Juan Chavez v. Florida SP Warden, etal , 742 F.3d 1267 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10561
Non-Argument Calendar
________________________
D.C. Docket No. 3:14-cv-00110-BJD-JBT
JUAN CARLOS CHAVEZ,
Plaintiff-Appellant,
versus
FLORIDA SP WARDEN,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
JOHN DOES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 12, 2014)
Before CARNES, Chief Judge, WILSON and MARTIN, Circuit Judges.
CARNES, Chief Judge:
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Juan Carlos Chavez kidnapped a nine-year-old boy at gunpoint, anally raped
him, verbally taunted and terrorized him, shot him to death, dismembered his body,
discarded his body parts in three planters, and then filled those planters with
concrete. See Chavez v. State, 832 So. 2d 730, 738–41 (Fla. 2002). Facing
imminent execution, Chavez has filed a lawsuit claiming that he may experience
unnecessary pain when the State of Florida executes him by lethal injection. After
conducting an evidentiary hearing, the district court denied Chavez’s request for a
temporary restraining order, preliminary injunction, or stay of execution. This is
his appeal.1
I. BACKGROUND
On January 2, 2013, Florida Governor Rick Scott signed Chavez’s death
warrant and his execution was set for 6:00 p.m. on February 12, 2014. After the
death warrant was signed, Chavez filed a 42 U.S.C. § 1983 lawsuit in district court
challenging the constitutionality of Florida’s recently revised lethal injection
protocol, which substituted midazolam hydrochloride, a sedative in the
1
Chavez’s unsuccessful attempts to have his conviction and death sentence set aside are
reflected in Chavez v. Secretary, Florida Department of Corrections, No. 14-10486, — F.3d —,
2014 WL 504720 (11th Cir. Feb. 10, 2014); Chavez v. State, No. SC14–35, 2014 WL 346026
(Fla. Jan. 31, 2014); Chavez v. State, No. SC12–1470, 2013 WL 5629607 (Fla. Oct. 11, 2013);
Chavez v. Secretary Florida Department of Corrections, 647 F.3d 1057 (11th Cir. 2011); Chavez
v. State, 12 So. 3d 199 (Fla. 2009); and Chavez v. State, 832 So. 2d 730 (Fla. 2002).
2
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benzodiazepine family of drugs, for pentobarbital, a barbiturate, as the first drug in
the three-drug protocol.
Florida’s revised lethal injection protocol, adopted on September 9, 2013
(2013 Protocol), calls for the sequential intravenous administration of three drugs:
(1) 500 milligrams of midazolam hydrochloride, which is meant to serve as an
anesthetic; (2) 100 milligrams of vecuronium bromide, a neuromuscular blocking
agent that paralyzes voluntary muscles, including the diaphragm, and stops
respiration; and (3) 240 milliequivalents of potassium chloride, a naturally
occurring salt that induces cardiac arrest by interfering with the heart’s electrical
activity. Chavez also filed a motion for a temporary restraining order, preliminary
injunction, or stay of execution (omnibus motion).
Although Chavez’s amended § 1983 complaint raised a number of claims for
relief from his impending execution, only one of those claims merits extended
discussion. 2 Chavez’s principal claim is that the use of midazolam hydrochloride
2
We do, however, pause to note our agreement with the district court’s reasoning
concerning Chavez’s claim that the forcible administration of vecuronium bromide would violate
his due process rights under Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174 (2003), because
it serves no medical purpose in the execution process. As the district court explained, the liberty
interest in avoiding involuntary medical treatment that Sell identified does not apply in the
context of capital punishment because “by its nature, the execution process is not a medical
procedure, and by design, it is not medically appropriate for the condemned.” Doc. 50 at 39.
And “[u]sing drugs for the purpose of carrying out the death penalty does not constitute medical
treatment.” Id. at 42.
3
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in the 2013 Protocol violates the Eighth Amendment’s ban on cruel and unusual
punishment because it creates a substantial risk of serious harm. In both his
amended complaint and omnibus motion, Chavez alleged that when used by itself
midazolam is not effective in inducing “a surgical plane of anesthesia,” which is a
state of complete unconsciousness and insensitivity to pain or other “noxious
stimuli” that would prevent a condemned inmate from experiencing the
asphyxiation and searing pain caused by the remaining two drugs in the lethal
injection protocol.
