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Wilson v. Dunn

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

November 21, 2017

DAVID WILSON, Plaintiff,
v.
JEFFERSON S. DUNN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff David Wilson is an Alabama death-row inmate in the custody of the Alabama Department of Corrections (“ADOC”).[1] In May 2016, Wilson filed a complaint under 42 U.S.C. § 1983, asserting six causes of action against Defendants for violations of his constitutional rights.[2] (Doc. # 1.)

         This matter is before the court on Defendants' Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b) (6), for Wilson's failure to state a claim upon which relief can be granted. (Doc. # 26.) The motion has been fully briefed and is ripe for review. Defendants' motion is due to be granted in part and denied in part.

         A. Wilson's Capital Litigation History

         On January 8, 2008, Wilson was convicted of two counts of capital murder, for murdering Dewey Walker during the course of robbery and burglary in April 2004. Wilson attacked Walker with a baseball bat and strangled him with an extension cord, inflicting deadly injuries, including broken bones, fractures, cuts, and abrasions, among others. See State v. Wilson, 38-CC-2004-1120-1121 (Sentencing Order at 2) (Houston County Cir. Ct. Jan. 8, 2008). By a vote of 10-2, the jury recommended that Wilson receive a death sentence. The trial court accepted that recommendation and sentenced Wilson to death. Id. at 1, 6.

         The Alabama Court of Criminal Appeals affirmed after remand, Wilson v. State, 142 So.3d 732 (Ala.Crim.App.2012). Both the Alabama Supreme Court and U.S. Supreme Court denied certiorari. See Ex parte Wilson, No. 1111254 (Ala. Sept. 20, 2013); Wilson v. Alabama, 134 S.Ct. 2290 (2014) (mem.).

         On September 19, 2014, Wilson filed a petition in the trial court for collateral relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. That petition remains pending in the Houston County Circuit Court. Wilson has not initiated federal habeas proceedings.

         B. Wilson's Claims

         Wilson claims that, (1) Alabama's method of execution violates his rights under the First, Eighth, and Fourteenth Amendments to the U.S. Constitution; (2) Defendants' consciousness assessment employed after the administration of the first drug is constitutionally inadequate; (3) Defendants' policy prohibiting an inmate's counsel witnessing his execution from possessing or having access to a cell phone during the execution violates his First, Eighth, and Fourteenth Amendment rights; (4) Defendants' veil of secrecy surrounding Alabama's method of execution violates his Fourteenth Amendment due process rights; (5) the ADOC's material deviation from its execution protocol violates his right to equal protection under the Fourteenth Amendment; and (6) the lack of oversight of the ADOC's execution protocol violates Article III, Section 43 of the Alabama Constitution. (Doc. # 24.)

         II. STANDARD OF REVIEW

         A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8: “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “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 Atl. 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.” Id. at 663 (alteration in original) (citation omitted).

         The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Conclusory allegations that are merely “conceivable” and fail to rise “above the speculative level” are insufficient to meet the plausibility standard. Twombly, 550 U.S. at 555, 570. This pleading standard “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678. Indeed, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id.

         III. DISCUSSION

         A. Eighth Amendment Method-of-Execution Claim

         To state an Eighth Amendment claim that survives a motion to dismiss, Wilson must plead plausible facts concerning the “substantive elements of an Eighth Amendment method-of-execution claim.” Glossip v. Gross, 135 S.Ct. 2726, 2739 (2015). Critical here, Wilson must plausibly (1) plead “that [Alabama's] use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain, ” and (2) “identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims.” Id. at 2731 (citing Baze v. Rees, 553 U.S. 35, 61 (2008)).

         “[B]ecause it is settled that capital punishment is constitutional, ‘it necessarily follows that there must be a constitutional means of carrying it out.'” Glossip, 135 S.Ct. at 2732-33 (quoting Baze, 553 U.S. at 47) (alteration omitted). Moreover, “because some risk of pain is inherent in any method of execution[, ] . . . the Constitution does not require the avoidance of all risk of pain.” Id. at 2733 (citation omitted). “Instead, to prevail on an Eighth Amendment challenge to a lethal injection protocol, a condemned inmate must establish an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.” Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271 (11th Cir. 2014).

         1. whether Alabama's execution protocol entails a substantial risk of severe pain

         To meet the first prong of the Baze/Glossip test, Wilson must plausibly plead, “that [Alabama's] use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.” Glossip, 135 S.Ct. at 2739.

