from the United States District Court for the Southern
District of Alabama D.C. Docket No. 1:19-cv-00057-KD-MU
TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.
Lee Price, an Alabama prisoner sentenced to death for killing
a man during the commission of a robbery, has moved this
Court for an emergency stay of his execution, which is
scheduled to take place on April 11, 2019, at 6:00 p.m.
Central Standard Time at the Holman Correctional Facility
("Holman"). Price also appeals the district
court's order denying his motion for preliminary
injunction and its order denying his renewed motion for
preliminary injunction. Included within those orders is the
district court's denial of Price's Cross-Motion for
Summary Judgment. After careful consideration, we affirm the
district court's denial of Price's Cross-Motion for
Summary Judgment as well as its denial of Price's
original and renewed motions for preliminary injunction. We
also deny Price's motion for a stay of execution because
he cannot show a substantial likelihood of success on his
was convicted of capital murder for killing William Lynn
during the commission of a robbery, and Price was
subsequently sentenced to death. See Price v. State,
725 So.2d 1003, 1011 (Ala.Crim.App.1997), aff'd sub
nom. Ex parte Price, 725 So.2d 1063 (Ala. 1998). Price
filed a direct appeal of both his conviction and death
sentence, but both were affirmed. See Price, 725
So.2d 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. See Price v. Alabama, 526 U.S. 1133
then filed a state post-conviction Rule 32 petition, but the
petition was denied, and the Court of Criminal Appeals of
Alabama affirmed. 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
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. We affirmed that judgment. See
Price v. Allen, 679 F.3d 1315, 1319-20 (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).
filed a successive state post-conviction Rule 32 petition in
2017, arguing that his death sentence was unconstitutional
under Hurst v. Florida, 136 S.Ct. 616 (2016). That
petition was also denied, and the Court of Criminal Appeals
of Alabama affirmed. Price v. State, No. CR-16-0785,
2017 WL 10923867 (Ala.Crim.App.Aug. 4, 2017), reh'g
denied (Sept. 8, 2017). The Alabama Supreme Court denied
his direct criminal appeals and after the State moved the
Alabama Supreme Court to set an execution date, Price brought
a civil lawsuit under 42 U.S.C. § 1983 alleging that the
Alabama Department of Corrections's ("ADOC")
use of midazolam in its three-drug lethal-injection protocol
violates the Eighth Amendment's ban on cruel and unusual
punishment because it is not effective in rendering an inmate
insensate during execution (the "first § 1983
action"). The district court held a bench trial on
Price's § 1983 claim. But the district court
bifurcated the trial, addressing only whether Price could
meet his burden of showing that his chosen alternative
drug-pentobarbital-was available to the ADOC. The district
court found in favor of the ADOC and against Price. It
concluded that Price had failed to meet his burden of showing
that pentobarbital was a feasible and available drug for use
by the ADOC.
appealed and, on September 18, 2018, we affirmed. Price
v. Comm'r, Ala. Dep't of Corr., 752 Fed.Appx.
701 (11th Cir. 2018). Price recently filed a petition for
writ of certiorari with the Supreme Court of the United
States. That petition is currently pending.
Facts Relevant to this Appeal
the appeal of Price's first § 1983 action was
pending before this Court, the Alabama legislature amended
the State's execution statute to add nitrogen hypoxia as
an approved method of execution. The amendment became
effective on June 1, 2018. See Ala. Code §
15-18-82.1. The statute reads, in relevant part, "A
death sentence shall be executed by lethal injection, unless
the person sentenced to death affirmatively elects to be
executed by electrocution or nitrogen hypoxia." Ala.
Code § 15-18-82.1(a). The statute also provides that the
election of death by nitrogen hypoxia is waived unless it is
personally made by the inmate in writing and delivered to the
warden within thirty days after the certificate of judgment
pursuant to a decision by the Alabama Supreme Court affirming
the sentence of death. Ala. Code § 15-18-82.1(b)(2). If
a judgment was issued before June 1, 2018, as was the case
with Price, the election must have been made and delivered to
the warden within thirty days of June 1, 2018. See
January 11, 2019, the State moved the Alabama Supreme Court
to set an execution date for Price. The Alabama Supreme Court
granted the motion on March 1, 2019, ordering that Price be
executed on April 11, 2019, by lethal injection.