Relying on the declaration of his retained expert, anesthesiologist Dr. David
Lubarsky, Chavez asserted that midazolam is not typically used in clinical settings,
nor FDA-approved for use, as a standalone anesthetic in major surgical procedures
because it has no analgesic (pain-relieving) properties; that it can trigger
“paradoxical reactions” which would prevent its sedative properties from taking
effect, particularly in those, like himself, who suffer from extreme anxiety or
certain other mental disorders; that there is no scientific evidence that 500
milligrams of midazolam would produce a state of complete unconsciousness; and
that the 2013 Protocol is not properly suited to addressing these concerns because
it does not require the assistance of trained medical personnel and its mandated
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consciousness check does not adequately ensure that an inmate is unconscious
before the final two drugs in the protocol are administered.
Chavez also pointed to published news reports of three recent executions —
the Florida executions of William Happ and Askari Abdullah Muhammad, and the
Ohio execution of Dennis McGuire — each of which is said to have involved
varying degrees of movement after the administration of midazolam. Chavez took
these reported movements — a momentary head movement in case of Happ, the
opening of an eye in the case of Muhammad, and McGuire appearing to gasp for
air — as indicating that midazolam is not effective in rendering an inmate
unconscious and insensate to pain. As a proffered alternative to the use of
midazolam, Chavez advocated the use of a barbiturate, either in combination with
other drugs or in a single fatal dose, as a more humane method of execution that
“would significantly reduce the substantial risk of excruciating pain” allegedly
created by the 2013 Protocol. But the only specific barbiturates named anywhere
in his amended complaint or omnibus motion were pentobarbital and sodium
thiopental, both of which Florida had previously used as the first drug in its lethal
injection protocol. Florida initially used sodium thiopental, but as Chavez
explained in an appendix to his amended complaint, “international pressure against
the death penalty resulted in a shortage of sodium thiopental” that forced states
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with capital punishment “to scramble for an alternative drug.” Florida then
selected pentobarbital, but as Chavez conceded in his amended complaint,
pentobarbital is no longer available and the “2013 Protocol was created in response
to [its] unavailability.”
After an evidentiary hearing marked by sharply conflicting testimony from
Chavez’s expert, Dr. Lubarsky, and the State’s expert, Dr. Roswell Lee Evans, the
district court denied Chavez’s omnibus motion for a temporary restraining order,
preliminary injunction, or stay of execution because he had not shown a substantial
likelihood of success on the merits of his claims, both on the merits themselves and
as to the statute of limitations defense the State had asserted. The court rejected
Dr. Lubarsky’s testimony as “essentially speculative and insufficient to meet
[Chavez’s] burden,” and instead credited Dr. Evans’ testimony that 500 milligrams
of midazolam — forty times the dosage typically used in clinical settings — would
not only induce a deep anesthetic state in which an inmate would be rendered
insensate, unconscious, and incapable of feeling pain, but would ultimately result
in respiratory arrest, cardiac arrest, and death. Doc. 50 at 22–25, 33, 35. Based on
Dr. Evans’ testimony, the court concluded that the “massive dose [of midazolam]
required by the Florida protocol . . . will render the individual insensate to noxious
stimuli by placing the individual in an anesthetic state, unable to discern pain,” that
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its effects would be “quite similar to that of sodium thiopental or pentobarbital on
consciousness,” and that it “would result in a cascade effect with the whole body
rapidly starting to shut down” until an inmate’s “ultimate[] death.” Id. at 25, 35.
The court, again crediting Dr. Evans’ testimony, also rejected Chavez’s
contention that midazolam, in the massive dose stipulated in the 2013 Protocol,
carries a substantial risk of paradoxical reactions, and his contention that the bodily
movements reported in the executions of Happ, Muhammad, and McGuire
demonstrated a significant likelihood of consciousness when midazolam is used in
an execution protocol. Dr. Evans testified during the evidentiary hearing that the
incidence of paradoxical reactions in normal therapeutic settings was “less than 1
percent,” and that a massive dose of midazolam would avoid any potential
paradoxical reactions and directly render a person unconscious. The district court
credited all of that testimony and discredited Dr. Lubarsky’s contrary testimony.
