Anthony Boyd v. Warden,Holman Correctional Facility , 856 F.3d 853 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14971
________________________
D.C. Docket No. 2:14-cv-01017-WKW
ANTHONY BOYD,
Plaintiff - Appellant,
versus
WARDEN, HOLMAN CORRECTIONAL FACILITY,
ATTORNEY GENERAL OF ALABAMA,
JEFFERSON S. DUNN,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(May 9, 2017)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
MARCUS, Circuit Judge:
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It is by now clear in capital cases that a plaintiff seeking to challenge a
state’s method of execution under the Eighth Amendment of the United States
Constitution must plausibly plead, and ultimately prove, that there is an alternative
method of execution that is feasible, readily implemented, and in fact significantly
reduces the substantial risk of pain posed by the state’s planned method of
execution. Appellant Anthony Boyd, an Alabama death row inmate, appeals the
district court’s dismissal of his federal civil rights lawsuit challenging the
constitutionality of Alabama’s lethal injection protocol. Boyd filed this lawsuit
pursuant to Section 1983, alleging, among other things, that Alabama’s new lethal
injection protocol, which substituted midazolam hydrochloride for pentobarbital as
the first of three drugs, violates his Eighth Amendment right to be free from cruel
and unusual punishment. Notably, however, he did not allege that execution by a
lethal injection protocol generally is unconstitutional. Currently, Alabama law
provides inmates sentenced to death with a choice between two methods of
execution: lethal injection or electrocution. Instead of identifying an alternative
method of lethal injection that would be feasible, readily implemented, and
substantially less risky than the midazolam protocol or opting for death by
electrocution, however, Boyd alleged that Alabama should execute him by hanging
or firing squad.
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The district court determined that Boyd had failed to state a claim under the
Eighth Amendment because Boyd’s proposed alternative methods of execution --
firing squad and hanging -- are not authorized methods of execution under
Alabama law and, therefore, are neither feasible nor readily implementable by that
state. It further held that Boyd’s remaining claims challenging Alabama’s
execution protocol, the execution facilities, and the state’s decision to keep certain
information about the protocol secret were time-barred by the statute of limitations.
Finally, the district court ruled that amending these claims would be futile and
dismissed Boyd’s complaint.
We agree with the district court that Boyd has not come close to pleading
sufficient facts to render it plausible that hanging and firing squad are feasible,
readily implemented methods of execution for Alabama that would significantly
reduce a substantial risk of severe pain. The Alabama legislature is free to choose
any method of execution that it deems appropriate, subject only to the constraints
of the United States Constitution. But Boyd has not alleged that either lethal
injection in all forms or death by electrocution poses an unconstitutional risk of
pain. Having authorized two unchallenged methods of execution, Alabama is
under no constitutional obligation to experiment with execution by hanging or
firing squad. We also agree that Boyd’s remaining claims were filed well beyond
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the two-year statute of limitations governing § 1983 claims in Alabama.
Accordingly, we affirm.
I.
A.
The facts of the kidnapping and murder that Boyd committed have been laid
out by the Alabama Court of Criminal Appeals. See Boyd v. State, 715 So. 2d
825, 832 (Ala. Crim. App. 1997). On July 31, 1993, Boyd and three accomplices
kidnapped Gregory Huguley, who owed them $200.00 for cocaine they had given
him several days earlier. Id. The four men forced Mr. Huguley into a van at gun-
point and drove him to a park, making a stop at a gas station to purchase some
gasoline in a plastic container. Id. They then made him lie down on a bench;
bound his hands, mouth, and feet with duct tape; and then taped him to the bench,
ignoring his repeated pleas for mercy and his promises to repay them. Id. One of
the men, Shawn Ingram, doused Huguley in gasoline, leaving a two-foot trail of
gasoline leading away from the bench where he was bound. Id. Ingram then lit the
trail of gasoline that led to Huguley, causing him to catch fire. Id. The four men
watched Huguley burn for ten to fifteen minutes, and as he burned, he rolled over a
few feet. Id. Huguley died as a result of his injuries. Id.
After trial in Talladega County, Alabama, a state jury convicted Boyd of
murder made capital because it occurred during the course of a kidnapping in the
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first degree, and recommended by a vote of 10-2 that a death sentence be imposed.
Id. at 831–32. After conducting a separate sentencing hearing, the trial court
followed the jury’s recommendation and sentenced Boyd to death by electrocution.
Id. at 832. Boyd’s conviction and death sentence were affirmed on direct appeal,
see id. at 852, aff’d sub nom. Ex parte Boyd, 715 So. 2d 852 (Ala. 1998), cert.
denied, Boyd v. Alabama, 525 U.S. 968 (1998), and his Rule 32 petition for state
post-conviction relief was denied, see Boyd v. State, 913 So. 2d 1113 (Ala. Crim.
App. 2003), cert. denied, No. 1030438 (Ala. May 27, 2005). Boyd then sought
federal habeas corpus relief in the United States District Court for the Northern
District of Alabama. The district court denied his habeas petition; we affirmed, see
Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320 (11th Cir. 2012); and the
United States Supreme Court denied certiorari review, see Boyd v. Thomas, 133 S.
Ct. 2857 (2013).
B.
When Boyd was sentenced to death in 1995, Alabama executed inmates by
electrocution. See McNair v. Allen, 515 F.3d 1168, 1171 (11th Cir. 2008). On
July 31, 2002, however, the Alabama legislature changed the state’s method of
execution to “lethal injection, unless the person sentenced to death affirmatively
elects to be executed by electrocution.” Ala. Code § 15-18-82.1(a). The
legislature allowed inmates already under a sentence of death at that time a 30-day
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window to choose electrocution as their method of execution, after which time they
would be deemed to have waived the right to request a method other than lethal
injection. Id. § 15-18-82.1(b). The method-of-execution statute further provides
that “[i]f electrocution or lethal injection is held to be unconstitutional by the
Alabama Supreme Court under the Constitution of Alabama of 1901, or held to be
unconstitutional by the United States Supreme Court under the United States
Constitution, or if the United States Supreme Court declines to review any
judgment holding a method of execution to be unconstitutional under the United
States Constitution made by the Alabama Supreme Court or the United States
Court of Appeals that has jurisdiction over Alabama, all persons sentenced to death
for a capital crime shall be executed by any constitutional method of execution.”
Id. § 15-18-82.1(c). The statute does not prescribe any particular method of lethal
injection; the legislature left it to the Alabama Department of Corrections
(“ADOC”) to devise the policies and procedures governing lethal injection
executions, and exempted the ADOC from the Alabama Administrative Procedure
Act in exercising that authority. Id. § 15-18-82.1(g).
The ADOC has used a three-drug lethal injection protocol since it began
performing executions by lethal injection in 2002. See Brooks v. Warden, 810
F.3d 812, 823 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, 136 S. Ct. 979
(2016). Each drug in a three-drug protocol is intended to serve a specific purpose:
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the first drug should render the inmate unconscious to “ensure[] that the prisoner
does not experience any pain associated with the paralysis and cardiac arrest
caused by the second and third drugs”; the second drug is a paralytic agent that
“inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops
respiration”; and the third drug “interferes with the electrical signals that stimulate
the contractions of the heart, inducing cardiac arrest.” Baze v. Rees, 553 U.S. 35,
44 (2008) (plurality op.). The third drug in the ADOC protocol has always been
potassium chloride, and the second drug has always been a paralytic agent -- either
pancuronium bromide or rocuronium bromide. Brooks, 810 F.3d at 823.
However, the ADOC has changed the first drug in the protocol twice: From 2002
until April 2011, it used sodium thiopental as the first drug in the three-drug
sequence; from April 2011 until September 10, 2014, it used pentobarbital as the
first drug; and from September 11, 2014, until the present, it has used midazolam
hydrochloride as the first drug. Id.
C.
Boyd’s present suit is one of several challenges brought by Alabama death
row inmates pursuant to 42 U.S.C. § 1983 in the Middle District of Alabama,
alleging that Alabama’s current lethal injection protocol is unconstitutional. On
October 2, 2014, less than a month after the ADOC substituted midazolam for
pentobarbital as the first drug in the lethal injection protocol, Boyd brought suit in
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that court and, in December 2014, filed an amended complaint that alleged the
following facts. Boyd asserts that the ADOC’s switch from pentobarbital to
midazolam renders it substantially more likely that he will suffer unnecessarily
during the execution. Unlike pentobarbital, Boyd says, midazolam is “wholly
unsuitable as the first drug in a three-drug lethal injection protocol because it will
not render [him] unconscious, numb, and insensate from the administration of the
painful second and third drugs, rocuronium bromide and potassium chloride.”
Boyd also contends that the ADOC’s manner of determining whether inmates are
rendered insensate to pain by the first drug -- the “pinch test” -- is “wholly
ineffective” because, even if an inmate cannot feel a pinch, he may be able to feel
the far more painful sensations caused by asphyxiation.
Boyd further alleges that the ADOC has kept important information
concerning its lethal injection protocol secret, which prevents inmates from
seeking effective judicial review of the ADOC’s protocol. He says that the ADOC
does not ensure that the lethal injection personnel are sufficiently trained to
administer anesthesia during the execution, and that the execution team “is wholly
unprepared and inadequately trained as to constitutional execution procedures.”
Finally, Boyd alleges that the ADOC’s execution facilities are deficient because
the ADOC may not have the equipment necessary to achieve and maintain venous
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access in the event of a complication, and the physical condition of the execution
facilities is “highly questionable.”