meantime, on January 27, 2019, Price wrote a letter to the
warden of Holman asking that he be executed by nitrogen
hypoxia. The warden responded by notifying Price
that his request was past the thirty-day deadline set forth
in the statute. Nevertheless, she further noted that she did
not have the authority to grant, deny, or reject the request,
and she indicated that any further consideration of the
matter needed to go through Price's attorney to the
Attorney General's Office. Price's attorney then
reached out to the Attorney General's Office and
reiterated Price's desire to "opt in to the nitrogen
hypoxia protocol." Assistant Attorney General Henry
Johnson denied the request, citing the thirty-day period to
opt into the protocol.
February 8, 2019, (approximately one month after the State
sought an execution date), Price filed a civil complaint
against the Commissioner of the ADOC and others. The new
complaint set forth a § 1983 claim in which Price
realleged many of the claims raised in his previous §
1983 action concerning the three-drug lethal-injection
protocol (the "second § 1983 action"). For
example, Price claims that the use of midazolam as the first
drug in its three-drug lethal-injection protocol violates the
Eighth Amendment's ban on cruel and unusual punishment.
The complaint in the second § 1983 action also alleges
that the State violated Price's Fourteenth Amendment
right to equal protection by refusing to allow him to elect
nitrogen hypoxia as his method of execution. With respect to
that claim, Price contended that the State entered into
"secret agreements" with many death row inmates
allowing them to elect nitrogen hypoxia but would not allow
him to do so outside of the 30-day opt-in
review de novo an order on summary judgment.
Smith v. Owens, 848 F.3d 975, 978 (11th Cir. 2017).
As for the district court's denial of Price's motion
for stay of execution, we review that for abuse of
discretion. Brooks v. Warden, 810 F.3d 812, 818
(11th Cir. 2016). With respect to the district court's
factual findings, we review those for clear error.
Glossip v. Gross, 135 S.Ct. 2726, 2739 (2015). Under
this standard, we may not reverse "simply because we are
convinced that we would have decided the case
differently." Id. (cleaned up).
we may grant Price's motion for stay of execution filed
in this Court only if Price establishes that "(1) he has
a substantial likelihood of success on the merits; (2) he
will suffer irreparable injury unless the injunction issues;
(3) the stay would not substantially harm the other litigant;
and (4) if issued, the injunction would not be
adverse to the public interest." Arthur v.
Comm'r, Ala. Dep't of Corr., 840 F.3d 1268, 1321
(11th Cir. 2016) (quoting Brooks v. Warden, 810 F.3d
812, 818 (11th Cir. 2016) (emphases in original)),
abrogated on other grounds by Bucklew v. Precythe,
No. 17-8151, 2019 WL 1428884, at *10 (U.S. Apr. 1, 2019). The
"first and most important question" regarding a
stay of execution is whether the petitioner is substantially
likely to succeed on the merits of his claims. Jones v.
Comm'r. Ga. Dep't of Corr., 811 F.3d 1288, 1292
(11th Cir. 2016).
careful consideration, we conclude that the district court
did not err when it denied Price's Cross-Motion for
Summary Judgment, although our basis for affirmance differs
from the grounds set forth by the district court. We further
find that the district court did not abuse its discretion
when it denied Price's initial and renewed motions for
preliminary injunction in which he sought a stay of
execution. Finally, we deny Price's motion for stay of
execution because he has not satisfied the requirements for
such a stay.
examine each of Price's claims in turn.
Fourteenth Amendment Equal Protection Claim
contends that the State violated his Fourteenth Amendment
right to equal protection by not permitting him to elect
nitrogen hypoxia as a method of execution. To prevail on his
equal-protection claim, Price must first show that "the
State will treat him disparately from other similarly
situated persons." Arthur v. Thomas, 674 F.3d
1257, 1262 (11th Cir. 2012) (quoting DeYoung v.
Owens, 646 F.3d 1319, 1327 (11th Cir. 2011)). Second,
"[i]f a law treats individuals differently on the basis
of . . . [a] suspect classification, or if the law impinges
on a fundamental right, it is subject to strict
scrutiny." Id. (quoting Leib v.
Hillsborough Cty. Pub. Transp. Comm'n, 558 F.3d
1301, 1306 (11th Cir. 2009)). ...