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Arthur v. Dunn

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

May 18, 2017

THOMAS D. ARTHUR, Plaintiff,



         This matter comes before the Court on sua sponte review of the court file.

         Late in the afternoon of May 16, 2017, plaintiff, Thomas D. Arthur, filed a Complaint (doc. 1) and an Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction and Request for an Emergency Hearing (doc. 5) in this District Court.[1] Arthur is an Alabama death row inmate scheduled to be executed on May 25, 2017. He brings this action and petition for emergency injunctive relief pursuant to 42 U.S.C. § 1983, claiming that the State of Alabama's method of execution violates and threatens to violate his rights to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution. The Complaint is centered on what Arthur calls “the State's intent to execute Mr. Arthur using a method the State knows will cause pain.” (Doc. 1, at 1.) Upon careful review, the Court finds that the Complaint fails to state a claim upon which relief can be granted.

         I. Procedural History.

         This brand-new action is not Arthur's first § 1983 challenge to the State's execution protocols, nor his second or even his third. It is his fourth. On November 2, 2016, the Eleventh Circuit Court of Appeals documented Arthur's protracted history of § 1983 method-of-execution litigation in the federal courts as follows:

“[S]tarting nine years ago in 2007 and on three separate occasions, Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug protocol to be used in his execution. This is Arthur's third such § 1983 case, and this current § 1983 case was filed in 2011. For the last five years Arthur has pursued this § 1983 case with the benefit of lengthy discovery. The district court held a two-day trial and entered two comprehensive orders denying Arthur § 1983 relief.”

Arthur v. Commissioner, Alabama Department of Corrections, 840 F.3d 1268, 1272 (11th Cir. 2016).

         In his third § 1983 method-of-execution case, the one that was pending for five years while extensive discovery occurred and that culminated in a two-day trial, Arthur “raised an Eighth Amendment claim, alleging that the ADOC's use of midazolam as the first drug creates a substantial risk of serious harm because … there is a high likelihood that midazolam will fail to render [him] insensate from the excruciatingly painful and agonizing effects of the second and third drugs.” Id. at 1276 (citations omitted).[2] In rejecting that claim, the Eleventh Circuit recognized that “in order to succeed on an Eighth Amendment method-of-execution claim, the Supreme Court has instructed that prisoners must demonstrate that the challenged method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers. … [T]he prisoner must demonstrate that the risk of severe pain is substantial when compared to the known and available alternatives.” Id. at 1299 (citations, emphasis and internal quotation marks omitted). On that basis, the Eleventh Circuit affirmed the district court's denial of Arthur's facial Eighth Amendment challenge to ADOC's execution protocol because “Arthur has failed to show not only that compounded pentobarbital is an available alternative to the ADOC but also that ADOC's protocol creates a substantial risk of severe pain when compared to available alternatives.” Id. at 1304. On November 3, 2016, just one day after the Eleventh Circuit affirmed the dismissal of Arthur's § 1983 complaint, the U.S. Supreme Court stayed his execution “pending further review.” Arthur v. Dunn, 137 S.Ct. 15 (2016). On February 21, 2017, however, the Supreme Court denied Arthur's petition for writ of certiorari. Arthur v. Dunn, 137 S.Ct. 725 (2017). Two and a half months later, and a mere nine calendar days before his scheduled execution date, Arthur filed this new, fourth iteration of a § 1983 method-of-execution lawsuit in this District Court.

         II. Analysis.

         Upon scrutiny of plaintiff's filings, the Court finds that Arthur's Complaint is procedurally improper and is therefore due to be dismissed for at least two independent reasons.

         A. Res Judicata.

         First, the present claims are barred by the doctrine of res judicata. It is well-settled, of course, that “a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001). Res judicata requires that the following four elements be present: “(1) there is a final judgment on the merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the parties, or those in privity with them, are identical in both suits; and (4) the same cause of action is involved in both cases.” Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1375 (11th Cir. 20110 (citation omitted). If all of those elements are present, “[t]he court next determines whether the claim in the new suit was or could have been raised in the prior action; if the answer is yes, res judicata applies.” Piper Aircraft, 244 F.3d at 1296.

         There can be no reasonable dispute that the first three elements of res judicata are satisfied here. After all, Arthur's prior § 1983 action in the Middle District of Alabama attacking the constitutionality of the State's use of midazolam as the first drug in its execution protocol was litigated to a final judgment on the merits before a court of competent jurisdiction, and included substantially identical parties to the present matter. Anticipating the res judicata defense, Arthur posits that the same cause of action is not at issue in both cases. (Doc. 6, at 14-15.) The Court disagrees. To be sure, Arthur is attempting to bring what he characterizes as a different Eighth Amendment claim against the State's use of a midazolam-based execution protocol in this case than the Eighth Amendment claim he directed at that same protocol in the 2011-2016 litigation in the Middle District of Alabama.[3] But res judicata extends beyond the precise claims litigated in the prior action and “bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action.” Maldonado, 664 F.3d at 1377 (emphasis added and citation omitted). “[I]n order to determine whether two cases involve the same cause of action for res judicata purposes, we are obliged to look at the common nucleus of operative fact and ask what legal theories were used or could have been employed in the first proceeding. … A new claim is barred by res judicata if it based on a legal theory that was or could have been used in the prior action.” Id.

         Arthur insists that there is a different “nucleus of operative fact” in this case because his previous Eighth Amendment method-of-execution challenge “was dismissed before the Smith execution and other operative facts and events” (doc. 6, at 14), as documented in the pleading he filed yesterday. Arthur's present Complaint purports to rely on the State's execution of Ronald Bert Smith, Jr., on December 8, 2016 using the midazolam-based protocol. According to the Complaint, after midazolam was injected, Smith moved his head and limbs, coughed, attempted to speak, reacted to an arm pinch, and opened his eyes. (Doc. 1, ¶ 4.) Arthur's Complaint also cites evidence that Arkansas implemented a similar protocol in carrying out the execution of Kenneth D. Williams several weeks ago, and that Williams coughed and jerked after being injected with midazolam. (Id., ¶ 6.) According to the Complaint, unspecified “[a]dditional recent executions in other states using midazolam have similarly resulted in painful deaths.” (Id.) The Complaint alleges that “[a]s a result of these executions, the ADOC now has actual knowledge that its protocol is likely to produce an agonizing execution - and yet it intends to execute Arthur using the same ...

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