Richard Jordan v. Georgia Department of Corrections , 908 F.3d 1259 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12948
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-02582-RWS
RICHARD JORDAN,
RICKY CHASE,
Plaintiffs-Appellants,
versus
COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Defendant,
GEORGIA DEPARTMENT OF CORRECTIONS,
Movant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 19, 2018)
Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.
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PER CURIAM:
Plaintiffs Richard Jordan and Ricky Chase, Mississippi death row inmates,
served the Georgia Department of Corrections (“GDC”) with a subpoena directing
the GDC to testify at a Rule 30(b)(6) deposition and to produce documents
concerning Georgia’s lethal injection protocol. Plaintiffs argued that the testimony
and documents were necessary to support their 42 U.S.C. § 1983 claims pending in
the Southern District of Mississippi challenging the legality of Mississippi’s lethal
injection protocol. The GDC filed a motion to quash in the Northern District of
Georgia, where compliance with the subpoena was required. Accepting the
recommendation of a Magistrate Judge, the district court granted the motion to
quash. Plaintiffs appeal, arguing that the district court did not apply the correct
standard of review to the Magistrate Judge’s ruling, and also that the motion to
quash should have been denied on the merits. After careful review, we affirm.
BACKGROUND
This appeal is an offshoot of a § 1983 action filed by Plaintiffs in the
Southern District of Mississippi. Plaintiffs are Mississippi death row inmates who
have filed a § 1983 complaint in the Southern District of Mississippi in which they
challenge the constitutionality of Mississippi’s lethal injection protocol.
Mississippi’s protocol recently was changed from a single injection procedure
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using only sodium pentothal or pentobarbital to a three-drug procedure that
requires the serial injection of: (1) either compounded pentobarbital or midazolam
(a sedative/anesthetic), (2) vecuronium bromide (a paralytic), and (3) potassium
chloride (which stops the heart). According to Plaintiffs, there is a substantial risk
that neither compounded pentobarbital nor midazolam—the first drug in the
series—will sufficiently anesthetize the condemned inmate. Consequently,
Plaintiffs claim, an inmate who is injected with either drug could remain conscious
and fully sensate and thus experience suffocation when the second drug in the
series—the paralytic vecuronium bromide, which renders the inmate unable to
breathe—is administered. Compounding this issue, Plaintiffs contend, vecuronium
bromide prevents all muscular movement and thus masks the pain that potassium
chloride—the third and final drug in the series—is known to inflict in the absence
of adequate anesthesia. Plaintiffs argue that Mississippi’s three-drug lethal
injection protocol thus creates an unacceptable risk of severe and unnecessary pain,
in violation of the Eighth Amendment.
To prevail on their Eighth Amendment claims, Plaintiffs must show that
there is an alternative to Mississippi’s three-drug protocol that is both “known and
available” and that significantly reduces the risk of severe pain to the inmate. See
Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015). In an effort to meet that burden,
Plaintiffs point to alternative lethal injection protocols used by other states,
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including Georgia. The GDC has used a one-drug protocol that requires a single
injection of compounded pentobarbital in its most recent executions. Plaintiffs
argue that a single injection of pentobarbital is thus a known and available
alternative to Mississippi’s three-drug protocol, which (theoretically, at least)
reduces the risk of pain to the condemned inmate.
The Mississippi defendants 1 dispute this point, and they have asserted at
various times in the underlying § 1983 action that pentobarbital, even in its
compounded form, is unavailable for their use in executions. For example, in their
answer to Plaintiffs’ complaint, the Mississippi defendants denied that a single-
drug procedure using pentobarbital was a feasible alternative to Mississippi’s
three-drug protocol. They subsequently filed a motion to dismiss Plaintiffs’ § 1983
action under Glossip, citing the sworn testimony of Mississippi Department of
Corrections officials stating that they had tried but been unable to find a source of
pentobarbital for use in executions. In a hearing on the motion, the attorney for the
Mississippi defendants emphasized that state corrections officials had not been
able to obtain pentobarbital for use in executions in spite of a diligent search.
Plaintiffs acknowledge that pentobarbital has become difficult to acquire, at
least in part because death penalty opponents have lobbied drug manufacturers to
1
The Mississippi defendants include the Commissioner of the Mississippi Department of
Corrections and various other state officials who are involved in implementing executions in
Mississippi and who have been named in Plaintiffs’ § 1983 complaint.