Dr. Evans also testified that body movement does not necessarily indicate
consciousness. Crediting that testimony, the court found that “Happ’s movement
(and Muhammad’s, if his eye opened) does not necessarily equate to pain or with
consciousness,” that the two-drug protocol used in Ohio to execute McGuire was
not “sufficiently similar to Florida’s execution protocol” to call Florida’s protocol
into question, and that Chavez “may have only a 1 percent risk of a paradoxical
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reaction.” Doc. 50 at 25 n.24, 26–27, 30. Because Chavez had failed to show that
Florida’s current lethal injection protocol creates a substantial risk of severe pain,
the district court found that he could not successfully challenge the protocol “by
contending that the one-drug protocol may be a better execution protocol for
Florida to adopt.” Id. at 37.
Chavez timely appealed to us the district court’s denial of his omnibus
motion.3 We have jurisdiction under 28 U.S.C. § 1292(a)(1). He has also filed in
this Court an application for a stay of execution.
II. DISCUSSION
A preliminary injunction is appropriate if the movant demonstrates all of
these elements: (1) a substantial likelihood of success on the merits; (2) that the
preliminary injunction is necessary to prevent irreparable injury; (3) that the
threatened injury outweighs the harm the preliminary injunction would cause the
3
Chavez’s notice of appeal states that he appeals from “the decision” of the district court
on February 10, 2014. The decision of the court on that date was to deny his omnibus motion
seeking a preliminary injunction, a temporary restraining order, and a stay of execution. Because
notice was given to the party opposing the motion for a restraining order and an evidentiary
hearing has been held, the motion for a restraining order is moot or, if one prefers, the issues
involving it are merged into the motion for a preliminary injunction. Likewise, any attempted
appeal of the district court’s denial of a stay of execution is subsumed in Chavez’s motion for a
stay of execution in this Court. We would not hold that the district court abused its discretion in
deciding not to stay the execution unless, at a minimum, we ourselves were going to stay the
execution, which would in turn moot an appeal of the district court’s denial of a stay. For those
reasons, and for the sake of brevity and clarity, we will treat Chavez’s appeal as challenging the
denial of his request for a preliminary injunction.
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other litigant; and (4) that the preliminary injunction would not be averse to the
public interest. Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034–35
(11th Cir. 2001). We review a district court’s denial of a motion for a preliminary
injunction only for an abuse of discretion. See Valle v. Singer, 655 F.3d 1223,
1225 (11th Cir. 2011).
Capital punishment, including capital punishment by lethal injection,
generally is constitutional. See Baze v. Rees, 553 U.S. 35, 47, 128 S. Ct. 1520,
1529 (2008) (plurality opinion).4 Because “[s]ome risk of pain is inherent in any
method of execution,” the Eighth Amendment “does not demand the avoidance of
all risk of pain in carrying out executions,” particularly where the pain results “by
accident or as an inescapable consequence of death.” Id. at 47, 50, 128 S. Ct. at
1529, 1531. Nor does the Eighth Amendment prohibit procedures that create an
4
The plurality opinion in Baze was joined by only three Justices, but it contains the
holdings of the Court in that case. See Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990,
993 (1977) (explaining that with a fractured decision the holding of the Court is the “position
taken by those Members who concurred in the judgments on the narrowest grounds”) (internal
marks and quotation marks omitted). Chief Justice Roberts’ plurality opinion denied relief on a
narrower ground than the concurring opinion of Justice Thomas, which was joined by Justice
Scalia. See Baze, 553 U.S. at 39, 47–52, 128 S. Ct. at 1525, 1529–32 (plurality opinion); id. at
94–107, 128 S.Ct. at 1556–63 (Thomas, J., concurring in the judgment, joined by Scalia, J.).
Two circuits have explicitly recognized that Chief Justice Roberts’ plurality opinion contains the
holdings in Baze. See Dickens v. Brewer, 631 F.3d 1139, 1145–46 (9th Cir. 2011); Jackson v.