The amended complaint asserted seven claims for relief: (I) Alabama’s
method of execution is cruel and unusual in violation of the Eighth Amendment
because midazolam will not render him sufficiently insensate to the pain caused by
the second and third drugs in the protocol; (II) Alabama’s execution squad
personnel are inadequately trained and, therefore, there is a substantial risk that
they will err during Boyd’s execution and cause him unnecessary pain and
suffering, in violation of his Eighth Amendment rights; (III) Alabama’s execution
facility is deficient, creating a substantial risk of maladministration of Boyd’s
execution in violation of his Eighth Amendment rights; (IV) the Alabama
Department of Corrections (“ADOC”) has adopted and revised processes and
procedures for carrying out executions in secret, thus preventing Boyd from
effectively being able to comment on the new procedures or challenge them in
court, in violation of his Fourteenth Amendment due process rights; (V) during his
execution, ADOC employees will fail to perform the “pinch test” to ensure that the
midazolam renders Boyd unconscious as required by Alabama’s lethal injection
protocol, which will violate his right to equal protection of the laws under the
Fourteenth Amendment; (VI) a claim for declaratory relief that Alabama’s
execution protocol is unlawful; and (VII) a claim for injunctive relief enjoining
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Alabama from executing Boyd or other inmates until the constitutional defects he
identified are remedied.
D.
The defendants moved to dismiss Boyd’s amended complaint for failure to
state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). In March 2015, the district
court entered orders staying Boyd’s suit, as well as the six other § 1983 lethal
injection cases pending before it, until after the Supreme Court issued its decision
in Glossip v. Gross, 135 S. Ct. 2726 (2015), a case concerning the constitutionality
of Oklahoma’s lethal injection protocol. Pursuant to the stay order, the district
court denied the defendants’ motion to dismiss, affording the defendants leave to
refile the motion after the Supreme Court decided Glossip.
On June 29, 2015, the Supreme Court decided Glossip, holding that, in order
to successfully challenge a method of execution, a plaintiff must plead and prove:
(1) that the proposed execution method presents a risk that is “‘sure or very likely
to cause serious illness and needless suffering,’ and give rise to ‘sufficiently
imminent dangers,’” Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 50
(plurality op.)); and (2) that there is “an alternative [method of execution] that is
‘feasible, readily implemented, and in fact significantly reduces a substantial risk
of severe pain,’” id. (alteration adopted) (quoting Baze, 553 U.S. at 52 (plurality
op.)).
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Following the Supreme Court’s decision in Glossip, the defendants renewed
their motion to dismiss Boyd’s amended complaint. During briefing on the
renewed motion, Boyd sought leave to file a second amended complaint. The
proposed amendation makes all of the same factual allegations contained in the
first amended complaint, and includes additional allegations concerning Alabama’s
execution team and potential alternative methods of execution that are available to
Alabama. Regarding the execution team, Boyd claims that a member of the team
was hospitalized in July 2015, and that in August 2015, two officers on the
execution team abruptly quit the execution team. He also proposes two
alternatives to Alabama’s current lethal injection protocol: execution by firing
squad or hanging. Boyd alleges that the legislatures in both Utah and Oklahoma
have approved the firing squad as a method of execution, and that there are no
impediments to Alabama obtaining the necessary materials for performing an
execution by firing squad. Furthermore, firing squad executions have a good track
record of “speed and certainty for the condemned.” Moreover, Boyd says, in the
alternative, Alabama could execute him by hanging, which has been approved by
state legislatures as an available method of execution in Delaware, New
Hampshire, and Washington, and which poses a lesser risk of pain than he faces
under Alabama’s current protocol. He alleges that, like these other states, the
Alabama legislature is “fully capable of” approving either firing squad or hanging
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as a method of execution. Notably, Boyd did not propose an alternative drug
cocktail that the state could use in his execution.
On October 7, 2015, the district court granted the defendants’ renewed
motion to dismiss and denied Boyd’s motion for leave to file a second amended
complaint. The court first addressed Boyd’s motion for leave to file. It determined
that the proposed second amended complaint failed to state an Eighth Amendment
method-of-execution claim in Count I because it did not propose a feasible and
readily available alternative method of execution, as it was plainly required to do
under controlling Supreme Court law. The district court determined that Boyd’s
proposed alternatives -- firing squad and hanging -- are neither feasible nor readily
available for use in Alabama because they have not been approved for use as
methods of execution by Alabama’s legislature. Moreover, the court observed,
Boyd’s allegations that execution by firing squad or hanging entail a lesser risk of
pain than Alabama’s current lethal injection protocol “are nothing more than bare-
bone legal conclusions unsupported by facts.” Therefore, the district court
concluded, Count I of the proposed second amended complaint failed to state a
method-of-execution claim and amending that claim would be futile.
The court further determined that amending the remaining six claims also
would be futile because the claims, even as amended, were barred by the statute of
limitations. Relying on this Court’s controlling precedent in McNair v. Allen, 515
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F.3d 1168 (11th Cir. 2008), and Powell v. Thomas, 643 F.3d 1300 (11th Cir.
2011), the district court observed that Boyd’s claims were subject to a two-year
statute of limitations and accrued on July 31, 2002, when Boyd became subject to
execution by lethal injection, unless there had been a “significant change” to
Alabama’s lethal injection protocol that would restart the statute of limitations
clock. The court observed that, unlike the method-of-execution challenge asserted
in Count I, Counts II and III -- challenging the training of the execution squad
personnel and adequacy of the facilities under the Eighth Amendment -- had
nothing to do with the ADOC’s switch from pentobarbital to midazolam. And, the
court said, nothing prevented Boyd from bringing these claims within two years
after he became subject to death by electrocution.
The district court similarly determined that Count IV, the due process
challenge to the secrecy of Alabama’s lethal injection protocol, accrued when the
legislature changed the method of execution in 2002 because the secrecy policy
has remained unchanged since then. Moreover, the court said, Count IV also failed
to state a due process claim under our decision in Wellons v. Comm’r, Ga. Dep’t
of Corr., 754 F.3d 1260, 1267 (11th Cir. 2014), which rejected a similar challenge
to Georgia’s secrecy statute. The district court also found that Count V -- alleging
that Boyd’s equal protection rights would be violated by the state’s failure to
adequately perform the pinch test during his execution -- was time-barred because
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Boyd did not allege any facts to establish that the claim was timely, such as by
identifying recent executions in which the state had failed to perform the pinch
test. And Counts VI and VII, seeking declaratory and injunctive relief, were
unnecessary and repetitive of the preceding claims. Thus, the district court
concluded that the proposed amendments were futile. And because the operative
amended complaint was entirely subsumed by the proposed second amended
complaint, the district court granted the defendant’s motion to dismiss and entered
final judgment in favor of the defendants.
This timely appeal followed.
II.
We review a district court’s grant of a motion to dismiss with prejudice de
novo, “accepting the [factual] allegations in the complaint as true and construing
them in the light most favorable to the plaintiff.” Mills v. Foremost Ins. Co., 511
F.3d 1300, 1303 (11th Cir. 2008) (quotation omitted). Fed. R. Civ. P. 8(a)(2)
requires that a pleading contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining
whether a complaint states a plausible claim for relief [is] . . . a context-specific
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task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
A complaint need not contain “detailed factual allegations,” but must include
enough facts “to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555 (internal citation and footnote omitted).
Moreover, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at
678. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.; see also Twombly, 550 U.S. at 555
(“[A] plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”). The Supreme Court has employed a
“two-pronged approach” in applying the foregoing principles: first, a reviewing
court should eliminate any allegations in the complaint that are merely legal
conclusions; and second, where there are well-pleaded factual allegations, “assume
their veracity and then determine whether they plausibly give rise to an entitlement
to relief.” Iqbal, 556 U.S. at 679.
We generally review a district court’s decision to deny leave to amend for
abuse of discretion, but review de novo an order denying leave to amend on the
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grounds of futility, because it is a conclusion of law that an amended complaint
would necessarily fail. Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla.,
641 F.3d 1259, 1264 (11th Cir. 2011). An amendment is considered futile when
the claim, as amended, would still be subject to dismissal. See Burger King Corp.
v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).
III.
We proceed in two parts. First, we address Boyd’s Eighth Amendment
method-of-execution claim asserted in Count I, challenging the state’s new
midazolam protocol. Then, we address whether Boyd’s remaining claims are time-
barred or otherwise fail as a matter of law. Like the district court, we analyze the
allegations in Boyd’s proposed Second Amended Complaint because, if those
allegations are insufficient as a matter of law, then so are the less thorough
allegations contained in the operative Amended Complaint.
A.
1.
For state prisoners, “[f]ederal law opens two main avenues to relief on
complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. §
2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as
amended, 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004).
The federal habeas statute allows “a person in custody pursuant to the judgment of
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a State court” to seek relief in federal court “only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). Section 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), imposes meaningful procedural
requirements on state prisoners seeking federal review of their convictions, 28
U.S.C. § 2254(b), (c), and places restrictions on a federal court’s power to grant
habeas relief, 28 U.S.C. § 2254(d). Section 1983 is a broad remedial statute that
authorizes suit against any person who, under color of state law, “subjects or
causes to be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. §
1983. Read literally, § 1983 could apply to all claims alleging constitutional
violations by inmates in state custody. However, habeas and § 1983 are “mutually
exclusive” avenues for relief, and the line of demarcation between them “is based
on the effect of the claim on the inmate’s conviction and/or sentence.” Hutcherson
v. Riley, 468 F.3d 750, 754 (11th Cir. 2006). “Simply put, if the relief sought by
the inmate would either invalidate his conviction or sentence or change the nature
or duration of his sentence, the inmate’s claim must be raised in a § 2254 habeas
petition, not a § 1983 civil rights action.” Id. “Although method-of-execution
challenges brought under § 1983 are not governed by AEDPA, they do fall at the
margins of habeas, and therefore implicate many of the same comity concerns
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AEDPA was designed to address.” McNair v. Allen, 515 F.3d 1168, 1175 (11th
Cir. 2008) (internal citation and quotation omitted).
