Thomas Arthur v. Commissioner, AL DOC, et al

Filing

Opinion issued by court as to Appellant Thomas D. Arthur. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Signed.The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 17-11879

Date Filed: 05/24/2017

Page: 1 of 58

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11879-P
Non-Argument Calendar
________________________
D.C. Docket No. 2:16-cv-00866-WKW-GMB
THOMAS D. ARTHUR,
Plaintiff-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
ANNE ADAMS HILL,
General Counsel, Alabama Department of Corrections, in her official capacity,
HOLMAN CF WARDEN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(May 24, 2017)
Before HULL, MARCUS, and WILSON, Circuit Judges.
HULL, Circuit Judge:

Case: 17-11879

Date Filed: 05/24/2017

Page: 2 of 58

Under sentence of death, Thomas Arthur’s execution is currently scheduled
for May 25, 2017 at 6:00 p.m. CST. This is Arthur’s eighth scheduled execution 1
and sixth 42 U.S.C. § 1983 case. 2
A 2012 regulation of the Alabama Department of Corrections (“ADOC”)
prohibits visitors having cell phones in Alabama prisons, and thus Arthur’s
execution witnesses may not have cell phones within the execution viewing room.
In this § 1983 case, Arthur claims that ADOC’s 2012 regulation, as applied to his
May 25, 2017 execution and as applied to his designated friend-witness, violates
his rights to access the courts under the First Amendment in order to raise a future
Eighth Amendment claim that may potentially arise during the middle of his
execution.

1

Alabama previously scheduled Arthur’s execution for (1) April 27, 2001; (2) September
27, 2007; (3) December 6, 2007; (4) July 31, 2008; (5) March 29, 2012; (6) February 19, 2015;
and (7) November 3, 2016. See Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1275 n.2
(11th Cir. 2016).
2

Arthur brought three prior § 1983 cases challenging the method of his execution, which
will be described further below. In addition, Arthur previously filed two other § 1983
complaints seeking (1) access to physical evidence for DNA testing and (2) an injunction barring
a post-mortem autopsy of his body. (CM/ECF for the U.S. Dist. Ct. for the S.D. Ala., case no.
1:08-cv-441, docs. 1, 11, 12; CM/ECF for the U.S. Dist. Ct. for the M.D. Ala., case no. 2:07-cv319, docs. 1, 14, 15).
During the pendency of this appeal from the United States District Court for the Middle
District of Alabama, Arthur also filed a seventh § 1983 case (challenging the use of midazolam)
in the United States District Court for the Southern District of Alabama. (CM/ECF for the U.S.
Dist. Ct. for the S.D. Ala., case no. 1:17-cv-221, doc. 1). That seventh suit, just filed on May 16,
2017, is also currently before this Court on appeal, and this Court granted Arthur’s motion for
expedited briefing. (CM/ECF for the Eleventh Cir. Ct. App., case no. 17-12257).

2

Case: 17-11879

Date Filed: 05/24/2017

Page: 3 of 58

To explain the narrow issue before this Court in Arthur’s § 1983 cell phone
case, we must first review Alabama Code § 15-18-83, which restricts who may be
present and witness an execution in Holman Prison. We then outline (1) Arthur’s
litigation history from 1992-2006 about his murder conviction and death sentence,
(2) his five prior § 1983 cases from 2007-2017, and (3) ADOC’s 2012 regulation
that prohibits cell phones inside all prisons. This § 1983 case is not about access to
a phone in another part of the prison or even outside the execution viewing room.
Rather, Arthur’s § 1983 complaint addresses only access to a cell phone “in the
viewing room” or, alternatively, placement of and unimpeded access to a landline
“in the viewing room.” 3 But whether the requested telephone is a cell phone or,
alternatively, a landline, Arthur has been clear in his complaint and prayer for
injunctive relief that his request is for a telephone “in the viewing room.” For
brevity purposes, we refer to Arthur’s request as for a cell phone in the viewing
room.
We then discuss (4) in more detail Arthur’s § 1983 claim based on the First
and Eighth Amendments, (5) the district court’s ruling on Arthur’s claim for a
witness to have a cell phone in the viewing room at his May 25, 2017 execution,

3

Arthur’s primary request is to allow his designated witness to have a cell phone “in the
viewing room.” Arthur has nowhere alleged that ADOC already has an existing landline within
the viewing room. Nonetheless, we will construe his claim as requesting access to either a newly
installed landline or an existing landline in the viewing room.

