that amending these claims would be futile and dismissed Boyd's complaint.

         We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain. The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution. But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain. Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad. We also agree that Boyd's remaining claims were filed well beyond the two-year statute of limitations governing § 1983 claims in Alabama. Accordingly, we affirm.



         The facts of the kidnapping and murder that Boyd committed have been laid out by the Alabama Court of Criminal Appeals. See Boyd v. State, 715 So.2d 825, 832 (Ala.Crim.App.1997). On July 31, 1993, Boyd and three accomplices kidnapped Gregory Huguley, who owed them $200.00 for cocaine they had given him several days earlier. Id. The four men forced Mr. Huguley into a van at gunpoint and drove him to a park, making a stop at a gas station to purchase some gasoline in a plastic container. Id. They then made him lie down on a bench; bound his hands, mouth, and feet with duct tape; and then taped him to the bench, ignoring his repeated pleas for mercy and his promises to repay them. Id. One of the men, Shawn Ingram, doused Huguley in gasoline, leaving a two-foot trail of gasoline leading away from the bench where he was bound. Id. Ingram then lit the trail of gasoline that led to Huguley, causing him to catch fire. Id. The four men watched Huguley burn for ten to fifteen minutes, and as he burned, he rolled over a few feet. Id. Huguley died as a result of his injuries. Id.

         After trial in Talladega County, Alabama, a state jury convicted Boyd of murder made capital because it occurred during the course of a kidnapping in the first degree, and recommended by a vote of 10-2 that a death sentence be imposed. Id. at 831-32. After conducting a separate sentencing hearing, the trial court followed the jury's recommendation and sentenced Boyd to death by electrocution. Id. at 832. Boyd's conviction and death sentence were affirmed on direct appeal, see id. at 852, aff'd sub nom. Ex parte Boyd, 715 So.2d 852 (Ala. 1998), cert. denied, Boyd v. Alabama, 525 U.S. 968 (1998), and his Rule 32 petition for state post-conviction relief was denied, see Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003), cert. denied, No. 1030438 (Ala. May 27, 2005). Boyd then sought federal habeas corpus relief in the United States District Court for the Northern District of Alabama. The district court denied his habeas petition; we affirmed, see Boyd v. Comm'r, Ala. Dep't of Corr., 697 F.3d 1320 (11th Cir. 2012); and the United States Supreme Court denied certiorari review, see Boyd v. Thomas, 133 S.Ct. 2857 (2013).


         When Boyd was sentenced to death in 1995, Alabama executed inmates by electrocution. See McNair v. Allen, 515 F.3d 1168, 1171 (11th Cir. 2008). On July 31, 2002, however, the Alabama legislature changed the state's method of execution to "lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution." Ala. Code § 15-18-82.1(a). The legislature allowed inmates already under a sentence of death at that time a 30-day window to choose electrocution as their method of execution, after which time they would be deemed to have waived the right to request a method other than lethal injection. Id. § 15-18-82.1(b). The method-of-execution statute further provides that "[i]f electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court under the Constitution of Alabama of 1901, or held to be unconstitutional by the United States Supreme Court under the United States Constitution, or if the United States Supreme Court declines to review any judgment holding a method of execution to be unconstitutional under the United States Constitution made by the Alabama Supreme Court or the United States Court of Appeals that has jurisdiction over Alabama, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution." Id. § 15-18-82.1(c). The statute does not prescribe any particular method of lethal injection; the legislature left it to the Alabama Department of Corrections ("ADOC") to devise the policies and procedures governing lethal injection executions, and exempted the ADOC from the Alabama Administrative Procedure Act in exercising that authority. Id. § 15-18-82.1(g).

         The ADOC has used a three-drug lethal injection protocol since it began performing executions by lethal injection in 2002. See Brooks v. Warden, 810 F.3d 812, 823 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, 136 S.Ct. 979 (2016). Each drug in a three-drug protocol is intended to serve a specific purpose: the first drug should render the inmate unconscious to "ensure[] that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs"; the second drug is a paralytic agent that "inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration"; and the third drug "interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest." Baze v. Rees, 553 U.S. 35, 44 (2008) (plurality op.). The third drug in the ADOC protocol has always been potassium chloride, and the second drug has always been a paralytic agent -- either pancuronium bromide or rocuronium bromide. Brooks, 810 F.3d at 823. However, the ADOC has changed the first drug in the protocol twice: From 2002 until April 2011, it used sodium thiopental as the first drug in the three-drug sequence; from April 2011 until September 10, 2014, it used pentobarbital as the first drug; and from September 11, 2014, until the present, it has used midazolam hydrochloride as the first drug. Id.


