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Price v. Dunn

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

April 5, 2019

JEFFERSON S. DUNN, et al., Defendants.



         This matter came before the Court on April 4, 2019 for a hearing regarding Plaintiff's Emergency Motion for Preliminary Injunction seeking a Stay of Execution (Doc. 28); Defendants' Motion for Summary Judgment (Doc. 19), Plaintiff's Response/Cross-Motion for Summary Judgment (Doc. 29) and Defendants' Reply (Doc. 31). The Court addresses the Motion to Stay by reviewing the merits of the parties' cross motions for summary judgment and the evidence submitted in support. Upon consideration, the Court finds that Price's motion for summary judgment and his motion to stay are DENIED.

         I. Background and Undisputed Facts

         This case concerns the execution protocol for a State of Alabama death row inmate at the Holman Correctional Facility (Holman). Specifically, inmate Plaintiff Christopher Lee Price (Price)'s execution date is set for April 11, 2019. (Doc. 19-5). Price is presently scheduled to be executed via the three (3) drug midazolam hydrochloride based lethal injection protocol. Price seeks execution via a nitrogen hypoxia protocol instead. Price alleges that by refusing to execute him via nitrogen, the State of Alabama is violating his rights under the Eighth Amendment and the equal protection clause of the Fourteenth Amendment.

         A. Background

         Price has been on death row at Holman since 1993, following a capital murder conviction for the 1991 murder of William Lynn. As summarized by the Eleventh Circuit:

Price was indicted for intentionally causing Bill Lynn's death during a robbery in the first degree. See Price v. State, 725 So.2d 1003, 1062 (Ala.Crim.App.1997), aff'd sub nom. Ex parte Price, 725 So.2d 1063 (Ala. 1998). Following a jury trial, Price was convicted and sentenced to death for Lynn's murder. Id. at 1011. Though Price filed a direct appeal of his conviction and death sentence, both were affirmed. See Id. at 1062, aff'd, 725 So.2d 1063 (Ala. 1998). Price's conviction and sentence became final in May 1999 after the Supreme Court denied his petition for writ of certiorari to the Supreme Court of Alabama. See Price v. Alabama, 526 U.S. 1133…(1999).
Price then filed a state post-conviction Rule 32 petition, but the petition was denied, and the Court of Criminal Appeals of Alabama affirmed the dismissal. See Price v. State, 880 So.2d 502 (Ala.Crim.App.2003). The Alabama Supreme Court denied certiorari review. Ex parte Price, 976 So.2d 1057 (Ala. 2006).
Later, Price filed a petition for writ of habeas corpus in the Northern District of Alabama. The district court issued an opinion denying the petition with prejudice and entering judgment against Price. This Court affirmed that judgment. See Price v. Allen, 679 F.3d 1315, 1319-20, 1327 (11th Cir. 2012) (per curiam). The Supreme Court also denied Price's petition for writ of certiorari. Price v. Thomas, 568 U.S. 1212…(2013).

Price v. Commissioner, Ala. Dept. of Corr., 752 Fed.Appx. 701, 703 (11th Cir. 2018).

         In 1995, Alabama executed inmates by electrocution. That changed on July 1, 2002, when the Alabama legislature adopted lethal injection as the state's preferred form of execution. Arthur v. Commissioner, Ala. Dept. of Corr., 840 F.3d 1268, 1274 (11th Cir. 2016); Brooks v. Warden, 810 F.3d 812, 823 (11th Cir. 2016). At that time, the Alabama Department of Corrections (“ADOC”) began using a three (3) drug lethal injection protocol as its default method of execution (instead of electrocution, as death row inmates from that point forward had to affirmatively elect electrocution). Id. From 2002-April 2011, the first drug was sodium thiopental, but from April 2011 through September 10, 2014, Alabama changed the protocol to use penobarbital as the first drug. Id. However, due to pentobarbital's increasing unavailability, starting on September 11, 2014, and continuing to the present, the ADOC substituted midazolam hydrochloride for pentobarbital as the first drug. Id.

