Jack E. Alderman v. James E. Donald , 293 F. App'x 693 ( 2008 )

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                                                             [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT                    FILED
________________________          U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEM BER 3, 2008
No. 08-12550                     THOMAS K. KAHN
________________________                   CLERK
D. C. Docket No. 07-01474-CV-BBM-1
JACK E. ALDERMAN,
Plaintiff-Appellant,
versus
JAMES E. DONALD,
in his capacity as Commissioner of the
Georgia Department of Corrections,
HILTON HALL, in his capacity as Warden,
Georgia Diagnostic and Classification Prison,
1-50 DOES,
UNKNOWN EXECUTIONERS,
in their capacities as employees and/or agents
of the Georgia Department of Corrections,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 3, 2008)
Before TJOFLAT, ANDERSON and CARNES, Circuit Judges.
PER CURIAM:
Plaintiff Jack E. Alderman, a Georgia death row inmate, appeals the dismissal
of his claim, brought under

42 U.S.C. § 1983

, challenging Georgia’s three-drug
lethal injection method.1 The district court dismissed Alderman’s complaint
because it held that the claim was time-barred and the lethal injection protocol was
substantially similar to the one upheld by the Supreme Court in Baze v. Rees,

128 S.Ct. 1520

170 L.Ed.2d 420

 (2008) (plurality opinion). We do not address
Alderman’s substantive arguments because we affirm the district court’s dismissal
of his claim under the applicable statute of limitations.
Actions brought under § 1983 are subject to the statute of limitations
governing personal injury actions in the state where the claim has been brought.
McNair v. Allen,

515 F.3d 1168

, 1173 (11th Cir. 2008). Alderman brought his
claim in Georgia, with a governing limitations period of two years. O.C.G.A. § 9-3-
33 (1964); Crowe v. Donald,

528 F.3d 1290

, 1292 (11th Cir. 2008). “[A] method
1
In 1975, Alderman was sentenced to death by electrocution for the first-degree murder of
his wife. His conviction became final on direct review in 1985. Alderman v. Georgia,

474 U.S. 911

106 S.Ct. 282

88 L.Ed.2d 245

 (1985). Details of Alderman’s crime and the winding
procedural history spanning the 33 years since his conviction are contained in our opinion
affirming the district court’s denial of Alderman’s petition for federal habeas relief. See
Alderman v. Terry,

468 F.3d 775

 (11th Cir. 2006), cert. denied,

128 S.Ct. 67

169 L.Ed.2d 17

(2007).
2
of execution claim accrues on the later of the date on which state review is
complete, or the date on which the capital litigant becomes subject to a new or
substantially changed execution protocol.” McNair,

515 F.3d at 1174

. Alderman
conceded in oral argument before this panel that, pursuant to McNair, his claim is
time-barred because it accrued in October 2001 when the Georgia General
Assembly adopted lethal injection as Georgia’s method of execution of death
sentences. O.C.G.A. § 17-10-38 (2000); Dawson v. State,

554 S.E.2d 137

, 143–44
(Ga. 2001) (holding execution of death sentences by electrocution violates the
Georgia constitution); see also Crowe,

528 F.3d at 1292

 (denying motion to stay
execution because plaintiff did not timely file challenge to Georgia’s lethal injection
protocol).2
Thus, the judgment of the district court is AFFIRMED.
2
Alderman also conceded that the district court did not err by denying Alderman’s request
to equitably toll the statute of limitations. We agree with the district court that Alderman did not
provide sufficient reason for equitable tolling based on his argument that he could not have
brought his complaint until after the Supreme Court issued its decision in Hill v. McDonough,

547 U.S. 573

126 S.Ct. 2096

165 L.Ed.2d 44

 (2006). Crowe,

528 F.3d at 1293-94

; Grayson v.
Allen,

491 F.3d 1318

, 1322 (11th Cir. 2007); Jones v. Allen,

485 F.3d 635

, 640 (11th Cir. 2007).
Nothing precluded Alderman from filing a § 1983 action prior to the decision in Hill and, even if
Alderman had been required to wait until the Hill decision, he delayed filing until ten months
after Hill was issued. Id. Alderman’s argument that it is inequitable to apply McNair
retroactively is equally unavailing because “judicial decisions presumptively apply retroactively
to all pending cases.” Foster v. Bd. of School Comm’rs,

872 F.2d 1563