3

Case: 17-11879

Date Filed: 05/24/2017

Page: 4 of 58

and (6) why, on appeal, Arthur has shown no reversible error in the district court’s
dismissal of this § 1983 case as barred by the statute of limitations, or alternatively
for failure to state a claim for injunctive relief. Importantly, on appeal, Arthur has
made no claim under the Sixth or Fourteenth Amendments. Rather, Arthur brings
his claims as a First Amendment access-to-courts case. 4
I. ALABAMA CODE § 15-18-83: WITNESSES TO EXECUTIONS
We start with the governing Alabama statute. Enacted in 1975, Alabama
Code § 15-18-83 explicitly restricts who may be present at an execution. That
statute reads in its entirety:
(a)

The following persons may be present at an execution and none
other:
(1) The executioner and any persons necessary to assist in
conducting the execution.
(2) The Commissioner of Corrections or his or her
representative.
(3) Two physicians, including the prison physician.
(4) The spiritual advisor of the condemned.
(5) The chaplain of Holman Prison.
(6) Such newspaper reporters as may be admitted by the
warden.
(7) Any of the relatives or friends of the condemned person
that he or she may request, not exceeding six in number.

4

In his § 1983 right-of-access complaint, Arthur does note that a prisoner’s right of access
to the courts emanates from the First and Fourteenth Amendments to the United States
Constitution. Arthur only cites the Fourteenth Amendment, however, for the proposition that, by
operation of that Fourteenth Amendment, the states are precluded from abridging First
Amendment rights. See Grosjean v. Am. Press Co., 297 U.S. 233, 243, 56 S. Ct. 444, 446
(1936). Arthur asserts no stand-alone Fourteenth Amendment claim in his right-of-access § 1983
complaint. Arthur’s claim is a First Amendment access-to-courts claim to assert a future Eighth
Amendment claim that may potentially arise during his execution.

4

Case: 17-11879

Date Filed: 05/24/2017

Page: 5 of 58

(8)

(b)

The immediate family of the victim, over the age of 19,
not exceeding eight in number and apportioned equally
among the victim’s immediate family members. If there
are fewer than six total immediate family members of the
deceased victim, additional immediate family members
of a victim, for whose death the inmate is not sentenced
to death.
No convict shall be permitted by the prison authorities to
witness the execution.

Ala. Code § 15-18-83 (1975) (emphasis added). Thus, a condemned inmate can
designate up to six “relatives or friends” who may be present at his execution. The
statute does not provide an option for the inmate’s attorney to be present in his or
her capacity as legal counsel. The list is a closed universe—only the people listed
“and none other” may witness an execution. Arthur has designated Suhana Han,
his attorney, to be one of his six relative or friend-witnesses under § 15-18-83.
While Han has been Arthur’s counsel since 2002, it is undisputed that Alabama
law restricts her presence in the viewing room to being a friend-witness. In this
appeal, Arthur does not challenge the constitutionality of Alabama’s statute in
§ 15-18-83. 5
Notably, Arthur also makes no claim under the Sixth Amendment that he has
a right to have legal counsel present in the viewing room during his execution.
5

Alabama Code § 15-18-83 was promulgated in 1975 and thus has been in place during
the entire pendency of Arthur’s three capital trials and 25 years of litigation about his death
sentence. The district court was correct that, insofar as Arthur’s § 1983 complaint perhaps
“implicitly” challenged the constitutionality of § 15-18-83, such a § 1983 claim is clearly timebarred. In any event, in this appeal, Arthur does not challenge the constitutionality of § 15-1883.

5

Case: 17-11879

Date Filed: 05/24/2017

Page: 6 of 58

Therefore, this appeal is only about the narrow issue of whether Arthur has a
constitutional right to have his friend-witness have a cell phone (or access to a
landline) in the viewing room while witnessing his execution.
On November 2, 2016, Arthur filed in federal district court a § 1983
complaint against ADOC for “violations and threatened violations” of his First and
Eighth Amendment rights, based on ADOC’s prohibiting witnesses from
possessing cell phones in the viewing room during the administration of the three
drugs in his scheduled execution. Alabama’s prohibition of cell phones for visitors
in all prisons has been in effect at least since August 1, 2012. The district court
thus dismissed Arthur’s § 1983 complaint as barred by the two-year statute of
limitations and, alternatively, for failure to state a claim. Arthur appealed, and this
Court ordered expedited briefing, which was completed on May 18, 2017 at 3:50
p.m. EST.
To place the statute of limitations issue in context, we review just some of
Arthur’s litigation history from 1992 to 2017.
II. ARTHUR’S LITIGATION HISTORY
A.