Danberg, 594 F.3d 210, 222–23 (3d Cir. 2010). We have implicitly done so. See Valle, 655
F.3d at 1231–32; DeYoung v. Owens, 646 F.3d 1319, 1325 (11th Cir. 2011); Powell v. Thomas,
641 F.3d 1255, 1257 (11th Cir. 2011).
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“unnecessary risk” of pain without more. Id. at 47, 51, 128 S. Ct. at 1529, 1532
(rejecting the petitioners’ contention that the “the Eighth Amendment prohibits
procedures that create an ‘unnecessary risk’ of pain”). Instead, to prevail on an
Eighth Amendment challenge to a lethal injection protocol, a condemned inmate
must establish “an objectively intolerable risk of harm that prevents prison officials
from pleading that they were subjectively blameless for purposes of the Eighth
Amendment.” Id. at 50, 128 S.Ct. at 1531 (quotation marks omitted). To
demonstrate that, an inmate must show two things: (1) the lethal injection protocol
in question creates “a substantial risk of serious harm,” and (2) there are “known
and available alternatives” that are “feasible, readily implemented,” and that will
“in fact significantly reduce [the] substantial risk of severe pain.” Id. at 50, 52, 61,
128 S. Ct. at 1531–32, 1537; see also id. at 52 n.3, 128 S. Ct. at 1532 n.3 (noting
that a showing of a “substantial risk of serious harm” is a “threshold requirement”
for asserting a viable Eighth Amendment challenge).
Chavez has not established a substantial likelihood of success on the merits
of his Eighth Amendment claim that the use of midazolam hydrochloride in
Florida’s current lethal injection protocol amounts to cruel and unusual
punishment. In light of the district court’s thorough and detailed credibility
determinations and the extensive factual findings that flowed from them, including
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the court’s finding that the “massive dose [of midazolam] required by the Florida
protocol . . . will render the individual insensate to noxious stimuli by placing the
individual in an anesthetic state, unable to discern pain,” Chavez has not
demonstrated that the use of midazolam in the 2013 Protocol creates a substantial
risk of serious harm. The district court’s findings, none of which are clearly
erroneous, negate any contention that Chavez’s evidence shows that midazolam is
not effective as an anesthetic. See Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 574–575, 105 S. Ct. 1504, 1511–12 (1985) (explaining that factual
findings may not be set aside on appeal unless clearly erroneous, and that “when a
trial judge’s finding is based on his decision to credit the testimony of one of two
or more witnesses, each of whom has told a coherent and facially plausible story
that is not contradicted by extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error”); United States v. Lebowitz, 676
F.3d 1000, 1009 (11th Cir. 2012) (“Appellate courts reviewing a cold record give
particular deference to credibility determinations of a fact-finder who had the
opportunity to see live testimony.”) (quotation marks omitted). As a result, Chavez
cannot show that the use of midazolam would allow him to feel sensations of
suffocation and searing pain caused by the other two drugs in the 2013 Protocol,
vecuronium bromide and potassium chloride. This ground is a sufficient basis to
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find that the district court did not abuse its discretion in finding that Chavez failed
to demonstrate a substantial likelihood of success on the merits.5
III. THE MOTION FOR A STAY OF EXECUTION
The standard for granting a motion for a stay of execution mirrors that for
granting a preliminary injunction which, in this specific context, is a stay of
execution. A stay should not be granted unless the inmate establishes a substantial
likelihood of success on the merits. Valle, 655 F.3d at 1225. For the reasons we
have already discussed, Chavez has failed to show a substantial likelihood of
success on the merits of his claims. For that reason, his motion for a stay of
execution is due to be denied without regard to the other three requirements for
issuance of one. Id.
IV. CONCLUSION
The district court’s order denying a preliminary injunction is AFFIRMED.
The motion for a stay of execution is DENIED.
5
In light of our conclusion that Chavez has not established a substantial likelihood of
success on the merits of any of his claims, we do not address and imply no view about the State’s
asserted defenses based on the statute of limitations, exhaustion of administrative remedies, and
res judicata.
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CARNES, Chief Judge, concurring:
I concur in all of the Court’s opinion and write separately to discuss an
independently adequate alternative reason why Chavez has failed to show a
substantial likelihood of success on his claim that Florida’s use of midazolam
hydrochloride in its 2013 Protocol violates the Eighth Amendment’s ban on cruel
and unusual punishment.
The Supreme Court held in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520
(2008) (plurality opinion), that to establish an Eighth Amendment violation in the
use of a lethal injection protocol, an inmate must show “an objectively intolerable
risk of harm that prevents prison officials from pleading that they were
subjectively blameless.” Id. at 50, 128 S.Ct. at 1531 (quotation marks omitted).