In two cases, the Supreme Court has permitted inmates to bring method-of-
execution challenges brought pursuant to § 1983. See Nelson v. Campbell, 541
U.S. 637, 643 (2004); Hill v. McDonough, 547 U.S. 573, 580 (2006). In both
cases, the inmates challenged particular facets of the state’s intended method of
lethal injection -- in Nelson, 541 U.S. at 641–42, the plaintiff challenged the use of
a painful “cut-down” procedure to gain vein access, and in Hill, 547 U.S. at 578, it
was the adequacy of the first-drug in the protocol -- and conceded that the state
could constitutionally execute them using other methods of lethal injection that
were authorized by state law, see Nelson, 541 U.S. at 645–46; Hill, 547 U.S. at
581. Following Nelson and Hill, we have entertained method-of-execution
challenges to specific aspects of a state’s lethal injection protocol pursuant to §
1983. See, e.g., Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d 1288, 1295 (11th
Cir.), cert. denied sub nom. Jones v. Bryson, 136 S. Ct. 998 (2016); Brooks v.
Warden, 810 F.3d 812, 819 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, 136
S. Ct. 979 (2016); Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir.
2016), cert denied sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017).
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2.
The Eighth Amendment to the United States Constitution provides,
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” The prohibition against cruel and unusual
punishments protects against punishments that are “incompatible with the evolving
standards of decency that mark the progress of a maturing society” or that involve
the “unnecessary and wanton infliction of pain” on a prisoner. Estelle v. Gamble,
429 U.S. 97, 102, 104 (1976) (quotation omitted). A state’s method of executing
condemned inmates must comport with these basic principles, but the Supreme
Court “has never invalidated a State’s chosen procedure of carrying out a sentence
of death as the infliction of cruel and unusual punishment.” Glossip, 135 S. Ct. at
2732 (quotation mark omitted) (quoting Baze, 553 U.S. at 48 (plurality op.)).
The Supreme Court’s decisions in cases challenging methods of execution
have been “animated in part by the recognition that because it is settled that capital
punishment is constitutional, ‘it necessarily follows that there must be a
constitutional means of carrying it out.’” Id. (alterations adopted) (quoting Baze,
553 U.S. at 47 (plurality op.)). Debates over methods of execution involve
complex, ever-evolving scientific and medical questions, and, therefore, method-
of-execution challenges pose a risk of “embroil[ing] the courts in ongoing
scientific controversies beyond their expertise[ and] . . . substantially intrud[ing] on
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the role of the state legislatures in implementing their execution procedures -- a
role that by all accounts the States have fulfilled with an earnest desire to provide
for a progressively more humane manner of death.” Baze, 553 U.S. at 51 (plurality
op.). To mitigate this risk and to protect the “State’s legitimate interest in carrying
out a sentence of death in a timely manner,” id. at 61, the Supreme Court has
required prisoners seeking to challenge a state’s method of execution to meet a
“heavy burden,” id. at 53 (quotation omitted). Thus, in order to state an Eighth
Amendment method-of-execution claim, a plaintiff must plead facts sufficient to
establish that (1) the state’s lethal injection protocol “‘creates a demonstrated risk
of severe pain,’” and (2) there is a “known and available” alternative method of
execution that is “‘feasible, readily implemented, and in fact significantly reduces a
substantial risk of severe pain.’” Glossip, 135 S. Ct. at 2737 (alteration adopted)
(quoting Baze, 553 US. at 52, 61 (plurality op.)); see also Jones, 811 F.3d at 1294–
95; Brooks, 810 F.3d at 818–19.
As we’ve explained, in Count I, Boyd is challenging only a single aspect of
the ADOC’s current execution protocol. His sole claim is that the ADOC’s switch
from pentobarbital to midazolam as the first of three drugs has rendered the
ADOC’s protocol likely to cause a “demonstrated risk of severe pain,” Glossip,
135 S. Ct. at 2737, because midazolam is a less effective anesthetic and sedative
than pentobarbital. The appellees do not dispute that Boyd has alleged sufficient
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facts to satisfy this first element of his Eighth Amendment claim. The sole dispute
on appeal concerns the second element identified by the Supreme Court in Baze
and Glossip.
The first question we confront, then, is whether -- taking Boyd’s allegations
as true -- he has pled sufficient factual matter to make it plausible that the firing
squad and hanging are known and available methods of execution that are feasible
for use in and can be readily implemented by Alabama. Until recently, precedent
provided little guidance in answering this question because, each time this Court or
the Supreme Court had considered a method-of-execution challenge to a lethal
injection protocol, the plaintiffs proposed alternative methods of lethal injection.
Thus, for example, in Baze, the Supreme Court’s discussion of the alternative
method element focused on the “comparative efficacy” of the prisoner’s proposed
alternative lethal injection procedures, and did not discuss whether the alternatives
were feasible or readily implemented. See Baze, 553 U.S. at 56–61 (plurality op.).
And in Glossip, the Supreme Court held that the plaintiffs had failed to satisfy their
burden to identify a “known and available alternative method of execution”
because the record showed that Oklahoma had been unable to obtain the drugs
necessary for the plaintiffs’ proposed alternative single-drug execution protocol
“despite a good-faith effort to do so.” Glossip, 135 S. Ct. at 2738. Similarly, our
decisions applying this element focused on the feasibility of obtaining the drugs
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necessary for the alternative lethal injection protocols proposed by the plaintiffs.
See Jones, 811 F.3d at 1295 (finding that the plaintiff’s allegation that Georgia
could “obtain their drugs from a different source” insufficient to satisfy this
element); Brooks, 810 F.3d at 820 (finding that the plaintiff had failed to show a
substantial likelihood that pentobarbital “is available to Alabama now”);
Gissendaner v. Comm’r, Georgia Dep’t of Corr., 779 F.3d 1275, 1283 (11th Cir.)
(faulting the plaintiff for failing to plead “an alternative drug that would
substantially reduce the risks she identifies with compounded pentobarbital” as
well as “an alternative means of procuring that alternative drug”), cert. denied sub
nom. Gissendaner v. Bryson, 135 S. Ct. 1580 (2015).
In Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir. 2016),
cert denied sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017), this Court considered
for the first time a method-of-execution challenge to a lethal injection protocol that
proposed as its alternative a completely different method of execution. Thomas
Arthur challenged the use of midazolam in Alabama’s three-drug lethal injection
protocol, and proposed as alternatives single-drug protocols of compounded
pentobarbital or sodium thiopental. Id. at 1276–77. But he also sought leave to
amend his complaint to add the firing squad as an additional execution alternative.
Id. at 1277. The district court denied Arthur leave to amend, concluding that
“execution by firing squad is not permitted by [Alabama] statute and, therefore, is
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not a method of execution that could be considered either feasible or readily
implemented by Alabama at this time.” Id. We affirmed that denial; we said that
Arthur had not met his burden to show that “execution by firing squad,” which was
not authorized by statute, “[wa]s a feasible, readily implemented, and significantly
safer alternative method of execution when compared to” the authorized and
unchallenged methods of lethal injection and electrocution. Id. at 1315. We are
bound by that precedent here, and conclude that, like Arthur, Boyd has failed to
carry his burden of pleading facts sufficient to plausibly suggest that execution by
firing squad or hanging is feasible or readily implementable in Alabama.
The concurring opinion agrees that we are bound by Arthur, but believes that
case was incorrectly decided. We disagree for these reasons.
Glossip’s second prong requires that a proposed alternative method of
execution be “known and available” -- or, as the Court also puts it, “feasible[ and]
readily implemented.” See Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at
52, 61 (plurality op.)). This requirement plainly imposes real, practical limitations
on the acceptable alternative methods of execution that a prisoner can plead in
order to state a claim for an Eighth Amendment method-of-execution challenge.
“Feasible” means “capable of being done, executed, or effected.” Webster’s Third
New International Dictionary 831 (2002). And “readily” means “with fairly quick
efficiency,” “without needless loss of time,” “reasonably fast,” or “with a fair
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degree of ease.” Id. at 1889.1 Moreover, the method of execution must be feasible
and readily implemented for the state seeking to carry out the execution. See
Jones, 811 F.3d at 1295; Brooks, 810 F.3d at 820. Accordingly, for a proposed
method of execution to satisfy Glossip’s second prong, the state must be able to
implement and carry out that method of execution relatively easily and reasonably
quickly, and in a manner that “in fact significantly reduces a substantial risk of
severe pain” relative to the intended method of execution. Glossip, 135 S. Ct. at
2737 (alteration adopted quotation omitted).
Often, courts are confronted only with factual issues in addressing whether
an alternative is sufficiently feasible and readily implementable to satisfy Glossip’s
second prong -- for instance, that is generally the case when a plaintiff challenges a
state’s lethal injection protocol and proposes some modification to that protocol as
an alternative. Thus, in Glossip, the plaintiffs had alleged that Oklahoma could use
a single-drug lethal injection protocol instead of its intended three-drug protocol,
and the only question the Supreme Court asked was whether, as a matter of fact,
Oklahoma could obtain the necessary alternative drugs. See id. at 2738. But Boyd
has injected a distinct legal question into our analysis of this element (along with
factual ones) by proposing an alternative method of execution that, under present
1
Generally, “[w]ords are to be understood in their ordinary, everyday meanings.”
Alberts v. Royal Caribbean Cruises, Ltd., 834 F.3d 1202, 1204 (11th Cir. 2016) (quoting
Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012)). “To determine the ordinary
meaning of a term, courts often turn to dictionary definitions for guidance.” Castillo v. U.S.
Atty. Gen., 756 F.3d 1268, 1273 (11th Cir. 2014) (quotation omitted).