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make it unavailable for use in American executions. But Plaintiffs have argued in
their § 1983 action that it must be possible to obtain pentobarbital by some means,
because states like Georgia continue to use it. Seeking evidence to shore up that
argument, Plaintiffs served the GDC with the non-party subpoena that is at issue in
this appeal. The subpoena directs the GDC to appear at a Rule 30(b)(6) deposition
and to produce documents concerning the feasibility of a one-drug lethal injection
protocol using pentobarbital, including specific details about the GDC’s source and
manner of acquiring pentobarbital.
The GDC filed a motion to quash the subpoena in the Northern District of
Georgia, arguing that the information sought in the subpoena was irrelevant to the
claims asserted in the underlying § 1983 litigation and, in any event, protected
from disclosure by Georgia’s Lethal Injection Secrecy Act and other privileges.
The motion was referred to a Magistrate Judge, who rejected the GDC’s relevancy
argument but nevertheless granted the motion to quash pursuant to the Lethal
Injection Secrecy Act. The Lethal Injection Secrecy Act precludes the disclosure
of the “identifying information” of any person or entity that participates in a
Georgia execution or that supplies the drugs used by the state in executions. See
O.C.G.A. § 42-5-36(d). The Magistrate Judge concluded that this Court’s
“expansive reading” of the Act barred the disclosure of the information sought in
the subpoena that Plaintiffs had served on the GDC.
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Plaintiffs filed objections to the Magistrate Judge’s ruling, in which they
argued that the information sought by the subpoena was not privileged, and that the
Magistrate Judge had erroneously failed to require the GDC to produce a privilege
log specifying in detail how the Lethal Injection Secrecy Act applies to each
requested document. After reviewing those objections, the district court accepted
and adopted the Magistrate Judge’s decision to quash the subpoena. First, the
district court determined that the “clearly erroneous” or “contrary to law” standard
applied to its review of the Magistrate Judge’s ruling because the motion to quash
was a non-dispositive pretrial matter. Then, emphasizing that this Court had held
numerous times that the Lethal Injection Secrecy Act precluded disclosure of
similar information to a condemned inmate, the district court concluded that the
Magistrate Judge’s ruling was neither clearly erroneous nor contrary to law.
Plaintiffs appeal, arguing that (1) the district court applied the wrong
standard of review to the Magistrate Judge’s ruling and (2) the motion to quash
should have been denied on the merits.
STANDARD OF REVIEW
We review the district court’s ruling on the GDC’s motion to quash “only
for an abuse of discretion.” In re Hubbard, 803 F.3d 1298, 1307 (11th Cir. 2015)
(citing Ariel v. Jones, 693 F.2d 1058, 1060 (11th Cir. 1982)). Thus, we will leave
the district court’s ruling on the motion “undisturbed” unless the district court has
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“made a clear error of judgment, or has applied the wrong legal standard.”
Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005);
see also SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325,
1333 (11th Cir. 1996) (noting that an abuse of discretion occurs when the district
court makes “a clear error of judgment” or applies “an incorrect legal standard”
(internal quotation marks omitted)).
DISCUSSION
I. The district court applied the correct standard of review to the
Magistrate Judge’s ruling on the motion to quash.
As discussed, the district court reviewed the Magistrate Judge’s ruling on the
motion to quash under the “clearly erroneous” or “contrary to law” standard.
According to Plaintiffs, the district court should have reviewed the Magistrate
Judge’s ruling de novo, and its failure to do so requires reversal under the Federal
Magistrate’s Act, 28 U.S.C. § 636, and Rule 72 of the Federal Rules of Civil
Procedure.
The standard of review the district court was required to apply depends on
whether we characterize the GDC’s motion to quash as a dispositive or a non-
dispositive matter. See Fed. R. Civ. P. 72. Under the Federal Magistrate’s Act, a
district court “may designate a magistrate judge to hear and determine any pretrial
matter pending before the court.” 28 U.S.C. § 636(b)(1)(A). If the matter is non-
dispositive, the district court reviews the magistrate judge’s ruling under the
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“clearly erroneous or contrary to law” standard. Id.; see also Fed. R. Civ. P. 72(a)
(“When a pretrial matter not dispositive of a party’s claim or defense is referred to
a magistrate judge to hear and decide . . . . [t]he district judge in the case must
consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.”). But if the matter is dispositive, the
district court must review any objected-to portion of the magistrate judge’s ruling
de novo. 28 U.S.C. § 636(b)(1).