To establish that in regard to the use of a particular drug, the inmate must prove not
only that the drug being used creates “a substantial risk of serious harm,” but also
that there is a “known and available alternative[]” drug that is “feasible, readily
implemented,” and that will “in fact significantly reduce [the] substantial risk of
severe pain.” Id. at 50, 52, 61, 128 S. Ct. at 1531–32, 1537. The Court could not
have been clearer about that:
[T]he proffered alternatives must effectively address a “substantial
risk of serious harm.” To qualify, the alternative procedure must be
feasible, readily implemented, and in fact significantly reduce a
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substantial risk of severe pain. If a State refuses to adopt such an
alternative in the face of these documented advantages, without a
legitimate penological justification for adhering to its current method
of execution, then a State’s refusal to change its method can be
viewed as “cruel and unusual” under the Eighth Amendment.
Id. at 52, 128 S.Ct. at 1532 (citation omitted). As is true with every other element
of a claim, the burden of proof on all aspects of the alternative drug requirement is
on the plaintiff inmate.
The Supreme Court explained that it is not enough for an inmate merely to
show that “a slightly or marginally safer alternative” is available. Id. at 51, 128
S.Ct. at 1531. Letting that showing suffice “would embroil the courts in ongoing
scientific controversies beyond their expertise,” “threaten to transform [them] into
boards of inquiry charged with determining ‘best practices’ for executions,” and
“substantially intrude on the role of state legislatures in implementing their
execution procedures.” Id.
An inmate obviously cannot begin to prove that there is an “available,”
“feasible,” and “readily implemented” alternative drug that will “in fact
significantly reduce a substantial risk of severe pain,” id. at 52, 61, 128 S. Ct. at
1532, 1537, without identifying a specific drug that meets those requirements.
Chavez has failed to do that. While he attacks the use of midazolam in Florida’s
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three-drug lethal injection protocol, and broadly advocates for the adoption of a
single-drug protocol consisting of a fatal dose of a barbiturate, he has not
specifically identified any particular barbiturate that is even allegedly “available,”
“feasible,” and can be “readily implemented” by the State of Florida.
Chavez’s filings in the district court did not contend that there is any specific
alternative drug that is actually available for use by the State of Florida. In his
amended complaint, the appendices to that complaint, and his omnibus motion,
Chavez mentioned two barbiturates — pentobarbital and sodium thiopental — that
could be used in place of midazolam, but he admitted that neither drug was
available for use in executions. Chavez conceded in his complaint that Florida’s
“2013 Protocol was created in response to the unavailability of pentobarbital.”1
Doc.15 at 6 (emphasis added). And in an appendix to his amended complaint,
Chavez admitted that sodium thiopental is not available for use in lethal injections
either. The appendix contains a “Request for Additional Public Records from the
1
Even in the absence of Chavez’s concessions, it is clear that sodium thiopental and
pentobarbital are not available and feasible alternatives to Florida’s 2013 Protocol. Both drugs
were once widely used in lethal injection protocols across the country, but they became
unavailable for that use after their manufacturers, because of opposition to the death penalty,
refused to let the drugs be used in executions. See Molly Hennessy-Fiske, Prolonged Execution
Raises Debate on Lethal Injections, Balt. Sun, Jan. 19, 2014, at 20A; Eric Eckholm & Katie
Zezima, States Face Shortage of Key Lethal Injection Drug, N.Y. Times, Jan. 21, 2011,
http://www.nytimes.com/2011/01/22/us/22lethal.html; Manny Fernandez, Executions Stall as
States Seek Different Drugs, N.Y. Times, Nov. 8, 2013, http://www.nytimes.
com/2013/11/09/us/executions-stall-as-states-seek-different-drugs.html.
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Florida Department of Corrections Pursuant to Fla. R. Crim. P. 3.852(i),” in which
Chavez stated:
In 2010, international pressure against the death penalty resulted in a
shortage of sodium thiopental and the states that employ capital
punishment had to scramble for an alternative drug. On June 8, 2011,
Florida followed the path of other states when it issued new lethal
injection procedures substituting the barbiturate pentobarbital
(Nembutal) for sodium thiopental.
Doc. 20 at 6.