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conditions, appears unavailable to the ADOC under the state’s method of
execution statute. Considering the legal obstacles that would prevent the ADOC
from carrying out Boyd’s execution by hanging or firing squad, as well as the
many factual deficiencies in Boyd’s pleading, we have little trouble concluding
that Boyd has failed to state an Eighth Amendment claim.
For starters, neither hanging nor firing squad is a currently lawful method of
execution in Alabama. Therefore, a state trial court would be without any
authority to order Boyd to be executed by firing squad or hanging, just as the
ADOC would be without authority to execute Boyd by either method, without the
Alabama legislature fundamentally rewriting the state’s method-of-execution
statute or one of the courts named in the statute striking down as unconstitutional
either electrocution or lethal injection. See Arthur, 840 F.3d at 1316. Again,
Alabama’s method-of-execution statute allows all persons sentenced to death to
choose between two methods of execution, providing that death sentences “shall be
executed by lethal injection, unless the person sentenced to death affirmatively
elects to be executed by electrocution.” Ala. Code § 15-18-82.1(a) (emphasis
added). Only if “electrocution or lethal injection is held to be unconstitutional by
the Alabama Supreme Court . . . [or] the United States Supreme Court . . . , or if
the United States Supreme Court declines to review any judgment holding a
method of execution to be unconstitutional . . . made by the Alabama Supreme
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Court or the United States Court of Appeals that has jurisdiction over Alabama”
can the ADOC carry out Boyd’s execution by “any constitutional method of
execution.” Id. § 15-18-82.1(c). But, as the parties readily concede, neither
electrocution nor lethal injection has been declared unconstitutional by this Court,
the Alabama Supreme Court, or the United States Supreme Court. Moreover, in
this suit, Boyd brings a narrow challenge to a single aspect of Alabama’s new
lethal injection protocol and does not argue or even suggest that lethal injection is
per se unconstitutional -- in fact, the very premise of his attack on the midazolam
protocol is that it is more painful than the prior Alabama protocol using
pentobarbital. Also, notably, he does not challenge the constitutionality of death
by electrocution, or allege any facts establishing that electrocution involves a
substantial risk of severe pain. Therefore, even if we were to agree with him that
the midazolam protocol poses a substantial risk of serious harm, the ADOC would
not be able to carry out Boyd’s death sentence by hanging or firing squad without
the Alabama legislature fundamentally rewriting its method-of-execution statute.
See Arthur, 840 F.3d at 1316.
Boyd alleges, however, that, since the Oklahoma and Utah legislatures have
approved death by firing squad and the Delaware, New Hampshire, and
Washington legislatures have approved death by hanging, the Alabama legislature
could easily do the same. But Boyd “misunderstands the state’s obligation under
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the Eighth Amendment.” Id. States that continue to have capital punishment may
choose any method of execution they deem appropriate, subject only to the
constraints of the United States Constitution. Id. Boyd argues that under the
district court’s reading of the law a state could effectively negate the protections of
the Eighth Amendment simply by enacting a method-of-execution statute that
provides for only a single method of execution -- even if that method “creates a
demonstrated risk of severe pain,” Glossip, 135 S. Ct. at 2737 (quotation marks
omitted) -- thereby preventing challengers from identifying a statutorily authorized
alternative method. We rejected this argument in Arthur. See Arthur, 840 F.3d at
1317. In that case, we acknowledged that “if a state’s sole method of execution is
deemed unconstitutional, while other methods remain constitutional (even if they
are not authorized by state statute), our inquiry into whether those other options are
feasible and readily implemented would be a different one.” Id. at 1319. But,
notably, “the Alabama legislature has authorized two methods of execution --
lethal injection in any form and electrocution -- and neither of its authorized
methods has been deemed unconstitutional.” Id. at 1317–18. Even if Boyd’s
allegations about the midazolam protocol prove true, it would not entitle him to
veto the Alabama legislature’s choice as to how Alabama inmates will be executed
because there would still be other statutorily authorized (and wholly unchallenged)
methods available. “Absent a showing that Alabama’s chosen methods of
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execution present an unconstitutional risk of severe pain, Alabama is under no
obligation to deviate from its widely accepted, presumptively constitutional
methods in favor of [Boyd’s] retrogressive alternative[s].” Id. at 1318.
As we explained in Arthur, in considering whether Boyd’s proposed
alternatives are “feasible” and “readily implemented,” it is also important to note
that hanging and firing squad are vastly different methods of execution from
electrocution and lethal injection -- the only methods of execution that Alabama
has employed in the past ninety years. See id. Hanging was an available method
of execution in Alabama until 1927, when the legislature passed a statute providing
electrocution as the sole method of execution. See Bachelor v. State, 113 So. 67,
72 (Ala. 1927). And, as far as we can tell, Alabama has never carried out an
execution by firing squad or statutorily recognized it as a method for carrying out
executions.
Moreover, while it is technically true that a handful of states have authorized
executions by hanging and firing squad, lethal injection is still the primary method
of execution in each of those states, as it is in every state that allows for capital
punishment. Delaware law provides that “[p]unishment of death shall, in all cases,
be inflicted by [lethal injection].” Del. Code. tit. 11, § 4209(f). Only if lethal
injection “is held unconstitutional by a court of competent jurisdiction” does the
statute allow for execution “by hanging by the neck.” Id. Similarly, New
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Hampshire law provides that an inmate must be executed by lethal injection, and
may only be executed by hanging “if for any reason the commissioner [of
corrections] finds it to be impractical to carry out the punishment of death by
[lethal injection].” N.H. Rev. Stat. § 630:5(XIV). Washington law also provides
that executions “shall be inflicted by [lethal injection] . . . or, at the election of the
defendant, by hanging by the neck.” Wash. Rev. Code § 10.95.180(1).
Utah law provides that “lethal injection is the method of execution” for all
defendants “sentenced to death on or after May 3, 2004,” Utah Code § 77-18-
5.5(1), but allows for execution by firing squad if “a court holds that a defendant
has a right to be executed by firing squad,” id. § 77-18-5.5(2), “a court holds that
lethal injection is unconstitutional on its face” or “as applied,” id. § 77-18-5.5(3),
or “the sentencing court determines the state is unable to lawfully obtain the
substance or substances necessary to conduct an execution by lethal intravenous
injection,” id. § 77-18-5.5(4). And Oklahoma law provides for firing squad as the
quaternary option for carrying out an execution, making it available only after
execution by lethal injection, nitrogen hypoxia, and electrocution are all declared
unconstitutional. See Okla. Stat. tit. 22, § 1014. Thus, none of these states provide
for hanging or firing squad as a primary method of execution, and they generally
only make either of those methods available if certain contingencies are satisfied.
And, indeed, Boyd’s complaint does not so much as allege that any of these states
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have actually used hanging or firing squad to carry out executions. Boyd has given
us no indication of how often these methods are actually used, nor has he told us
when the last time anyone was hung or shot by an American jurisdiction. This sits
in stark contrast to the numerous executions by lethal injection that are carried out
across the country each year. The fact that a few other states could theoretically
carry out an execution by hanging or firing squad without violating their own laws
tells us nothing about whether the methods are, in fact, readily implementable for
use in actual executions in Alabama today.
The Supreme Court has recognized that requiring a state to amend its
method-of-execution statute or to authorize a variance from that statute “impos[es]
significant costs on the State and the administration of its penal system.” Nelson,
541 U.S. at 644. That is particularly true where, as here, the necessary amendment
would retreat from a method of execution that is employed by the overwhelming
majority of states that still authorize the death penalty and is widely considered the
“most humane available,” and would replace it with methods of execution that
have long been abandoned by almost every state in this country. See Baze, 553
U.S. at 62 (plurality op.). As the Supreme Court has recognized, “[t]he firing
squad, hanging, the electric chair, and the gas chamber have each in turn given way
to more humane methods[ of execution], culminating in today’s consensus on
lethal injection.” Id.; see also id. at 42 (“A total of 36 States have now adopted
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lethal injection as the exclusive or primary means of implementing the death
penalty, making it by far the most prevalent method of execution in the United
States.”); Furman v. Georgia, 408 U.S. 238, 296–97 (1972) (Brennan, J.,
concurring) (“Our practice of punishing criminals by death has changed greatly
over the years. One significant change has been in our methods of inflicting death.
Although this country never embraced the more violent and repulsive methods
employed in England, we did for a long time rely almost exclusively upon the
gallows and the firing squad. Since the development of the supposedly more
humane methods of electrocution late in the 19th century and lethal gas in the 20th,
however, hanging and shooting have virtually ceased.”). Having authorized two
unchallenged methods of execution to inmates under sentence of death, the
Alabama legislature is under no obligation to make this type of regressive change
to Alabama’s method-of-execution statute, and there is nothing offered by way of
fact in Boyd’s pleading to suggest that the ADOC could execute him by hanging or
firing squad given the current state of Alabama law. 2
2
It is also not clear that Boyd’s proposed second amended complaint contained sufficient
factual allegations to establish that the ADOC could readily carry out an execution by hanging.
See Iqbal, 556 U.S. at 678. He claims, only at the highest order of generality and without any
factual development, that hanging is feasible and readily implementable by the ADOC. He says
that the materials necessary are more easily obtained than are lethal injection drugs, but he
provides no details about how any state carries out executions at the gallows. He does not allege
that any state has actually carried out an execution by hanging, let alone has done so recently, or
that the ADOC has access to any employee or other person who would know how to effectively
carry out executions with this largely forsaken method. To be sure, it is “conceivable” that the
ADOC could acquire the necessary supplies, hire experts to develop an execution protocol for
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Boyd’s lawsuit is one of several filed by Alabama death-row inmates to
challenge Alabama’s lethal injection protocol. After Glossip was decided, other
inmates amended their complaints to allege alternative lethal injection methods of
execution that Alabama could employ, and all of their complaints survived motions
hanging, assemble an execution team that is willing to carry out the protocol, train the team to be
able to execute the protocol in an acceptably risk-free manner, and eventually carry out an
execution by hanging, but Boyd’s cursory allegations appear to fall far short of pushing his claim
“across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Boyd’s allegations
do not seem to plausibly suggest that the ADOC could readily accomplish the steps necessary to
perform an execution by hanging.