         Wilson alleges that midazolam will not anesthetize him, regardless of the dose, because it is not used clinically as a sole anesthetic. (Doc. # 24 at 10-11.) In support of that claim, Wilson relies, in part, on the report of Michael Froelich, M.D., M.S., an anesthesiologist, who states that midazolam, a benzodiazepine, is used almost exclusively as an anxiolytic, “to take off the edge” for patients being prepared for surgery. (Doc. # 24-3 at 1.) Per Dr. Froelich, midazolam is not an anesthetic and is used only as an anesthetic adjunct. (Id.) Dr. Froelich also states that, while midazolam can sedate one to the point where he would not react to Defendants' consciousness assessment, he could still feel the noxious stimuli of the paralytic and potassium chloride. (Id. at 2.)[3]

         Additionally, Wilson supports his claim with reports from recent executions employing 500 milligrams of midazolam as evidence of its ineffectiveness as an anesthetic. These reported events are summarized below:

         a. Paul Howell

         According to an Ohio district court, in January 2014, Howell was executed in Florida with a drug cocktail of 500 milligrams of midazolam, administered in two separate injections of 250 milligrams each, followed by 200 milligrams of vercuronium bromide, given in two separate 100-milligram injections, followed by 240 milliequivalents of potassium chloride. See In re Ohio Execution Protocol Litig., 2:11-cv-01016-EAS-MRM, Doc. # 948 at 23 (S.D. Ohio Jan. 26, 2017). A witness to the execution reported seeing Howell open his eyes after the consciousness check. Id.

         Wilson states that on January 4, 2017, Florida changed its lethal injection protocol to replace midazolam with etomidate, which is not a benzodiazepine, as the first drug to be administered in the protocol. See id.

         b. Christopher Brooks

         Brooks was executed in January 2016 in Alabama. Brooks's execution was the first one in Alabama where midazolam was used in the lethal-injection cocktail. Wilson states that a witness to the Brooks execution described seeing his left eye open after the consciousness assessment. Per the witness's report, after Brooks's left eye opened, it stayed open throughout the remainder of the execution, and no ADOC official took any action when his eye opened.

         Wilson contends that this eye-opening event indicates that Brooks was not insensate before the paralytic was injected and that if the paralytic had been injected properly and performed its function, Brooks would have been unable to open his eye. Wilson further notes that this occurrence in the Brooks execution indicates that Defendants have no mechanism in place for continuing to observe and assess a condemned inmate's consciousness level and taking action when it becomes apparent that an inmate is conscious or has regained consciousness during the execution.

         c. Robert Bert Smith

         Smith was executed in December 2016 in Alabama. His execution was the second in Alabama in which midazolam was the first drug used in the protocol.

         Wilson claims that witnesses to Smith's execution, including news reporter Kent Faulk, observed that it did not go smoothly, and that for thirteen minutes, Smith heaved, coughed, and moved his arms and hands, including after each of two consciousness assessments. Wilson alleges that ADOC officials took no action and proceeded with the execution. Wilson also asserts that Smith's movements and reactions indicate that he was neither adequately anesthetized nor unconscious when the second and third drugs were administered.

         d. Ricky Gray

         Gray was executed in January 2017 in Virginia with a three-drug protocol using midazolam as the first drug. Wilson states that newspaper accounts of Gray's execution reported that the execution took longer than normal and that Gray was observed having labored breathing after the midazolam was injected. These accounts are consistent with the eyewitness reports from the other executions noted above where midazolam was the first drug given in the lethal-injection cocktail.

         Returning to Defendants' motion to dismiss, Defendants submit that Wilson has failed to state an Eighth Amendment method-of-execution claim that meets the Baze/Glossip test. Defendants note that this claim is virtually identical to the Eighth Amendment claim in the Midazolam Litigation that was dismissed for failure to state a claim. Defendants argue that, since this claim in the Midazolam Litigation was dismissed, Wilson's claim also should be dismissed. However, the legal landscape has changed since Defendants made this argument on March 16, 2017. (Doc. # 26.)

         In September 2017, the Eleventh Circuit reversed this court's dismissal and remanded for further proceedings, concluding that this court erred by dismissing the complaints pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim for which relief can be granted. Specifically, the Eleventh Circuit concluded that the complaints did not present a time-barred “general challenge” to Alabama's three-drug lethal injection protocol. See West v. Warden, 869 F.3d 1289 (11th Cir. 2017).