Instead of alleging that pentobarbital and sodium thiopental are “available,”
“feasible,” and can be “readily implemented” by the State of Florida in place of
midazolam, Chavez represented to the district court in his filings that they are not
available for use in lethal injections. Even if he had not made those concessions,
however, his claim would still fail for the same reasons. An inmate must not only
plead that a specifically named alternative drug is “available,” “feasible” and can
be “readily implemented” in the challenged lethal injection protocol, he must also
prove it. Chavez introduced not one jot, tittle, or iota of evidence that
pentobarbital or sodium thiopental is available and can be readily obtained by the
State of Florida for use in executing him or any other death-row inmate.
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While Dr. Lubarsky’s declaration generally touted the relative virtues of
barbiturates and broadly asserted that there are “alternative drugs [that] can reliably
and humanely cause death without [the] risk of excruciating pain,” he
conspicuously did not name a single barbiturate or any other drug that he believed
Florida actually could obtain and use. And he did not testify that there was any
such drug. While testifying, Dr. Lubarsky did make a passing reference to the
anesthetic propofol as an alternative to midazolam, but neither he nor Chavez
stated that it was actually available, feasible, and could be readily implemented by
Florida in its lethal injection process. An alternative drug that its manufacturer, or
its distributor, or the FDA will not allow to be used for lethal injection purposes is
no drug at all for Baze purposes.2
Throughout the district court proceedings, the most Chavez did in the way of
demonstrating an adequate alternative to the 2013 Protocol was asserting that a
single-drug protocol was a “feasible, readily implemented alternative procedure.”
He accurately summarized the extent of his contentions at the evidentiary hearing
2
The reason that Dr. Lubarsky did not testify that Florida could readily obtain propofol to
use in its lethal injection protocol probably is that he knew it could not. After Missouri, in 2012,
adopted a single-drug lethal injection protocol using propofol, the European Union threatened to
limit the export of propofol to American hospitals if it were used in executions. See Mo. to
Proceed with Two Executions, Bos. Globe, Oct. 8, 2013, available at 2013 WLNR 25135924. In
response to national pressure to avoid any interruption in the supply of propofol, Missouri
abandoned its single-drug protocol. See Jim Salter, Missouri Governor Stops Execution Using
New Drug, Bos. Globe, Oct. 12, 2013, available at 2013 WLNR 25592304.
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when he said: “We’ve offered the alternatives, the one-drug protocol.” But he
never identified that one drug nor even suggested how Florida could obtain it for
use in executions. Chavez has not come close to satisfying his burden of proving
the existence of an “available,” “feasible,” and “readily implemented” alternative
to midazolam hydrochloride, let alone one that will significantly reduce a
substantial risk of severe pain. This is another reason he has failed to establish a
substantial likelihood of success on the merits of his Eighth Amendment challenge
to the use of midazolam in Florida’s 2013 Protocol.
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WILSON, Circuit Judge, concurring:
I agree that the district court properly found that Chavez failed to
demonstrate a substantial likelihood of success on the merits of his claims and is
thus not entitled to a stay of his execution. Therefore, I concur in the majority
opinion. I write separately to underscore that the question of whether a significant
change has occurred to a state’s lethal injection protocol is a fact-intensive inquiry
for which an evidentiary hearing is especially important. The district judge in this
case properly conducted an evidentiary hearing and thoroughly studied the parties’
filings and exhibits and the governing legal principles. Indeed, while the district
court concluded that expert anesthesiologist Dr. Lubarsky’s testimony was
ultimately speculative and insufficient to meet Chavez’s burden, nothing prevents a
future inmate from presenting an anesthesiologist or expert to assert an opinion
based on more conclusive and methodologically sound results. Further, in the
event of a botched execution in this or a future case, such evidence may be relevant
in a subsequent Eighth Amendment challenge to Florida’s execution practices.
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MARTIN, J., concurring in judgment:
In Mr. Chavez’s case, the District Court has made the factual finding that
Florida’s “protocol change substituting midazolam for the first drug in the three-
drug protocol is not a substantial change to the protocol.” This finding is not
clearly erroneous based on the record before the District Court, so I am compelled
to affirm the District Court’s Order denying a preliminary injunction and stay of
Mr. Chavez’s execution.