And there is good reason to think that Boyd could not plead sufficient facts to show that
hanging “‘significantly reduces a substantial risk of severe pain.’” Glossip, 135 S. Ct. at 2737
(alteration adopted) (quoting Baze, 553 US. at 52, 61 (plurality op.)). The risks of hanging,
which include strangulation and decapitation, are well known. See, e.g., Martin R. Gardner,
Executions and Indignities -- An Eighth Amendment Assessment of Methods of Inflicting
Capital Punishment, 39 Ohio St. L.J. 96 (1978):
Although hanging has become something of an art in modern times, and may well be
painless if properly performed, evidence of bungled hangings abounds: inadvertent
decapitation when victims are dropped too long; strangulation when they are dropped too
short to break their necks. Strangulation may be the rule rather than the exception.
Unconsciousness is supposedly instantaneous even when the neck is not broken, but it is
not entirely certain that this is true. If the victim is conscious, death by strangulation
must be extremely painful.
Id. at 120 (footnotes omitted); see also Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994)
(Reinhardt, J., concurring in part and dissenting in part):
There is absolutely no question that every hanging involves a risk that the prisoner will
not die immediately, but will instead strangle or asphyxiate to death. This process, which
may take several minutes, is extremely painful. Not only does the prisoner experience
the pain felt by any strangulation victim, but he does so while dangling at the end of a
rope, after a severe trauma has been inflicted on his neck and spine. Although such a
slow and painful death will occur in only a comparatively small percentage of cases,
every single hanging involves a significant risk that it will occur.
Id. at 712. “[D]raw[ing] on [our] judicial experience and common sense,” Iqbal, 556 U.S. at
679, we suspect that there are no facts Boyd could have pled regarding the risks of hanging that
would be sufficient to meet his Glossip burden.
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to dismiss and proceeded to evidentiary hearings. See, e.g., Frazier v. Thomas,
2:13-CV-781-WKW, 2015 WL 65096 (M.D. Ala. Jan. 5, 2015). Boyd has
employed a different strategy than those other plaintiffs, alleging instead that the
ADOC should employ profoundly different methods of execution that are not legal
in Alabama and that have long been abandoned by states seeking to employ the
“most humane” method of execution available, lethal injection. Baze, 553 U.S. at
62 (plurality op.). Boyd’s strategic choice left him with a steep hill to climb,
requiring him to plead sufficient facts to render it plausible that methods of
execution that are outdated, rarely (if ever) used, and beyond the ADOC’s statutory
authority could be feasible and readily implemented by the ADOC. As we see it,
Boyd’s allegations regarding death by hanging or firing squad fall far short of
meeting the pleading burden unequivocally imposed by Glossip. “Alabama has
chosen two constitutional methods of execution,” and Boyd “has not shown that
they are, or that either one is, unconstitutional (per se or as applied to him).”
Arthur, 840 F.3d at 1319. Absent making this showing, Boyd “is not entitled to
veto the Alabama legislature’s choice of two constitutional methods of execution.”
Id. Accordingly, we find that amending Count I would be futile, affirm the district
court’s denial of leave to amend, and affirm its dismissal of Boyd’s claim.
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B.
We now turn to Boyd’s remaining claims. All constitutional claims brought
under § 1983 are tort actions and, thus, are subject to the statute of limitations
governing personal injury actions in the state where the § 1983 action has been
brought. See Wallace v. Kato, 549 U.S. 384, 387 (2007). Alabama law creates a
two-year statute of limitations for personal injury actions. See Ala. Code § 6-2-38.
Therefore, if any of Boyd’s claims accrued prior to October 2, 2012 -- two years
prior to the date he filed this lawsuit -- they are time barred by the statute of
limitations. The statute of limitations is an affirmative defense, so “a Rule 12(b)(6)
dismissal on statute of limitations grounds is appropriate only if it is apparent from
the face of the complaint that the claim is time-barred.” La Grasta v. First Union
Sec., Inc., 358 F.3d 840, 845–46 (11th Cir. 2004) (quotation omitted).
In McNair v. Allen, we addressed when a method of execution challenge
under § 1983 accrues. Applying the general principle that “a federal claim accrues
when the prospective plaintiff knows or has reason to know of the injury which is
the basis of the action,” we considered four possible dates on which a method-of-
execution claim could accrue: (1) the date the defendant’s death sentence became
final; (2) the date that Alabama enacted its new lethal injection protocol; (3) the
date the denial of the defendant’s federal habeas petition became final; or (4) the
day of the defendant’s execution, “when the ultimate injury will occur.” McNair,
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515 F.3d at 1173–74 (quotation omitted). We rejected the day of the execution as
the accrual date because, for § 1983 claims seeking prospective relief from a future
injury, a claim accrues when the litigant knows, or should have known, all of the
facts necessary to pursue a cause of action, and death-sentenced inmates plainly
know enough to challenge the state’s method of execution well before their
execution date. Id. at 1174–75. And we rejected the completion of federal habeas
review as the start date as well, since delaying accrual until that date “would
provide capital defendants with a means of delaying execution even after their
sentences have been found lawful by both state and federal courts,” id. at 1175, and
would “diminish the interest of states and crime victims ‘in the timely enforcement
of a sentence,’” id. at 1776 (quoting Hill, 547 U.S. at 584).
We held that a method of execution claim will ordinarily accrue on the “date
on which a litigant’s death sentence becomes final following direct appeal” for the
following reasons:
First, by requiring a defendant to wait to bring a claim after direct
review is complete (as opposed, say, to when the sentence is first
imposed), we ensure claims are not brought prematurely, before state
courts have had an adequate opportunity to correct any infirmities in
the defendant’s conviction or sentence. Second, by requiring a claim
to be brought within two years of the completion of state review, we
guarantee defendants’ constitutional challenges to the method of their
execution can be fully adjudicated and at the same time protect states
from unnecessary interference in carrying out their judgments.
Finally, selecting the completion of direct appeal as the moment a §
1983 claim accrues has the added benefit of mirroring the time at
which a defendant’s habeas limitations period begins to run, see 28
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U.S.C. § 2244(d)(1)(A), thereby simplifying the postconviction
labyrinth of filing deadlines through which capital litigants must
navigate.
Id. at 1176–77. However, if there is a “significant change in the state’s execution
protocol” after the inmate’s death sentence becomes final on direct appeal, the
inmate has a new Eighth Amendment claim that accrues on the date of that
significant change. Id. at 1177.
Thus, it is now well established 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.” Id. at 1174; see also, e.g., Gissendaner, 779 F.3d at 1280; Wellons, 754
F.3d at 1263, cert. denied sub nom. Wellons v. Owens, 134 S. Ct. 2838 (2014);
Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011); DeYoung v. Owens, 646
F.3d 1319, 1325 (11th Cir. 2011). However, a substantial change to a state’s lethal
injection protocol doesn’t create an open season on all aspects of the state’s
protocol. Rather, “a claim that accrues by virtue of a substantial change in a state’s
execution protocol is limited to the particular part of the protocol that changed.”
Gissendaner, 779 F.3d at 1280–81. “In other words, a substantial change to one
aspect of a state’s execution protocol does not allow a prisoner whose complaint
would otherwise be time-barred to make a ‘wholesale challenge’ to the State’s
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protocol.” Id. at 1281. “[W]hether a significant change has occurred in a state’s
method of execution is a fact dependent inquiry.” Wellons, 754 F.3d at 1263.
Boyd’s conviction became final in 1998, when the United States Supreme
Court denied certiorari review of his state direct appeal. See Boyd, 525 U.S. at
968; see also Pugh v. Smith, 465 F.3d 1295, 1299 (11th Cir. 2006). The statute of
limitations for Boyd’s method-of-execution claims had not yet began to run on that
date because Alabama did not adopt lethal injection as its primary method of
execution until July 31, 2002. Therefore, Boyd’s constitutional challenges to
execution by lethal injection “accrued on July 31, 2002, absent a later ‘significant
change’ in the state execution protocol.” Powell, 643 F.3d at 1304. We find that
Boyd’s claims asserted in Counts II through V of his proposed second amended
complaint are barred by the statute of limitations and, therefore, affirm the district
court’s determination that amending them would be futile.
In Count II, Boyd alleges that the ADOC’s lethal injection protocol subjects
him to a substantial risk of serious harm in violation of the Eighth Amendment
because the officers who will carry out his execution are inadequately trained to
establish an appropriate “plane of anesthesia” throughout the lethal injection
process. In Count III, Boyd alleges that the ADOC’s execution facilities have
deteriorated and that the ADOC lacks certain necessary equipment, and that these
deficiencies create a substantial risk that his execution will not be carried out
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properly in violation of the Eighth Amendment. Boyd readily concedes that
Counts II and III are unrelated to the adoption of the new midazolam protocol, but
argues that they are timely anyway because they relate to the present training of the
execution team and the current condition of the ADOC’s facilities, each of which
has substantially changed within two-years prior to filing his complaint. We
remain unpersuaded.
In support of Count II, Boyd makes several allegations about seemingly
longstanding facets of the ADOC lethal injection protocol. For example, he
alleges that the ADOC’s protocol is unconstitutional because the ADOC fails to
“adequately ensure that the individuals responsible for inducing and maintaining
unconsciousness are credentialed, licensed and proficient in the knowledge, skills,
and procedures necessary to establish an appropriate plane of anesthesia
throughout the lethal injection process.” He makes no claim that the ADOC has
recently altered its training and credentialing requirements for members of its
execution team. Similarly, he alleges generally that the ADOC doesn’t have any
guidelines in place for the execution team to rely on in exercising its discretion
during the execution process, but does not say that this is the result of any change
to the ADOC’s lethal injection practices that have been in place since 2002.
