United States District Court, S.D. Alabama, Southern Division
K. DUBOSE UNITED STATES DISTRICT JUDGE.
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.
Background and Undisputed Facts
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.
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).
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.
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.
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
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.
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).
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); 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
….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).
Alabama Code § 15-18-82.1(b)(2)
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.
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
… 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
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
form I handed out stated:
TO BE EXECUTED BY NITROGEN HYPOXIA
Pursuant to Act No. 2018-353, if I am to be executed, I elect
that it be by nitrogen hypoxia rather than by lethal
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,
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.
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.
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).