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Taylor v. Dunn

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

November 21, 2017

JEFFERSON S. DUNN, et al., Defendants.




         Plaintiff Michael Shannon Taylor is an Alabama death-row inmate in the custody of the Alabama Department of Corrections (“ADOC”).[1] In January 2017, Taylor filed a complaint under 42 U.S.C. § 1983, asserting three causes of action against Defendants for violations of his constitutional rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. (Doc. # 1.)

         This matter is before the court on Defendants' Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for Taylor's failure to state a claim upon which relief can be granted. (Doc. # 14.) This motion has been fully briefed and is ripe for review. Defendants' motion is due to be granted in part and denied in part.

         A. Taylor's Capital Litigation History

         On April 14, 1993, Taylor was convicted of three counts of capital murder for the November 1991 killings of 83-year-old Ivan Moore and his 79-year-old wife, Lucille Moore, by repeatedly striking them with a metal bar, fracturing their skulls. Taylor v. State, 10 So.3d 1079, 1080 (Ala.Crim.App.2006). Two of the counts were made capital because they were committed during the course of a robbery, see Ala. Code § 13A-5-40(a)(2) (1975), and the third count was made capital because two or more persons were murdered during one act or course of conduct, see Ala. Code § 13A-5-40(a)(10) (1975). The jury found Taylor guilty on all counts of capital murder and unanimously recommended the death sentence. On May 5, 1993, the trial judge accepted the jury's recommendation and sentenced Taylor to death. Taylor, 10 So.3d at 1080.

         Taylor's convictions were affirmed on appeal, see Taylor v. State, 666 So.2d 36 (Ala.Crim.App.1994), as was his sentence, see Taylor v. State, 666 So.2d 71 (Ala.Crim.App.1994). The Alabama Supreme Court affirmed his convictions and sentence. Ex parte Taylor, 666 So.2d 73 (Ala. 1995), cert. denied, Taylor v. Alabama, 516 U.S. 1120 (1996).

         On March 3, 1997, Taylor filed a Rule 32 petition in state court, challenging his convictions and sentence. The circuit court dismissed some claims as procedurally barred, conducted an evidentiary hearing on the remaining claims, and ultimately denied the Rule 32 petition. The Alabama Court of Criminal Appeals (ACCA) affirmed. Taylor v. State, 10 So.3d 1037, 1047 (Ala.Crim.App.2004). The Alabama Supreme Court granted certiorari only on the issue of whether a determination on direct appeal that there was no plain error in the trial proceeding precludes a capital defendant from raising a claim of ineffective assistance of counsel in a post-conviction proceeding. The Alabama Supreme Court held that a determination on direct appeal that no plain error at trial occurred “does not automatically foreclose a determination of the existence of the prejudice required under Strickland to sustain a claim of ineffective assistance of counsel.” Ex parte Taylor, 10 So.3d 1075, 1078 (Ala. 2005). For that reason, the Alabama Supreme Court reversed the ACCA's conclusion and remanded for further proceedings. The remainder of the ACCA's decision was affirmed. Id.

         On remand, the trial court denied Taylor's claim that he had received ineffective assistance of trial counsel. On February 22, 2008, the ACCA affirmed, without an opinion, see Taylor v. State, 10 So.3d 1079, 1083, n.*. On December 31, 2008, the Alabama Supreme Court denied certiorari review, without opinion. Id.

         On February 9, 2009, Taylor filed a habeas corpus petition, pursuant to 28 U.S.C. § 2254, in the U.S. District Court for the Northern District of Alabama, which was denied. Taylor v. Culliver, No. 4:09-cv-00251-KOB, 2012 WL 4479151, at *1 (N.D. Ala. Sept. 26, 2012). The Eleventh Circuit affirmed. Taylor v. Culliver, 638 F. App'x 809 (11th Cir. 2015). On November 28, 2016, the Supreme Court denied Taylor's petition for a writ of certiorari. Taylor v. Culliver, 137 S.Ct. 494 (2016).

         B. History of Alabama's Method of Execution and Execution Protocol

         1. Switch from electrocution to lethal injection

         Taylor has been on death row since 1993. At the time Taylor was sentenced, Alabama executed inmates by electrocution. On July 31, 2002, Alabama adopted lethal injection as its preferred method of execution and gave inmates then on death row thirty days thereafter in which to select electrocution as their method of execution. The failure to timely elect electrocution constituted a waiver to death by electrocution. Taylor did not opt out of the new protocol; thus, he became subject to death by lethal injection. See Ala. Code § 15-18-82.1 (2002).

         From July 31, 2002, when Alabama switched to lethal injection as its preferred form of execution, until 2011, sodium thiopental was the first drug used in the ADOC's three-drug lethal injection protocol. In 2011, the ADOC amended its protocol by substituting pentobarbital for sodium thiopental as the first drug. At that time, the ADOC made no amendment to the other two drugs administered, pancuronium bromide and potassium chloride.

         On September 10, 2014, the ADOC amended its execution protocol again, this time by substituting midazolam for pentobarbital as the first drug used in its three-drug lethal-injection sequence, and by substituting rocuronium bromide for pancuronium bromide as the second drug. On September 11, 2014, the State disclosed the ADOC's amended protocol in motions it filed in the Alabama Supreme Court to set execution dates for several death-row inmates.

         2. Adoption of the consciousness assessment

         In October 2007, the ADOC made the consciousness assessment a mandatory component of its execution protocol. See Arthur v. Thomas, 674 F.3d 1257, 1263 n.6 (11th Cir. 2012) (“. . . Alabama assesses an inmate's consciousness through graded stimuli, first calling the inmate's name, then stroking the inmate's eyelids and finally pinching the inmate's arm.”); Arthur v. Allen, CV-0722-WS-M, 2007 WL 4105113, at *2 (S.D. Ala. Nov. 15, 2007) (“The modifications to the protocol consist of the following additions to the preexisting procedures: (1) examination of the prisoner by an execution team member, following administration of the [first drug] but before administration of the [second drug], to assess his consciousness (by calling his name, gently stroking his eyelashes, and pinching his arm).”).

         C. Taylor's Claims

         Taylor's first cause of action is an Eighth Amendment claim challenging the ADOC's execution protocol, alleging that the ADOC's use of midazolam, the first drug to be administered, is unconstitutional. Specifically, he asserts that midazolam does not produce the sustained state of anesthesia necessary to render him insensate to the unconstitutional level of pain associated with the injection of the second and third drugs. On this premise, he claims that Defendants' current execution protocol creates a “substantial risk of serious harm, ” Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion), and violates his right to be free from cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. Instead of midazolam used in a three-drug, lethal injection protocol, Taylor proposes 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 by nitrogen asphyxiation.

         In his second cause of action, Taylor challenges that part of the ADOC's execution protocol known as the consciousness assessment. He claims that this assessment is inadequate to ensure that he is sufficiently anesthetized prior to being injected with the remaining two drugs, which creates a substantial risk of unconstitutional pain, in violation of the Eighth Amendment.

         Taylor's third cause of action is a claim that the ADOC's policy prohibiting an inmate's counsel witnessing his execution from having access to a cellular phone or a land-line telephone during his execution denies him access to the court in violation of his First, Eighth, and Fourteenth Amendment rights.

         II. ...

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