Because these allegations relate to aspects of (or deficiencies in) the ADOC’s
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lethal injection protocol that have been in place since July 2002, Boyd’s claim that
they violate the Eighth Amendment is time barred.
Boyd also alleges that recent changes in the composition of the ADOC’s
execution team render it unprepared to perform his execution. Boyd says that, over
the course of three years, the execution team lost three members and has not
performed enough training exercises. Even taking these allegations as true and
drawing all reasonable inferences therefrom, we do not think that Boyd has said
enough to plead a “significant change” in the ADOC’s execution protocol. Indeed,
apart from the alleged fact that the ADOC does not adequately train its execution
team -- which, as we just explained, is time-barred from challenge -- Boyd
provides no reason to think that the ADOC has not hired new team members or
that these new members will be any less fit to carry out an execution than the
officers they’re replacing. To allow each instance of employee turnover in a
state’s execution team to create a new Eighth Amendment violation would render
the “significant change” requirement meaningless. We agree with the district court
that Count II was time barred.
In support of Count III, Boyd again offers general allegations about the
conditions of the ADOC’s execution facilities and the dearth of necessary
equipment, as well as more specific claims about recent changes in the conditions
of the facilities and equipment. Thus, for example, he alleges that the ADOC has
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not demonstrated that it has the equipment necessary to achieve and maintain
venous access in the event of a complication during his execution. This, again, is a
general allegation that is not related to any change in the ADOC’s protocol,
facilities, or equipment and, therefore, is time-barred from challenge. Boyd also
alleges that, “[s]hortly before” the new midazolam protocol was announced,
“reports indicate[d]” that the ADOC’s execution chamber was in poor condition
and had suffered water damage, and that the equipment in the chamber was moved
out of place and may have been damaged. But, apart from the conclusory
allegation that these conditions are “insufficient for performing a constitutional
execution,” Boyd provides no allegations to support the inference that water
damage to the execution chamber or possible damage to certain unspecified
equipment renders it substantially more likely that his execution will be
unnecessarily painful. Because Boyd became subject to death by lethal injection in
the William C. Holman execution chamber when the legislature amended the
method of execution in July 2002, see Ala. Code § 15-18-82, and has not provided
sufficient factual allegations to show that there has been a constitutionally
significant change to the quality of those facilities since that time, we find Count
III to be time barred as well.
In Count IV, Boyd alleges that the ADOC’s secrecy surrounding its lethal
injection protocol violates his right to due process of law because it deprives him
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of the information necessary to effectively enforce his Eighth Amendment rights in
court. He also alleges that the ADOC’s ability to amend the protocol without
affording him and other death row inmates notice and an opportunity to challenge
the proposed amendments violates due process. As we see it, Boyd’s secrecy
claim is time-barred because the ADOC’s protocol has been protected by the same
secrecy since the Alabama legislature enacted lethal injection as its method of
execution on July 31, 2002.3 See Powell, 643 F.3d at 1305 (finding time-barred
plaintiff’s claim that “his rights under the Eighth and Fourteenth Amendments
were violated because Alabama’s private execution protocol was changed secretly
and without any oversight” because “Powell could have challenged the ADOC’s
‘secrecy’ surrounding the method of execution beginning July 31, 2002, as the
facts supporting this cause of action ‘should have been apparent to any person with
a reasonably prudent regard for his rights’”) (quoting McNair, 515 F.3d at 1177).
Boyd argues that this claim did not accrue until the new midazolam policy was
announced, but his due process claim is not in any way “limited to the particular
part of the protocol that changed.” Gissendaner, 779 F.3d at 1280–81. Indeed, his
complaint avers that “the type and dosage of the [ ] drugs used” in the protocol is
one of the few pieces of information that Alabama does not keep secret -- so this
3
The parties do not point to any rule or regulation that requires that the ADOC keep its
lethal injection protocol confidential. The “secrecy” Boyd seeks to challenge stems from the fact
that, under the July 31, 2002 method-of-execution statute, the ADOC’s execution protocols are
exempt from the notice and comment requirements of the Alabama Administrative Procedure
Act in exercising that authority. See Ala. Code. § 15-18-82.1(g).
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claim on its face does not pertain to those drugs or their replacements. Boyd
instead challenges other aspects of Alabama’s execution protocol -- secrecy and
the ability to amend the protocol without affording inmates an opportunity to
comment on proposed changes -- that have been in place since lethal injection was
adopted as Alabama’s method of execution on July 31, 2002. See Powell, 634
F.3d at 1305.4
In Count V, Boyd alleges that there is a substantial risk that the ADOC
execution team will treat him differently from other inmates by failing to perform a
“pinch test” on him during his execution, which will make it more likely that he
will be conscious when he is injected with the painful second and third drugs in the
protocol and will deny him equal protection of the laws under the Fourteenth
Amendment. We find this claim to be time-barred as well. Boyd does not allege
that the pinch test is a new component of the lethal injection protocol, nor does he
contend that some recent change to the protocol has rendered the consciousness
test less reliable. While he says that the state failed to perform a pinch test on
4
The district court also held that Boyd’s secrecy claim fails as a matter of law under our
decision in Wellons, 754 F.3d at 1267, where we held that inmates do not have a “broad right to
know where, how, and by whom the lethal injection drugs will be manufactured, as well as the
qualifications of the persons who will manufacture the drugs, and who will place the catheters.”
Our holding in Wellons and subsequent cases, see, e.g., Jones, 811 F.3d at 1292–94, plainly bars
Boyd’s claim that he has a due process right to know the details of Alabama’s execution protocol
so he can challenge that protocol in court. However, Boyd’s due process claim arguably has a
distinct component -- challenging the lack of notice and comment afforded to inmates prior to
amending Alabama’s execution protocol -- that we have never squarely addressed. Since our
decision in Powell makes clear that Boyd’s due process claim is untimely, we need not and do
not decide whether it is also fails to state a claim for a due process violation.
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Eddie Powell prior to injecting him with the second and third drugs in the protocol,
Powell’s execution was in 2011, more than two years before Boyd filed his
complaint. See Arthur v. Thomas, 674 F.3d 1257, 1263 (11th Cir. 2012).
Therefore, Boyd concedes that the pinch test and any associated risk was part of
the execution protocol more than two years before he filed his complaint.
Even so, Boyd argues that his equal protection claim is timely because he is
challenging an “ongoing circumstance” that constitutes a “continuing violation” of
his right to equal protection of the laws, and that his cause of action will not accrue
until the alleged unlawful conduct ceases. However, this Court has already
rejected that argument in McNair, where we recognized that a method-of-execution
challenge is seeking prospective relief against a future injury, 515 F.3d at 1174, but
nevertheless held that the cause of action accrues (and the statute of limitation
begins to run) when “the facts which would support a cause of action should have
been apparent to any person with a reasonably prudent regard for his rights,” id. at
1177. We are bound by that prior decision, see Smith v. GTE Corp., 236 F.3d
1292, 1300 n.8 (11th Cir. 2001), and we agree with the district court that this
claim, too, is untimely. 5
5
On appeal, Boyd does not challenge the district court’s dismissal of Counts VI and VII,
seeking declaratory and injunctive relief.
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C.
While Boyd’s case was pending on appeal, the Supreme Court decided Hurst
v. Florida, 136 S. Ct. 616 (2016), holding that Florida’s capital sentencing scheme
ran afoul of the Sixth Amendment right to a jury trial because it enabled a judge to
increase the maximum authorized penalty from life imprisonment to death “based
on her own factfinding.” Id. at 622. For the first time on appeal in this Court,
Boyd argues that Alabama’s capital sentencing scheme suffers from the same
infirmity, and asks that we reform Alabama’s capital sentencing scheme to comply
with Hurst. We understand Boyd to be arguing that his death sentence is
unconstitutional based on the Supreme Court’s Hurst decision. We will not
consider this claim because we have “repeatedly held that ‘an issue not raised in
the district court and raised for the first time in an appeal will not be considered by
this court.’” Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994) (quoting
Depree v. Thomas, 946 F.2d 784, 793 (11th Cir. 1991)).
Moreover, Boyd’s Hurst claim plainly falls within the province of habeas
corpus and cannot be brought pursuant to § 1983. Habeas and § 1983 are
“mutually exclusive” avenues for relief; if a claim can be raised in a federal habeas
petition, Ҥ 1983 must yield to the more specific federal habeas statute, with its
attendant procedural and exhaustion requirements.” Nelson v. Campbell, 541 U.S.
637, 643 (2004). This requirement is consonant with the “explicit congressional
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intent” that prisoners whose claims fall within the “core” of habeas corpus not be
able to “evade [its] requirement[s] by the simple expedient of putting a different
label on their pleadings.” Preiser v. Rodriguez, 411 U.S. 475, 489–90 (1973). The
line of demarcation between habeas and § 1983 “is based on the effect of the claim
on the inmate’s conviction and/or sentence.” Hutcherson, 468 F.3d at 754. By
arguing that the death sentence he received is unconstitutional in light of
Alabama’s capital sentencing scheme, Boyd undeniably seeks to “invalidate his . . .
sentence or change the nature or duration of his sentence,” and so this claim “must
be raised in a § 2254 habeas petition, not a § 1983 civil rights action.” Id.
The long and short of it is Boyd’s proposed second amended complaint falls
well short of plausibly pleading an alternative method of execution that is feasible,
readily implemented, and in fact significantly less risky or painful than ADOC’s
current three-drug midazolam protocol and, therefore, fails to state a claim for an
Eighth Amendment violation regarding the new protocol. The remainder of
Boyd’s claims are untimely as they were filed well beyond the two-year statute of
limitations that govern § 1983 claims in Alabama. Accordingly, we affirm the
district court’s determination that granting Boyd leave to amend his complaint
would be futile, and affirm its dismissal of Boyd’s suit.