         Defendants further contend that Wilson failed to meet the threshold requirement of alleging that the use of midazolam as the first drug in Alabama's lethal injection protocol is “sure or very likely to cause serious illness and needless suffering.” Baze, 553 U.S. at 50. Defendants argue that Wilson failed to allege any real-world study, data, literature, testing, pharmacological information, practical clinical experience, or facts of any kind that would show that it is sure or very likely that an inmate would not be fully unconscious after the administration of 500 milligrams of midazolam and would remain unconscious throughout the execution.

         Contrary to Defendants' argument that Wilson's claim is conclusory and unsupported, Wilson supports his claim with the report of anesthesiologist Michael Froelich, M.D., M.S., which includes both pharmacological information and his practical clinical experience with midazolam. Froelich states that midazolam is not an anesthetic and is used only as an anesthetic adjunct and that while midazolam can sedate one to the point where he would not react to Defendants' consciousness assessment, he could still feel the noxious stimuli of the paralytic and potassium chloride. (See Doc. # 24-3.)

         Though Wilson is not required to try his claim in the pleadings, he has supported his claim with pharmacological and practical clinical information, and he has alleged facts, albeit hearsay at this point, that at least call into question whether it is sure or very likely that an inmate would not be fully unconscious after the administration of 500 milligrams of midazolam and would remain unconscious throughout the execution. Because the court must accept Wilson's factual allegations as true at this stage of the litigation, he has alleged a plausible claim that there is a “sure or very likely” risk of severe pain. Proving this claim is a different matter, but for purposes of analyzing a Rule 12(b)(6) motion, Wilson has met the first prong of the Baze/Glossip test.

         2. Whether there is an alternative method of execution

         To satisfy the second prong of the Baze/Glossip test, Wilson must “identify a known and available alternative method of execution that entails a lesser risk of pain . . . .” Glossip, 135 S.Ct. at 2731 (citing Baze, 553 U.S. at 61). Wilson proposed four alternative methods of execution, three of which are one-drug protocols using either pentobarbital/compounded pentobarbital, sodium thiopental, or midazolam; the fourth alternative is an execution using nitrogen asphyxiation. The four alternatives are examined below:

         a. Alternative # 1 - Pentobarbital/Compounded Pentobarbital

         Wilson claims that since January 1, 2014, over forty executions have been performed nationwide “using a single large dose of pentobarbital, making it the most common method of execution in the United States” (Doc. # 24 at 31), and that several states, including Colorado, Georgia, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, South Dakota, and Texas “have used or intend to use compounded pentobarbital for executions.” Id. Wilson further states that of single-drug executions in the United States, compounded pentobarbital is the most frequently used. Id.

         In recent years, commercially manufactured pentobarbital has become more difficult for states' departments of corrections to obtain for use in lethal-injection executions in the United States. In a similar § 1983 method-of-execution case containing an Eighth Amendment claim virtually identical to Wilson's Eighth Amendment claim, this court found that the ADOC's supply of commercially manufactured pentobarbital, Nembutal®, expired around November 2013. See Arthur v. Dunn, No. 2:11-CV-438-WKW, (Doc. # 359 at 17, ¶ 1), 2016 WL 1551475, at *1 (M.D. Ala. Apr. 15, 2016), appeal dismissed (July 12, 2016), aff'd sub nom. 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), reh'g denied, 137 S.Ct. 1838 (2017). As of the last evidentiary hearing (in Arthur, on January 12, 2016), the ADOC has been unable to obtain commercially manufactured pentobarbital for use in executions. The Eleventh Circuit confirmed this fact: “As this Court has noted many times, and the Supreme Court reiterated in Glossip, both pentobarbital and sodium thiopental are unavailable for use in executions as a result of the advocacy of death penalty opponents.” Grayson v. Warden, 672 F. App'x 956, 964 (11th Cir. 2016).

         Wilson's proposed alternative concerns “compounded pentobarbital” rather than Nembutal®, the commercially manufactured pentobarbital. In support of his claim that compounded pentobarbital is a viable alternative execution method, Wilson relies on the deposition of Daniel Buffington, Pharm.D., taken in the Midazolam Litigation.[4]See Exhibit G to Wilson's Amended Complaint (Doc. # 24-7). In relevant part, Buffington states that (1) in pharmacy school, all pharmacists are trained to compound drugs (id. at 93); (2) he has compounded pentobarbital previously by reconstituting it from its powder form and could produce it from raw ingredients without the powder because “[i]t's not a difficult recipe” to do (id. at 94-95); and (3) the State of Alabama had not asked him to produce compounded pentobarbital for use in executions or to locate compounding pharmacists who would be willing to do so (id. at 95-96). Buffington further testified that ...


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