The Federal Magistrate’s Act lists several examples of motions that qualify
as dispositive matters, including motions for injunctive relief, for judgment on the
pleadings, for summary judgment, to dismiss or quash an indictment, to suppress
evidence in a criminal case, to dismiss or permit maintenance of a class action, to
dismiss for failure to state a claim, and to involuntarily dismiss an action. Id. As
evidenced by the motions included in this list, a routine pretrial discovery motion,
such as the motion to quash at issue in this case, generally would not be considered
a dispositive matter. See In re Comm’r’s Subpoenas, 325 F.3d 1287, 1292 n.2
(11th Cir. 2003) (“The district court correctly observed that the standard of review
by which it reconsidered the magistrate judge’s [order quashing subpoenas] is
‘clearly erroneous or contrary to law.’” (citing 28 U.S.C. § 636(b)(1)(A))),
overruled on other grounds by Intel Corp. v. Advanced Micro Devices, Inc., 542
U.S. 241 (2004); Maynard v. Bd. of Regents of the Div. of Univ. of the Fla. Dep’t
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of Ed., 342 F.3d 1281, 1286 (11th Cir. 2003) (characterizing a magistrate judge’s
discovery rulings as non-dispositive orders, and holding that the plaintiff’s failure
to object to the rulings in the district court waived his right to appeal them).
Indeed, Plaintiffs do not dispute that if the GDC’s motion to quash had been
filed in the Southern District of Mississippi, where the underlying § 1983 action is
pending, the motion would be considered non-dispositive and a magistrate judge’s
ruling on it would be reviewed under the clearly erroneous or contrary to law
standard. Yet, Plaintiffs argue that the Magistrate Judge’s ruling on the motion to
quash filed in this particular case should be considered dispositive—and thus
reviewed under the de novo standard—because it resolves and finally disposes of
the litigation between Plaintiffs and the GDC that is pending in the Northern
District of Georgia.
We are not persuaded by this argument. The GDC’s motion to quash
required separate litigation between Plaintiffs and the GDC in the Northern District
of Georgia because the place for compliance with the subpoena, and thus the
proper venue for filing a motion to quash, was in the Northern District of Georgia.
See Fed. R. Civ. P. 45(c), (d)(3). And the Magistrate Judge’s ruling on the motion
resulted in a final disposition of the issues raised in the motion, permitting
Plaintiffs to appeal the ruling to this Court. See Ariel, 693 F.2d at 1059 (noting
that a litigant would have “no other means of effectively obtaining review” of such
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a ruling if it were not considered final for purposes of appeal). But that does not
change the essential nature of the motion to quash from a routine pretrial discovery
motion, which is ancillary to the § 1983 litigation pending in the Southern District
of Mississippi, to a dispositive matter.
In short, we find no reason to treat the Magistrate Judge’s ruling on the
GDC’s motion to quash any differently than we would treat a similar pretrial
discovery motion that was filed in the Southern District of Mississippi, where the
underlying § 1983 action is pending. As such, we conclude that the district court
correctly applied the “clearly erroneous or contrary to law” standard of review to
the Magistrate Judge’s ruling on the motion to quash. See In re Comm’r’s
Subpoenas, 325 F.3d at 1292 n.2.
II. The district court did not abuse its discretion by accepting and adopting
the Magistrate Judge’s ruling and granting the GDC’s motion to quash.
Having concluded that the district court applied the correct standard of
review, the only question for this Court is whether the district court otherwise
abused its discretion—either by relying on an error of law or committing a clear
error of judgment—in affirming the Magistrate Judge’s ruling granting the GDC’s
motion to quash. See Ameritas Variable Life Ins., 411 F.3d at 1330. Clearly, it did
not.