AFFIRMED.
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WILSON, Circuit Judge, concurring in judgment:
Arthur1 is binding law in this circuit, and under that precedent, we must
dismiss Anthony Boyd’s method-of-execution claim and ancillary due process
claim. However, I dissented in Arthur and continue to believe it was wrongly
decided. But for Arthur, I would reverse the district court’s dismissal of Boyd’s
method-of-execution and due process claims. I write separately to explain why,
and to note that much of the Majority opinion is dicta with which I disagree.
I. METHOD-OF-EXECUTION CLAIM
The Majority affirms the dismissal of Boyd’s method-of-execution claim
based on the finding that Boyd has not sufficiently alleged an execution alternative.
Boyd proposes death by firing squad as an execution alternative, but the Majority
correctly determines that, under Arthur, § 15-18-82.1 of the Alabama Code
precludes Boyd from relying on the firing squad as an alternative.2 The Majority
however does not end its analysis of Boyd’s method-of-execution claim with
Arthur’s dispositive finding—it continues to discuss the claim for several pages.
See Maj. Op. at 23–34. That unnecessary discussion of the claim is non-binding
dicta. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010)
(stating that dicta is language in an opinion “not necessary to the decision”);
1
Arthur v. Comm’r, Ala. Dept. of Corrs., 840 F.3d 1268 (11th Cir. 2016), cert. denied
sub nom. Arthur v. Dunn (Arthur II), 580 U.S. ___, 137 S. Ct. 725 (2017).
2
Boyd relies on hanging as another execution alternative, but Arthur forecloses that
alternative as well.
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Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“[D]icta is not
binding on anyone for any purpose.”). And in that dicta the Majority suggests that
Boyd’s claim fails not only because of § 15-18-82.1 but also because Boyd’s
allegations are insufficient to support a finding that the firing squad is a practicable
execution alternative in Alabama.
As I discussed in my Arthur dissent, I do not believe that § 15-18-82.1
precludes claimants like Boyd from relying on death by firing squad. Arthur, 840
F.3d at 1321–33 (Wilson, J., dissenting). Also, I disagree with the Majority’s
suggestion that Boyd’s allegations about the firing squad are insufficient. But for
Arthur, I would allow Boyd to proceed to discovery on his method-of-execution
claim.
A. Arthur was wrongly decided.
In concluding that § 15–18–82.1 forecloses method-of-execution claims that
rely on death by firing squad as an execution alternative, our decision in Arthur
promulgated a startling holding: that state legislation can thwart constitutional
claims for relief from cruel and unusual punishment. See id. at 1327–28. In my
view, that holding is deeply flawed and Arthur was wrongly decided. But rather
than revisit why I believe the holding is flawed, I defer to my Arthur dissent and
limit my discussion to developments subsequent to Arthur that further lament the
holding. In the short time since Arthur was decided, two Supreme Court justices
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have expressed reservations about the holding; a court of appeals judge has penned
a concurrence that highlights the tension between the holding and the Eighth
Amendment; a district court judge has disagreed with the holding; and at least one
circuit court has departed from the holding, creating a circuit split.
Justice Sotomayor, joined by Justice Breyer, dissented to the denial of
certiorari in Arthur, and in the dissent, the Justices voiced serious concerns about
this court’s holding in the case. Our decision in Arthur, the Justices found,
“contradicts the very decisions it purports to follow—Baze and Glossip”;3 violates
the Supremacy Clause “by conditioning federal constitutional rights on the
operation of state statutes”; and risks inconsistent application of the Constitution
since, under the decision, whether a prisoner can obtain method-of-execution relief
“depends not on the Constitution but on vagaries of state law.” See Arthur II, 137
S. Ct. at 729–30 (Sotomayor, J., joined by Breyer, J., dissenting from denial of
certiorari). What’s more, the Justices found that the Arthur holding jeopardizes the
“ongoing national conversation . . . around the methods of execution the [Eighth
Amendment] tolerates.” Id. at 731. That constitutionally required conversation
takes place through a dialectic exchange between courts and legislatures in which
courts examine evolving standards of decency and apply those standards to state-
execution practices. See id. at 731–33. The Justices determined that Arthur, by
3
Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008); Glossip v. Gross, 576 U.S. ___, 135
S. Ct. 2726 (2015).
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finding that state legislation can thwart method-of-execution claims, empowers
states to “silence” that conversation. See id.
Shortly after certiorari was denied in Arthur, Judge Stranch of the Sixth
Circuit Court of Appeals cited Justice Sotomayor and Justice Breyer’s dissent in a
concurrence that calls attention to the tension between our holding in Arthur and
the Eighth Amendment. See In re Ohio Execution Protocol, 853 F.3d 822, 846–47
(6th Cir.) (Stranch, J., concurring), vacated for reh’g en banc, ___ F.3d ___ (6th
Cir. Apr. 25 2017). The concurrence highlights the constitutional dilemma posed
by a holding like Arthur’s that allows states to muzzle the national conversation
about the death penalty.
Judge Stranch stressed that the Eighth Amendment requires “a continuing
dialogue” between courts, legislatures, and the American people “on the meaning
of the Amendment’s prohibition on cruel and unusual punishments.” See id.
“[T]he meaning of th[e] prohibition is derived from the evolving standards of
decency that mark the progress of a maturing society,” and without a continuing
dialogue, courts cannot fulfill their duty under the Eighth Amendment to identify,
clarify, and enforce those standards. See id. (internal quotation marks omitted).
Pointing to recent developments in our society that bear on the death penalty
and evolving standards of decency, Judge Stranch deftly illustrated this point.
Judge Stranch noted that countless drug companies in recent years have refused “to
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sell execution drugs” and that this development may evidence “changing societal
attitudes toward the death penalty and a conclusion . . . that the business in which
drug companies engage, selling drugs that improve health and preserve life, is not
consistent with selling drugs that are used to put people to death.” Id. at 846. She
also noted that a “2015 survey found that a majority of Americans prefer life
without parole over the death penalty for people convicted of murder” and that the
survey “matches polling in 2016 finding that public support for the death penalty
has dropped below 50%, to its lowest level in 45 years.” Id. at 847. Absent a
continuing dialogue among courts, legislatures, and the American people that takes
into account these types of developments, our jurisprudence and state-execution
practices would inevitably become divorced from evolving standards of decency.
See Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 2036 (2010) (Stevens, J.,
concurring) (“Society changes. Knowledge accumulates. We learn, sometimes,
from our mistakes. Punishments that did not seem cruel and unusual at one time
may, in the light of reason and experience, be found cruel and unusual at a later
time . . . .”).
Following Judge Stranch’s concurrence, Judge Baker of the District Court
for the Eastern District of Arkansas issued an order further calling into question
our court’s holding in Arthur. In granting a preliminary injunction to halt a series
of Arkansas executions, Judge Baker disagreed with the holding. McGehee v.
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Hutchinson, No. 17-00179, slip op. at 80 (E.D. Ark.), vacated on other grounds by
McGehee v. Hutchinson (McGehee II), ___ F.3d ___, No. 17-1804 (8th Cir.) (en
banc), cert. denied, 581 U.S. ___, No. 16-8787 (Apr. 20, 2017). She found “that
the Eleventh Circuit’s limitation [in Arthur] of alternative methods [of execution]
to those presently permitted under state law finds no textual basis in Baze or
Glossip.” See id.
Although the Eighth Circuit Court of Appeals, sitting en banc, vacated Judge
Baker’s preliminary injunction, it agreed with Judge Baker’s departure from the
Arthur holding: “[W]e disagree with the legal standard that the district court
applied in determining whether alternative methods of execution are known and
available. [However, w]e do not say that an alternative method must be authorized
by statute or ready to use immediately . . . .” See McGehee II, slip op. at 6.
These critiques of our decision in Arthur underscore its serious flaws. I
suspect that as time passes the body of jurisprudence casting doubt on Arthur will
only continue to grow.
B. Boyd’s allegations are sufficient.
Boyd is entitled to proceed to discovery if his complaint includes allegations
sufficient to support a reasonable inference that death by firing squad (1) is
“feasible [and] readily implemented” and (2) “significantly reduces a substantial
risk of severe pain.” See Glossip, 135 S. Ct. at 2737 (internal quotation marks
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omitted); Baze, 553 U.S. at 52, 128 S. Ct. at 1532 (plurality opinion); Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). In considering whether
Boyd’s allegations satisfy these requirements, we must accept the allegations as
true. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. We must also “draw on [our]
judicial experience and common sense” and take into account the specific
“context” surrounding the firing squad. See id. at 679, 129 S. Ct. at 1950; Roe v.
Michelin N. Am., Inc., 613 F.3d 1058, 1062 n.5 (11th Cir. 2010) (“[A] district court
must examine a claim’s context and draw on the court’s judicial experience and
common sense, when evaluating whether a complaint sufficiently pleads a
claim . . . .” (internal quotation marks omitted) (emphasis in original)).
Boyd alleges:
Both Utah and Oklahoma use or could use the firing
squad, which makes it a known alternative. Use of a
firing squad based on an existing protocol from one of
these states is “available” because there are no
impediments to obtaining the required materials, as there
may be for lethal injection drugs. [Alabama] h[as]
represented that [certain alternative lethal injection drugs]
are not “available,” and the same cannot be said for the
materials required for a firing squad execution. For
instance, Utah’s protocol contemplates five trained
shooters, four of whose guns are loaded and the fifth
loaded with a non-lethal wax bullet. Both of these other
states evaluated and approved the firing squad as a
method of execution through the legislative process, as
states, including [Alabama] are fully capable of doing.