         Boyd's present suit is one of several challenges brought by Alabama death row inmates pursuant to 42 U.S.C. § 1983 in the Middle District of Alabama, alleging that Alabama's current lethal injection protocol is unconstitutional. On October 2, 2014, less than a month after the ADOC substituted midazolam for pentobarbital as the first drug in the lethal injection protocol, Boyd brought suit in that court and, in December 2014, filed an amended complaint that alleged the following facts. Boyd asserts that the ADOC's switch from pentobarbital to midazolam renders it substantially more likely that he will suffer unnecessarily during the execution. Unlike pentobarbital, Boyd says, midazolam is "wholly unsuitable as the first drug in a three-drug lethal injection protocol because it will not render [him] unconscious, numb, and insensate from the administration of the painful second and third drugs, rocuronium bromide and potassium chloride." Boyd also contends that the ADOC's manner of determining whether inmates are rendered insensate to pain by the first drug -- the "pinch test" -- is "wholly ineffective" because, even if an inmate cannot feel a pinch, he may be able to feel the far more painful sensations caused by asphyxiation.

         Boyd further alleges that the ADOC has kept important information concerning its lethal injection protocol secret, which prevents inmates from seeking effective judicial review of the ADOC's protocol. He says that the ADOC does not ensure that the lethal injection personnel are sufficiently trained to administer anesthesia during the execution, and that the execution team "is wholly unprepared and inadequately trained as to constitutional execution procedures." Finally, Boyd alleges that the ADOC's execution facilities are deficient because the ADOC may not have the equipment necessary to achieve and maintain venous access in the event of a complication, and the physical condition of the execution facilities is "highly questionable."

         The amended complaint asserted seven claims for relief: (I) Alabama's method of execution is cruel and unusual in violation of the Eighth Amendment because midazolam will not render him sufficiently insensate to the pain caused by the second and third drugs in the protocol; (II) Alabama's execution squad personnel are inadequately trained and, therefore, there is a substantial risk that they will err during Boyd's execution and cause him unnecessary pain and suffering, in violation of his Eighth Amendment rights; (III) Alabama's execution facility is deficient, creating a substantial risk of maladministration of Boyd's execution in violation of his Eighth Amendment rights; (IV) the Alabama Department of Corrections ("ADOC") has adopted and revised processes and procedures for carrying out executions in secret, thus preventing Boyd from effectively being able to comment on the new procedures or challenge them in court, in violation of his Fourteenth Amendment due process rights; (V) during his execution, ADOC employees will fail to perform the "pinch test" to ensure that the midazolam renders Boyd unconscious as required by Alabama's lethal injection protocol, which will violate his right to equal protection of the laws under the Fourteenth Amendment; (VI) a claim for declaratory relief that Alabama's execution protocol is unlawful; and (VII) a claim for injunctive relief enjoining Alabama from executing Boyd or other inmates until the constitutional defects he identified are remedied.


         The defendants moved to dismiss Boyd's amended complaint for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). In March 2015, the district court entered orders staying Boyd's suit, as well as the six other § 1983 lethal injection cases pending before it, until after the Supreme Court issued its decision in Glossip v. Gross, 135 S.Ct. 2726 (2015), a case concerning the constitutionality of Oklahoma's lethal injection protocol. Pursuant to the stay order, the district court denied the defendants' motion to dismiss, affording the defendants leave to refile the motion after the Supreme Court decided Glossip.

         On June 29, 2015, the Supreme Court decided Glossip, holding that, in order to successfully challenge a method of execution, a plaintiff must plead and prove: (1) that the proposed execution method presents a risk that is "'sure or very likely to cause serious illness and needless suffering, ' and give rise to 'sufficiently imminent dangers, '" Glossip, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 50 (plurality op.)); and (2) that there is "an alternative [method of execution] that is 'feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain, '" id. (alteration adopted) (quoting Baze, 553 U.S. at 52 (plurality op.)).