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As discussed, the Magistrate Judge concluded that disclosure of the
information sought in the GDC subpoena was precluded by Georgia’s Lethal
Injection Secrecy Act. The Lethal Injection Secrecy Act states that:
The identifying information of any person or entity who participates in
or administers the execution of a death sentence and the identifying
information of any person or entity that manufactures, supplies,
compounds, or prescribes the drugs, medical supplies, or medical
equipment utilized in the execution of a death sentence shall be
confidential and shall not be subject to disclosure . . . under judicial
process.
O.C.G.A. § 42-5-36(d)(2). The Act defines “identifying information” to include
“any records or information that reveals a name, residential or business address,
residential or business telephone number, day and month of birth, social security
number, or professional qualifications” of a person or entity that “manufactures,
supplies, [or] compounds” lethal injection drugs. Id. § 42-5-36(d)(1). It classifies
such information as “a confidential state secret.” Id. § 42-5-36(d)(2).
Georgia passed the Lethal Injection Secrecy Act in response to the concerted
effort by death penalty opponents to make lethal injection drugs unavailable for
use in American executions. See Owens v. Hill, 295 Ga. 302, 317 (2014)
(“[W]ithout the confidentiality offered to execution participants by the statute, as
the record and our case law show, there is a significant risk that persons and
entities necessary to the execution would become unwilling to participate.”); see
also Glossip, 135 S. Ct. at 2733–34 (describing the advocacy of death penalty
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opponents that led to the removal of sodium thiopental from the market and a
shortage of pentobarbital for use in American executions). As the Supreme Court
explained in Glossip, use of the barbiturates sodium thiopental and/or pentobarbital
as the first (and frequently only) drug in a lethal injection protocol “enabled
[s]tates to carry out the death penalty in a quick and painless fashion” for several
years. Glossip, 135 S. Ct. at 2733. “But a practical obstacle soon emerged, as
anti-death-penalty advocates pressured pharmaceutical companies to refuse to
supply the drugs used to carry out death sentences.” Id. The advocacy ultimately
had its intended effect: drug manufacturers were persuaded to withdraw sodium
thiopental from the market entirely and to stop selling pentobarbital for use in
executions. Id. Thereafter, it became difficult—if not impossible—for states to
acquire either drug and thus increasingly necessary to substitute midazolam as the
first drug in a three-drug series, as Mississippi has done in the protocol challenged
by Plaintiffs in their underlying § 1983 action. Id. at 2734 (“Unable to acquire
either sodium thiopental or pentobarbital, some States have turned to
midazolam[.]”).
In spite of the developments described above, Georgia has been able to
secure a source of pentobarbital in its compounded form for use in executions. See
Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1278 (11th Cir. 2015)
(“Gissendaner I”) (noting that Georgia’s most recent lethal injection protocol calls
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for “an initial 2.5 gram does of pentobarbital” followed by “a second 2.5 gram
dose of pentobarbital”). But Georgia’s supply of pentobarbital—even in its
compounded form—would be jeopardized were it not for the confidentiality
provided by the Lethal Injection Secrecy Act. See Owens, 295 Ga. at 317 (citing a
case in which a compounding pharmacy “was demanding the return of the
execution drugs that it had supplied to the State of Texas because it was being
harassed” (internal quotation marks omitted)); see also Gissendaner v. Comm’r,
Ga. Dep’t of Corr., 803 F.3d 565, 569 (11th Cir. 2015) (“Gissendaner II”) (“To
require . . . that Georgia open up about its source of pentobarbital would result in
the drug becoming completely unavailable for use in executions, even though its
use does not violate the Eighth Amendment.”), cert. denied sub nom., Gissendaner
v. Bryson, 136 S. Ct. 26 (2015).
This Court has had numerous opportunities to consider the legality and the
implications of the Lethal Injection Secrecy Act. See Gissendaner II; Wellons v.
Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260 (11th Cir. 2014), cert. denied sub
nom., Wellons v. Owens, 134 S. Ct. 2838 (2014); Terrell v. Bryson, 807 F.3d 1276
(11th Cir. 2015); Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d 1288 (11th Cir.