I write separately to emphasize the fact-intensive nature of the District
Court’s decision in this case and to commend the District Court for holding an
evidentiary hearing before concluding that Mr. Chavez “has not shown a
substantial likelihood of success on the merits of his claims because they are barred
by Florida’s four-year statute of limitations.” Because I view the statute of
limitations issue as dispositive to Mr. Chavez’s Eighth Amendment claims, I agree
with the decision to affirm the District Court. But because we review a record
from the District Court which arose from a quickly assembled hearing based on a
request for injunctive relief, I do not believe that record lends itself to a review of
the merits of Mr. Chavez’s underlying claims.
Where, as here, the state raises a valid statute of limitations defense to a
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§ 1983 lethal injection lawsuit, it is not necessary for us to consider the merits of
the underlying constitutional claim. See, e.g., Henyard v. Sec’y, DOC, 543 F.3d
644, 647 (11th Cir. 2008) (“We need not, and do not, reach the merits of Henyard's
constitutional claims [regarding the constitutionality of Florida’s lethal injection
procedures] because we conclude: (1) that the district court did not err in
determining that the particular claims in Henyard's current § 1983 action are barred
by the statute of limitations and that thus Henyard has not carried his burden to
show a substantial likelihood of success on his § 1983 complaint . . . .”); McNair v.
Allen, 515 F.3d 1168, 1178 (11th Cir. 2008) (finding a District Court abused its
discretion in granting a stay in a § 1983 lethal injection case by determining the
prisoner “had a significant possibility of success on the merits of his claim when,
in fact, the complaint was filed beyond the applicable . . . statute of limitations”).
We review an evidentiary record in which Mr. Chavez was expressly limited by
the district court, no doubt due in large measure to the timing of his lawsuit being
filed only a couple of weeks before his scheduled execution.
Mr. Chavez filed his § 1983 amended complaint in the District Court on
Monday, February 3, 2014. The District Court entered an order that same day
directing the parties to file expedited pleadings in the District Court the next day.
Mindful of Mr. Chavez’s imminent execution, the District Court also scheduled a
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“limited evidentiary hearing” for Wednesday, February 5, 2014 at 9:00 a.m. The
Order setting the hearing limited Mr. Chavez to a single witness, Dr. Lubarsky,
whose testimony was also limited solely to the subject of his earlier filed affidavit.
On February 4th, the state filed a response and motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) and, alternatively moved for summary
judgment, arguing that Mr. Chavez’s claims were, among other things, barred by
the statute of limitations. The state also filed an emergency motion for
reconsideration of the District Court’s order granting a limited evidentiary hearing,
which the District Court took under advisement.
At the beginning of the evidentiary hearing, the District Court heard
arguments on preliminary matters, including arguments about the necessity of even
having an evidentiary hearing. Mr. Chavez’s counsel argued that his expert, Dr.
Lubarsky would testify, consistent with his earlier filed affidavit, that Florida’s
September 2013 changes to its lethal injection protocol worked a “substantial
change” sufficient to overcome any statute of limitations bar. Mr. Chavez’s
counsel acknowledged at the time that “if we do not prevail on a substantial
change, then obviously the statute of limitations issue is foreclosed, but we will
make the case today that this was a substantial change.” Mr. Chavez’s arguments
prompted the District Court to ask the state the following question:
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“[I]s not that determination a fact intensive determination as to whether or not
there’s been a substantial change? And as I understand [the state’s] argument, the
statute of limitations rests on whether or not there has been a substantial change?”
The state answered “Yes” and argued that “merely substituting “one anesthetizing
drug in the three-drug protocol does not restart your statute of limitations.” After
hearing additional argument, the District Court denied the state’s motion for the
Court to reconsider its order setting an evidentiary hearing, explaining that the
issues raised by the state “are all fact dependent.” I could not agree more with the
District Court’s decision that an evidentiary hearing was necessary.
It is well-settled that “a method of execution claim accrues on the later of the
date on which state review is complete, or the date on which the capital litigant
becomes subject to a new or substantially changed execution protocol.” McNair v.
Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). Mr. Chavez’s state case became final
in 2003 with the denial of certiorari review by the United States Supreme Court.