         Following the Supreme Court's decision in Glossip, the defendants renewed their motion to dismiss Boyd's amended complaint. During briefing on the renewed motion, Boyd sought leave to file a second amended complaint. The proposed amendation makes all of the same factual allegations contained in the first amended complaint, and includes additional allegations concerning Alabama's execution team and potential alternative methods of execution that are available to Alabama. Regarding the execution team, Boyd claims that a member of the team was hospitalized in July 2015, and that in August 2015, two officers on the execution team abruptly quit the execution team. He also proposes two alternatives to Alabama's current lethal injection protocol: execution by firing squad or hanging. Boyd alleges that the legislatures in both Utah and Oklahoma have approved the firing squad as a method of execution, and that there are no impediments to Alabama obtaining the necessary materials for performing an execution by firing squad. Furthermore, firing squad executions have a good track record of "speed and certainty for the condemned." Moreover, Boyd says, in the alternative, Alabama could execute him by hanging, which has been approved by state legislatures as an available method of execution in Delaware, New Hampshire, and Washington, and which poses a lesser risk of pain than he faces under Alabama's current protocol. He alleges that, like these other states, the Alabama legislature is "fully capable of" approving either firing squad or hanging as a method of execution. Notably, Boyd did not propose an alternative drug cocktail that the state could use in his execution.

         On October 7, 2015, the district court granted the defendants' renewed motion to dismiss and denied Boyd's motion for leave to file a second amended complaint. The court first addressed Boyd's motion for leave to file. It determined that the proposed second amended complaint failed to state an Eighth Amendment method-of-execution claim in Count I because it did not propose a feasible and readily available alternative method of execution, as it was plainly required to do under controlling Supreme Court law. The district court determined that Boyd's proposed alternatives -- firing squad and hanging -- are neither feasible nor readily available for use in Alabama because they have not been approved for use as methods of execution by Alabama's legislature. Moreover, the court observed, Boyd's allegations that execution by firing squad or hanging entail a lesser risk of pain than Alabama's current lethal injection protocol "are nothing more than bare-bone legal conclusions unsupported by facts." Therefore, the district court concluded, Count I of the proposed second amended complaint failed to state a method-of-execution claim and amending that claim would be futile.

         The court further determined that amending the remaining six claims also would be futile because the claims, even as amended, were barred by the statute of limitations. Relying on this Court's controlling precedent in McNair v. Allen, 515 F.3d 1168 (11th Cir. 2008), and Powell v. Thomas, 643 F.3d 1300 (11th Cir. 2011), the district court observed that Boyd's claims were subject to a two-year statute of limitations and accrued on July 31, 2002, when Boyd became subject to execution by lethal injection, unless there had been a "significant change" to Alabama's lethal injection protocol that would restart the statute of limitations clock. The court observed that, unlike the method-of-execution challenge asserted in Count I, Counts II and III -- challenging the training of the execution squad personnel and adequacy of the facilities under the Eighth Amendment -- had nothing to do with the ADOC's switch from pentobarbital to midazolam. And, the court said, nothing prevented Boyd from bringing these claims within two years after he became subject to death by electrocution.

         The district court similarly determined that Count IV, the due process challenge to the secrecy of Alabama's lethal injection protocol, accrued when the legislature changed the method of execution in 2002 because the secrecy policy has remained unchanged since then. Moreover, the court said, Count IV also failed to state a due process claim under our decision in Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1260, 1267 (11th Cir. 2014), which rejected a similar challenge to Georgia's secrecy statute. The district court also found that Count V -- alleging that Boyd's equal protection rights would be violated by the state's failure to adequately perform the pinch test during his execution -- was time-barred because Boyd did not allege any facts to establish that the claim was timely, such as by identifying recent executions in which the state had failed to perform the pinch test. And Counts VI and VII, seeking declaratory and injunctive relief, were unnecessary and repetitive of the preceding claims. Thus, the district court concluded that the proposed amendments were futile. And because the operative amended complaint was entirely subsumed by the proposed second amended complaint, the district court granted the defendant's motion to dismiss and entered final judgment in favor of the defendants.

         This timely appeal followed.