         On September 11, 2014, the State of Alabama moved for the Alabama Supreme Court to set an execution date for Price. This prompted Price's October 8, 2014 action in this Court -- his first Section 1983 case -- Price v. Thomas et al., CV 1:14-00472-KD-C (S.D. Ala.), challenging the constitutionality of the ADOC's three (3) drug lethal injection protocol as unconstitutionally cruel and unusual. See also Price v. Dunn, 2017 WL 1013302 (S.D. Ala. Mar. 15, 2017). In March 2015, the State asked the Alabama Supreme Court to hold the execution motion in abeyance pending resolution of Glossip v. Gross, 135 S.Ct. 2726 (2015), a challenge to a three (3) drug midazolam protocol functionally identical to Alabama's. The court granted the motion.

         Later in 2015, the Supreme Court held in part that the inmate petitioners in Glossip had failed to establish an Eighth Amendment violation because they failed to identify an available alternative method of execution that entailed a lesser risk of pain. Following Glossip, the State moved to dismiss Price's Section 1983 complaint, but the Court allowed Price to amend his complaint. As an alternative to the midazolam protocol, Price proposed the use of compounded pentobarbital or sodium thiopental. The parties engaged in discovery, culminating in a non-jury trial in December 2016 on the sole issue of the availability of an alternative method of execution to the State's midazolam included execution protocol On March 15, 2017, this Court entered judgment in favor of the State, finding that Price failed to prove the existence of a substantially safer alternative available to the ADOC. (Doc. 107 -- CV 1:14-00472-KD-C).

         On September 19, 2018, after holding oral argument, the Eleventh Circuit affirmed this Court's decision and denied rehearing on December 26, 2018. The Eleventh Circuit's mandate issued January 3, 2019. Price is now pursuing certiorari review before the Supreme Court.

         On March 22, 2018, the ADOC's injection protocol changed again. Through Act 2018-353, nitrogen hypoxia became a statutorily approved method of execution in the State of Alabama (death row inmates could elect for this protocol, as specified by the statute, instead of execution via the midazolam three (3) drug protocol).

         On February 8, 2019, Price filed this Section 1983 claim to enjoin the State from executing him via the midazolam three (3) drug protocol. (Doc. 1). Price alleges three (3) causes of action against the Defendants (the State): 1) violation of the Eighth Amendment's ban on cruel and unusual punishment (first cause of action); 2) violation of his Fourteenth Amendment equal protection rights for failure to consistently comply with execution protocol (second cause of action)[1]; and 3) violation of his Fourteenth Amendment equal protection rights due to the State's refusal to allow him to elect nitrogen hypoxia (third cause of action). (Id.) As relief, Price seeks that this Court:

….Enjoin Defendants from executing Mr. Price using the lethal injection protocol that the State asserts that it adopted on September 10, 2014, as well as the inadequate anesthesia and execution procedures that violate Mr. Price's right to equal protection under the Fourteenth Amendment and his right to be free from cruel and usual punishment under the Eighth Amendment.
….Order Defendants to disclose to Mr. Price and his counsel the precise lethal injection protocol that will be used during Mr. Price's execution at least 90 days in advance of such execution, including a detailed description of the “consciousness checks” that will be utilized and the qualifications and training of the personnel designated to carry out such checks.
…Enter a declaratory judgment that Defendants' proposed execution protocol, inadequate anesthesia, and execution procedures violate Mr. Price's right to equal protection pursuant to the Fourteenth Amendment and….right to be free from cruel and unusual punishment pursuant to the Eighth Amendment….

(Id. at 31-32). On March 1, 2019, the Alabama Supreme Court scheduled Price's execution for April 11, 2019. (Doc. 19-5).

         B. Alabama Code § 15-18-82.1(b)(2)

         The nitrogen hypoxia execution protocol became a statutorily approved method of execution in the State of Alabama in March 2018, with an effective date of June 1, 2018. The applicable statute, Section 15-18-82.1(b)(2) Ala. Code, provides, in relevant part, that an inmate whose conviction was final prior to June 1, 2018, had thirty (30) days from that date to inform the warden of the correctional facility in which he was housed that he was electing to be executed by the nitrogen hypoxia method. In other words, an inmate such as Price had until June 30 within which to so elect.