2016). In these cases, the Court has upheld the constitutionality of the Lethal
Injection Secrecy Act, recognized that the confidentiality provided by the Act is
necessary to protect Georgia’s source of pentobarbital for use in executions, and
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concluded that a condemned inmate has no right to the disclosure of information
made confidential by the Act, including information that would identify the
supplier or source of the drugs to be used in the inmate’s execution. See Jones,
811 F.3d at 1292–93 (reviewing this Court’s case law applying the Lethal Injection
Secrecy Act).
By its plain terms, the Lethal Injection Secrecy Act bars disclosure of the
vast majority of information sought in the subpoena Plaintiffs served on the GDC.
For example, the subpoena demands that the GDC produce documents concerning:
(1) the GDC’s attempt to secure or purchase pentobarbital for use in executions,
(2) drug labels and package inserts for any drug purchased by the GDC for use in
lethal injection executions, (3) the process by which the GDC decided to use a
single lethal dose of barbiturate in its lethal injection protocol, including
communications between any GDC officer and any other person, corporation, or
entity related to that process, (4) the GDC’s use of compounded pentobarbital in
executions, including communications between the GDC and any other person or
entity (including pharmaceutical companies, pharmacies, and other corrections
departments) related to the compounding of pentobarbital, (5) any GDC employee
trainings on conducting lethal injections, including the names and qualifications of
the person who taught at the training, and (6) communications between the GDC
and any other corrections department or attorney general’s office related to the
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selection, purchase, or exchange of drugs for use in lethal injections. Responding
to any of these demands would require disclosure of the identity of people and
entities that manufacture or supply drugs used in Georgia executions, and that
otherwise participate in Georgia executions, in violation of the Lethal Injection
Secrecy Act as interpreted by this Court in the numerous cases cited above.
Plaintiffs argue that their case is distinguishable from this Court’s precedent
applying the Lethal Injection Secrecy Act because none of the Court’s prior cases
involved a condemned inmate’s attempt to secure information via subpoena. In
our view, this distinction is immaterial. The essential principle underlying this
Court’s precedent is that the Lethal Injection Secrecy Act is a legitimate and
constitutional attempt by the state of Georgia to maintain the confidentiality of the
people and entities—including drug manufacturers and suppliers—that participate
in executions in Georgia. See Jones, 811 F.3d at 1292–93 (reaffirming this Court’s
precedent establishing that a condemned inmate has no right to require disclosure
of information protected by the Lethal Injection Secrecy Act). In spite of the
slightly different context in which this case arises, that principle applies with equal
force here.
Plaintiffs also argue that the GDC subpoena included some information that
was not covered by the Lethal Injection Secrecy Act, and that the district court thus
abused its discretion by ordering the subpoena to be quashed in its entirety.
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According to Plaintiffs, the district court should at the very least have required the
GDC to submit a privilege log. See Fed. R. Civ. P. 45(e)(2)(A)(ii) (requiring a
person withholding subpoenaed information under a claim of privilege to “describe
the nature of withheld documents [or] communications”).
Again, we are unpersuaded. The purpose of requiring a privilege log is to
“enable the parties to assess [a] claim” of privilege. Id. Here, it is apparent from
the face of the subpoena that the vast majority of the information sought in the
subpoena falls within the plain language of the Lethal Injection Secrecy Act. More
importantly, the information with the most relevance to Plaintiffs’ § 1983 claims—
that is, information identifying Georgia’s source of pentobarbital, which could
show that pentobarbital is a known and available alternative to Mississippi’s three-
drug protocol, as required for Plaintiffs to prevail under Glossip—is directly barred
from disclosure by the Act. The remainder of the information sought is either
readily available to the public (for example, Georgia’s lethal injection protocols
from 2010 to the present) or of limited relevance to Plaintiffs’ burden under
Glossip to point to a known and available alternative to Mississippi’s three-drug
protocol (for example, documents related to the process by which Georgia
determined that it would or would not use midazolam in its executions). Thus, the
district court did not abuse its discretion by quashing the subpoena in its entirety,
and without first requiring the GDC to submit a privilege log.
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CONCLUSION
For the foregoing reasons, we conclude that the district court did not apply
an incorrect legal standard or commit a clear error of judgment in accepting and
adopting the Magistrate Judge’s ruling and granting the GDC’s motion to quash.
Accordingly, we AFFIRM the district court’s order granting the GDC’s motion to
quash.
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