         We review a district court's grant of a motion to dismiss with prejudice de novo, "accepting the [factual] allegations in the complaint as true and construing them in the light most favorable to the plaintiff." Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008) (quotation omitted). Fed.R.Civ.P. 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

         A complaint need not contain "detailed factual allegations, " but must include enough facts "to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal citation and footnote omitted). Moreover, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.; see also Twombly, 550 U.S. at 555 ("[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."). The Supreme Court has employed a "two-pronged approach" in applying the foregoing principles: first, a reviewing court should eliminate any allegations in the complaint that are merely legal conclusions; and second, where there are well-pleaded factual allegations, "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679.

         We generally review a district court's decision to deny leave to amend for abuse of discretion, but review de novo an order denying leave to amend on the grounds of futility, because it is a conclusion of law that an amended complaint would necessarily fail. Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264 (11th Cir. 2011). An amendment is considered futile when the claim, as amended, would still be subject to dismissal. See Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).


         We proceed in two parts. First, we address Boyd's Eighth Amendment method-of-execution claim asserted in Count I, challenging the state's new midazolam protocol. Then, we address whether Boyd's remaining claims are time-barred or otherwise fail as a matter of law. Like the district court, we analyze the allegations in Boyd's proposed Second Amended Complaint because, if those allegations are insufficient as a matter of law, then so are the less thorough allegations contained in the operative Amended Complaint.



         For state prisoners, "[f]ederal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983." Muhammad v. Close, 540 U.S. 749, 750 (2004). The federal habeas statute allows "a person in custody pursuant to the judgment of a State court" to seek relief in federal court "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposes meaningful procedural requirements on state prisoners seeking federal review of their convictions, 28 U.S.C. § 2254(b), (c), and places restrictions on a federal court's power to grant habeas relief, 28 U.S.C. § 2254(d). Section 1983 is a broad remedial statute that authorizes suit against any person who, under color of state law, "subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution." 42 U.S.C. § 1983. Read literally, § 1983 could apply to all claims alleging constitutional violations by inmates in state custody. However, habeas and § 1983 are "mutually exclusive" avenues for relief, and the line of demarcation between them "is based on the effect of the claim on the inmate's conviction and/or sentence." Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006). "Simply put, if the relief sought by the inmate would either invalidate his conviction or sentence or change the nature or duration of his sentence, the inmate's claim must be raised in a § 2254 habeas petition, not a § 1983 civil rights action." Id. "Although method-of-execution challenges brought under § 1983 are not governed by AEDPA, they do fall at the margins of habeas, and therefore implicate many of the same comity concerns AEDPA was designed to address." McNair v. Allen, 515 F.3d 1168, 1175 (11th Cir. 2008) (internal citation and quotation omitted).

         In two cases, the Supreme Court has permitted inmates to bring method-of-execution challenges brought pursuant to § 1983. See Nelson v. Campbell, 541 U.S. 637, 643 (2004); Hill v. McDonough, 547 U.S. 573, 580 (2006). In both cases, the inmates challenged particular facets of the state's intended method of lethal injection -- in Nelson, 541 U.S. at 641-42, the plaintiff challenged the use of a painful "cut-down" procedure to gain vein access, and in Hill, 547 U.S. at 578, it was the adequacy of the first-drug in the protocol -- and conceded that the state could constitutionally execute them using other methods of lethal injection that were authorized by state law, see Nelson, 541 U.S. at 645-46; Hill, 547 U.S. at 581. Following Nelson and Hill, we have entertained method-of-execution challenges to specific aspects of a state's lethal injection protocol pursuant to § 1983. See, e.g., Jones v. Comm'r, Ga. Dep't of Corr., 811 F.3d 1288, 1295 (11th Cir.), cert. denied sub nom. Jones v. Bryson, 136 S.Ct. 998 (2016); Brooks v. Warden, 810 F.3d 812, 819 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, 136 S.Ct. 979 (2016); Arthur v. Comm'r, Ala. Dep't of Corr., 840 F.3d 1268 (11th Cir. 2016), cert denied sub nom. Arthur v. Dunn, 137 S.Ct. 725 (2017).


         The Eighth Amendment to the United States Constitution provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The prohibition against cruel and unusual punishments protects against punishments that are "incompatible with the evolving standards of decency that mark the progress of a maturing society" or that involve the "unnecessary and wanton infliction of pain" on a prisoner. Estelle v. Gamble, 429 U.S. 97, 102, 104 (1976) (quotation omitted). A state's method of executing condemned inmates must comport with these basic principles, but the Supreme Court "has never invalidated a State's chosen procedure of carrying out a sentence of ...

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