See Chavez v. Florida, 539 U.S. 947, 123 S. Ct. 2617 (2003). 1 In order to
1
Although not the subject of this Order, it is not disputed that Mr. Chavez never had federal
habeas review of the merits of his § 2254 habeas petition, because he missed the deadline for
filing set by the Antiterrorism and Effective Death Penalty Act. See Chavez v. Sec’y Fla. Dep’t
of Corr., 647 F.3d 1057 (11th Cir. 2011), cert. denied sub nom., Chavez v. Tucker, ___ U.S. ___,
132 S. Ct. 1018 (2012). Indeed to my knowledge he is the first inmate in the state of Florida to
be executed with no federal habeas review of the merits of his claims.
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overcome Florida’s statute of limitations defense, Mr. Chavez “must show that he
filed his § 1983 complaint within [four] years of a significant change in [Florida’s]
method of administering lethal injections.” Arthur v. Thomas, 674 F.3d 1257,
1259 (11th Cir. 2012) (emphasis added).
Mr. Chavez’s motion for temporary restraining order, preliminary injunction
and stay in the District Court alleged his § 1983 action was not barred by the
statute of limitations because the midazolam protocol “is a substantially changed
execution protocol.” Specifically, Mr. Chavez challenged Florida’s substitution of
midazolam hydrochloride for pentobarbital as the first drug in Florida’s three-drug
protocol. Unlike pentobarbital, which is a barbiturate, Mr. Chavez’s amended §
1983 complaint alleged with specificity that “midazolam is an . . . inappropriate
drug to use to achieve the purpose of the first drug in a three-drug lethal injection
protocol because it is never used as the sole anesthetic for a painful procedure and
has no analgesic properties.”
Significantly, Mr. Chavez supported his factual allegations with a
declaration from Dr. David Lubarsky, an anesthesiologist with impressive
credentials from the University of Miami, as well as an affidavit from James R.
McDonough, former Secretary for the Florida Department of Corrections. In short,
Mr. Chavez presented new and additional information to the District Court in
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support of his § 1983 claims that was not presented or considered in Muhammad v.
Crews, No. 3:13-cv-1587-J-32JBT, 2013 WL 6844489 (M.D. Fla. Dec. 27, 2013),
aff’d sub nom., Muhammad v Sec’y, Fla. Dep’t of Corr., 739 F.3d 683 (11th Cir.
2014), cert. denied, ___ U.S. ___, 134 S. Ct. 894 (2014). That additional
information included, for example, new allegations that Mr. Muhammad’s “eyes
opened three minutes before he was declared dead.” The opening of Mr.
Muhammad’s eye at this stage of Florida’s midazolam protocol, Mr. Chavez
alleged, “indicates that he was not properly anesthetized and that he would have
been experiencing the effects of the vecuronium and potassium chloride already
administered.” As I mentioned, the District Court limited Mr. Chavez to one
witness, Dr. Lubarsky. The state was, in turn, permitted to call only one rebuttal
witness of its choosing.
We have said that “[w]hether a significant change has occurred in a state’s
method of execution is a fact-dependent inquiry, which we have treated as such in
each of our recent cases addressing the lethal injection protocols of Alabama,
Georgia and Florida.” Arthur, 674 F.3d at 1260 (emphasis added). As we
emphasized in Arthur, any conclusion that the substitution of one drug for another
in a lethal injection protocol does not constitute a “significant change” is
necessarily “premised on the specific factual allegations and/or evidence presented
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and considered” in each case. Id. One § 1983 plaintiff’s litigation of a particular
lethal injection protocol cannot foreclose all further judicial inquiry into the matter.
Were it otherwise, courts would be deprived of the ability to consider the
significance of the use of new drug in new ways, as well as the experiences states
have had in using the new drug protocols. This is important where, as here, states
are experimenting with new drug protocols because of shortages in pentobarbital
and other drugs, as well as our evolving scientific knowledge and experience with
new drug protocols.
All this is to say, the District Court should be commended for its cautious
and deliberate approach to deciding the disputed factual issues concerning
Florida’s new midazolam drug protocol. Given the fact dependent nature of the
District Court’s ruling on the issue of whether Mr. Chavez demonstrated a
significant change to the protocol, as well as the deference owed District Court fact
findings made after an evidentiary hearing, I am compelled to defer to the District
Court’s conclusion that Mr. Chavez has not shown a likelihood of success on the
merits of his claims because they are barred by Florida’s statute of limitations. The
District Court’s fact finding on this issue was not clearly erroneous.
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