United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS, CHIEF UNITED STATES DISTRICT JUDGE
Michael Shannon Taylor is an Alabama death-row inmate in the
custody of the Alabama Department of Corrections
(“ADOC”). 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.)
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.
Taylor's Capital Litigation History
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.
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).
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.
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.
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
History of Alabama's Method of Execution and
Switch from electrocution to lethal injection
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).
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.
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.
Adoption of the consciousness assessment
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).”).
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.
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.
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