         "The State of Alabama did not create a standardized election form for this purpose." (Doc. 19 at 11). Instead, on June 22, 2018, an election form was drafted by Spencer Hahn, Federal Defender with the office of the Federal Defenders (MDALA). (Doc. 29-3 at 2, 5 (Aff. Palombi)). On June 26, 2018, Hahn and John Palombi, Assistant Federal Defender (MDALA), met with eight (8) death row inmate clients at Holman -- which did not include Price -- and provided the form to them, explaining the details of same in the attorney-client context. (Doc. 29-3 at 2-3 (Aff. Palombi)). Following the Federal Defenders' visit, the Warden distributed blank reproductions of the form to death row inmates. Specifically, per the State:

….all inmates sentenced to death prior to the adoption of nitrogen hypoxia as a method of execution were given a one-time thirty-day period in which to elect this method of execution immediately following the enactment of Alabama Act 2018-353. As the act was enacted on June 1, 2018 inmates had until June 30, 2018, to make this election. [ ] Every death-row inmate at Holman…including Price, was given an election form on the order of Warden Stewart…Defendants deny that they made any attempt to keep these election forms secret or that they entered into secret agreements…
… inmates…had a thirty-day period from the enactment in which to elect nitrogen hypoxia. This period lasted from June 1-30, 2018….
*** …All such inmates, including Price, were given the same thirty-day election period and an election form…

(Doc. 12 at 2-3, 6, 11 (footnotes omitted)). According to ADOC Captain Jeff Emberton (Emberton), the Warden directed him to give every death row inmate at Holman a copy of the form and an envelope, to complete and return to the Warden, if the inmate decided to make the election. Emberton attests as follows:

In mid-June 2018, after Alabama introduced nitrogen asphyxiation as a method of execution, Warden Cynthia Stewart tasked me with giving every death row inmate an election form and an envelope. If an inmate wished to be executed by nitrogen asphyxiation, he was to sign and date the form and put it in the envelope, which would be delivered to Warden Stewart.…

         The form I handed out stated:


Pursuant to Act No. 2018-353, if I am to be executed, I elect that it be by nitrogen hypoxia rather than by lethal injection.
This election is not intended to affect the status of any challenge(s) (current or future) to my conviction(s) or sentence(s), nor waive my right to challenge the constitutionality of any protocol adopted for carrying out executions by nitrogen hypoxia.
Dated this day of June, 2018.
…I delivered a form and an envelope to every death row inmate at Holman as instructed….

(Doc. 19-1 at 2-3 (Aff. Pemberton); Doc. 19-2 at 2. While Emberton states it was mid-June when the form was disbursed, it is not contested that the form used by the Warden was the one drafted on June 22, 2018 and given by the Federal Defender to his clients on June 26, 2018. Accordingly, Price could not have received the election form prior to June 22, 2018.

         On summary judgment, the State produced nitrogen hypoxia election forms for three (3) prisoners, signed on June 26 or 27, 2018, which had been timely submitted to the Warden. (Doc. 19-6). Overall, 48 Alabama inmates elected nitrogen hypoxia. (Doc. 19 at 12). Price did not submit a nitrogen hypoxia election form to the Warden between June 1-30, 2018.

         On January 11, 2019, the State asked the Alabama Supreme Court to set Price's execution date. According to Price, on January 12, 2019 his counsel first learned about inmates being able to elect to use nitrogen hypoxia. On January 27, 2019, counsel wrote a letter to the Warden attempting to elect nitrogen hypoxia for Price. In response, the Warden stated the request was "past the deadline of June 2018[, ]" adding she did not "possess the authority to grant, deny or reject your request." (Doc. 19-3 (undated letter)). On February 4, 2019, Price's counsel contacted counsel for the State via e-mail asking to elect nitrogen hypoxia. (Doc. 29-2). Price's request was denied because the statutory thirty (30) day election period had expired. (Id.)

         On February 8, 2019, Price initiated this litigation claiming that the State is violating his constitutional rights by refusing to allow him to elect nitrogen hypoxia for his execution. On March 1, 2019, the Alabama Supreme Court set Price's execution for April 11, 2019. (Doc. 19-5).

         II. Stand ...

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