Use of a firing squad, a known and available alternative
based on one of these other states’ protocols, would entail
a lesser risk of pain than the substantial risk of severe
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pain Mr. Boyd faces under Alabama’s existing protocol.
This is so even though firing squad execution—while
more unpleasant to observe than lethal injections, and
while described as “barbaric”—are viewed as having a
record of relative speed and certainty for the condemned,
whose constitutional rights are actually at stake.
If we set aside Arthur, these allegations—viewed through the lens of judicial
experience, common sense, and the context surrounding death by firing squad—are
sufficient to support a “reasonable inference” that the firing squad satisfies the
requirements of Baze and Glossip. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
1. Boyd’s allegations support a reasonable inference that the firing squad is
feasible and readily implemented.
The context specific to death by firing squad provides an important backdrop
for our analysis of whether Boyd has sufficiently alleged that the firing squad is
feasible and readily implemented. See id. at 679, 129 S. Ct. at 1950; Roe, 613 F.3d
at 1062 n.5. “[D]rawing on our judicial experience and common sense,” Iqbal,
556 U.S. at 679, 129 S. Ct. at 1950, we know that the firing squad is a
straightforward, well-known procedure that has been performed for centuries, see
Baze, 553 U.S. at 42, 48, 128 S. Ct. at 1526, 1530; Glossip, 135 S. Ct. at 2732,
2739; Wilkerson v. Utah, 99 U.S. 130, 134–36 (1878) (holding that death by firing
squad is constitutional and noting that in the nineteenth century the military
“commonly” used the firing squad); Guardian News & Media LLC v. Ryan, ___
F. Supp. 3d ___, No. 14-02363, slip op. at 18 (D. Ariz. Dec. 21, 2016) (referring to
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the firing squad as a “still-used historical execution technique[]”). We also know
that the materials necessary for the firing squad—guns and bullets—are abundant.
Finally, we know that Alabama has ready access to guns, bullets, and personnel
who are trained in firearms because Alabama is a modern militarized state with a
national guard, a department of corrections, and a police force.
Considering this context and taking Boyd’s allegations as true, the
allegations support a reasonable inference that death by firing squad is “known and
available,” which means the allegations support a reasonable inference that the
firing squad is feasible and readily implemented. See Baze, 553 U.S. at 61,
128 S. Ct. at 1537 (equating “feasible and readily implemented” with “known and
available” when articulating the standard for method-of-execution claims);
Glossip, 135 S. Ct. at 2737–38 (same).
First, the firing squad itself, the possible procedures for administering the
firing squad, and the materials and personnel needed to perform the firing squad
are clearly “known.” The long history of the firing squad and the straightforward
process for implementing the firing squad compel this conclusion.
Second, Boyd’s allegations make plausible his claim that the firing squad is
available to Alabama. Boyd alleges that Utah and Oklahoma use or could use the
firing squad4 and that no impediments exist to Alabama employing the firing squad
4
Bolstering this allegation, Utah successfully carried out a firing-squad execution as
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in a manner similar to those states’. Given that Alabama, like Utah and Oklahoma,
is a modern militarized state with the death penalty, that allegation is plausible.
See Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir.) (Kozinski, J., dissenting from
denial of rehearing en banc) (“There are plenty of people employed by [a] state
who can pull the trigger [for a firing-squad execution] and have the training to aim
true. [And t]he weapons and ammunition are bought by the state in massive
quantities for law enforcement purposes.”), vacated, 135 S. Ct. 21 (2014). A
conclusion to the contrary would strain credulity. Firing-squad executions were
carried out in this country as early as the nineteenth century. See Wilkerson, 99
U.S. at 134–36. Surely Alabama has the capacity in the age of drones and space
travel to assemble a firing squad, especially considering that Alabama could look
to Utah and Oklahoma for assistance. See Watts v. State of Ind., 338 U.S. 49, 52,
69 S. Ct. 1347, 1349 (1949) (plurality opinion) (“[T]his Court should not be
ignorant as judges of what we know as men.”). Indeed, Alabama has been able to
assemble the equipment, personnel, and protocols needed for lethal injection—a
much more complicated procedure than the firing squad.
2. Boyd’s allegations support a reasonable inference that the firing squad
significantly reduces a substantial risk of severe pain.
recently as 2010—a fact of which judicial notice can be taken at this stage in the proceedings.
See Fed. R. Evid. 201(b), (d).
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Boyd extensively alleges that Alabama’s current execution method—lethal
injection using midazolam—poses a substantial risk of severe pain, and Alabama
does not dispute the sufficiency of those allegations.5 Accordingly, if Boyd has
sufficiently alleged that death by firing squad does not involve such a risk, his
allegations support a finding that the firing squad significantly reduces a
substantial risk of severe pain. He has done exactly that.
Boyd pleads that death by firing squad poses minimal risk of pain because it
is a certain, speedy method of execution. Taking into account judicial experience
and common sense, that allegation is plausible. The Supreme Court has remarked
that “there is some reason to think that [the firing squad] is relatively quick and
painless.” See Glossip, 135 S. Ct. at 2739 (internal quotation marks omitted); id.
at 2797 (Sotomayor, J., dissenting) (“[F]rom a condemned inmate’s perspective,
. . . [the] relatively painless violence [of death by firing squad] may be vastly
preferable to an excruciatingly painful death hidden behind a veneer of [lethal
injection drugs.]”). Similarly, Judge Kozinski of the Ninth Circuit Court of
Appeals has recognized that a firing-squad execution limits a prisoner’s risk of
pain. See Wood, 759 F.3d at 1103 (Kozinski, J., dissenting from denial of
rehearing en banc) (“The firing squad strikes me as the most promising [method of
5
Alabama would likely have difficulty challenging Boyd’s allegations given that
“[s]cience and experience are now revealing that, at least with respect to midazolam-centered
protocols, prisoners executed by lethal injection are suffering horrifying deaths . . . .” See
Arthur II, 137 S. Ct. at 733 (Sotomayor, J., joined by Breyer, J., dissenting from denial of
certiorari).
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execution]. . . . [L]arge-caliber rifle bullets fired at close range can inflict massive
damage, causing instant death every time.”).6
II. DUE PROCESS CLAIM
The Majority also dismisses Boyd’s due process claim, finding that the
claim is time barred. See Maj. Op. at 41–42. I do not believe the claim is time
barred, but I agree with the Majority’s ultimate determination that the claim is
subject to dismissal.
Because Boyd’s method-of-execution claim is timely, see id. at 3, so is his
due process claim. The same two-year limitations period governs both claims, and
the claims accrued at the same time. Boyd argues that the secrecy surrounding
Alabama’s execution protocol violates his due process rights because the secrecy
denies him a fair opportunity to pursue his method-of-execution claim. Boyd’s due
process claim is therefore ancillary to his method-of-execution claim, 7 and it did
6
Moreover, a number of scholars have opined that states should turn to death by firing
squad because, among other things, it is a relatively quick and painless method of execution.
See, e.g., Deborah W. Denno, The Firing Squad As “A Known and Available Alternative Method
of Execution” Post-Glossip, 49 U. Mich. J. L. Reform 749, 792–93 (2016); Alexander Vey,
Note, No Clean Hands in A Dirty Business: Firing Squads and the Euphemism of “Evolving
Standards of Decency”, 69 Vand. L. Rev. 545, 575–78 (2016); Kristen Loveland, Note, Death
and Its Dignities, 91 N.Y.U. L. Rev. 1279, 1313 (2016); P. Thomas Distanislao, III, Note, A Shot
in the Dark: Why Virginia Should Adopt the Firing Squad As Its Primary Method of Execution,
49 U. Rich. L. Rev. 779, 805 (2015).
7
Citing Wellons v. Commissioner, Georgia Department of Corrections, 754 F.3d 1260
(11th Cir. 2014) (per curiam), and Jones v. Commissioner, Georgia Department of Corrections,
811 F.3d 1288 (11th Cir. 2016), the Majority suggests that Boyd has not stated a valid due
process claim because a prisoner does not have a standalone right to know the details of his
state’s method of execution. See Maj. Op. at 42 n.2. However, Boyd’s due process claim
includes allegations that Alabama’s “secrecy policy” infringes his opportunity to litigate his
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not accrue until the method-of-execution claim accrued. Boyd’s due process right
to be afforded “an opportunity . . . to substantiate [his method-of-execution] claim
before it is rejected” could not have been infringed before his method-of-execution
claim even arose. See Ford v. Wainwright, 477 U.S. 399, 414, 106 S. Ct. 2595,
2604 (1986) (plurality opinion) (internal quotation marks omitted).
Even so, we must dismiss Boyd’s due process claim since it is ancillary to,
and thus shares the fate of, his method-of-execution claim.
III. CONCLUSION
Although Arthur compels us to affirm the dismissal of Anthony Boyd’s
method-of-execution and due process claims, I continue to believe Arthur was
wrongly decided. This case highlights the tension between that decision and the
Eighth Amendment. Boyd faces a controversial method of execution—
midazolam-based lethal injection—that has resulted in botched and inhumane
executions, and he has identified a viable execution alternative. Yet because of
Arthur, Boyd cannot even access discovery.
I concur in the result only.
method-of-execution claim. The claim is not based on a standalone right to execution-related
information; the claim is ancillary to Boyd’s method-of-execution claim and implicates
established due process rights. The “elementary rights of men” require “fairness” and “[a]n
opportunity to be heard.” See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,
170–71, 71 S. Ct. 624, 647–48 (1951) (Frankfurter, J., concurring). When a state policy impairs
a prisoner’s opportunity to litigate a constitutional claim, the prisoner can challenge the policy as
part of his constitutional claim. See id. Neither Wellons nor Jones forecloses this type of
ancillary due process claim.
58