1992-2006: Litigation about Arthur’s Murder Conviction
This Court has recounted, in multiple previous opinions, the facts underlying

Arthur’s murder conviction, as well as Arthur’s long, 25-year history of litigation

6

Case: 17-11879

Date Filed: 05/24/2017

Page: 7 of 58

in state and federal courts. We will not belabor that history now but, rather, point
out only certain dates relevant to the instant appeal.
After his third trial in 1991, Arthur was convicted of the murder of Troy
Wicker and sentenced to death in 1992. See Arthur v. Thomas, 739 F.3d 611, 61415 (11th Cir. 2014).6 The Alabama Supreme Court summarized the events giving
rise to Arthur’s death sentence, which included Arthur being on work release
during a life sentence for a prior murder conviction when he killed Troy Wicker:
Arthur’s relationship with his common-law wife ultimately led to his
brutally murdering a relative of the woman. Arthur shot the victim in
the right eye with a pistol, causing nearly instant death. He was
convicted in a 1977 trial and was sentenced to life imprisonment.
While on work release during the life sentence, Arthur had an affair
with a woman that ultimately led to his brutally murdering that
woman’s husband, Troy Wicker, in 1982. Arthur shot Wicker in the
right eye with a pistol, causing nearly instant death.
Ex parte Arthur, 711 So. 2d 1097, 1098 (Ala. 1997).
On direct review, the state appellate courts affirmed Arthur’s conviction and
sentence. Arthur, 739 F.3d at 616-18. Arthur’s state capital conviction became
final on June 18, 1998. Id.
6

During the sentencing phase of Arthur’s third trial for his murder of Troy Wicker,
Arthur asked the jury to sentence him to death. Arthur, 739 F.3d at 614. Arthur believed that, if
sentenced to death, he would enjoy “better prison accommodations, more access to the law
library, more time to devote to his appeal, a more extensive appeals process, and—based on his
prior experience with the capital appellate process—an increased chance for a third reversal.” Id.
At trial, Arthur personally addressed the jury to ask for a capital sentence, telling the jury that
such a sentence “would give him more time to spend with his children during their prison visits,
provide him with a more private cell, and afford him more control over his appeal.” Id. at 61415.

7

Case: 17-11879

Date Filed: 05/24/2017

Page: 8 of 58

After multiple state collateral review cases, the state courts again denied
Arthur relief. Id. at 620-21. In 2002, the United States Supreme Court denied
Arthur’s petition for a writ of certiorari as to his murder conviction and death
sentence. Id. at 621.
After Arthur’s state collateral petition was dismissed, and while Arthur was
appealing that dismissal in the state appellate courts, Arthur filed a federal 28
U.S.C. § 2254 petition raising multiple claims on April 20, 2001—seven days
before his first scheduled execution date of April 27, 2001. Id. On April 25, 2001,
the federal district court stayed Arthur’s execution and his § 2254 proceedings
pending exhaustion of state remedies. Id.
Ultimately, the federal district court dismissed Arthur’s § 2254 petition. Id.
at 621-23. In 2006, this Court affirmed. Id. at 623-24. In January 2007, Arthur
petitioned the United States Supreme Court for a writ of certiorari, which the
Supreme Court denied. Id. at 624-25.
B.

2007-2011: Arthur’s First Two § 1983 Method-of-Execution Cases
In the years that followed, Alabama’s three-drug lethal injection protocol

changed as certain drugs became unavailable. Arthur’s § 1983 challenges to that
lethal injection protocol evolved accordingly. In May 2007, Arthur filed his first
§ 1983 challenge to the method of his execution, which at that time included
sodium thiopental as the first drug. (CM/ECF for the U.S. Dist. Ct. for the S.D.
8

Case: 17-11879

Date Filed: 05/24/2017

Page: 9 of 58

Ala., case no. 1:07-cv-342, docs. 1, 15). The district court dismissed that
complaint, and this Court affirmed. Arthur v. Allen, No. 07-0342, 2007 WL
2320069 (S.D. Ala. Aug. 10, 2007), aff’d 248 F. App’x 128 (11th Cir. Sept. 17,
2007) (unpublished). The United States Supreme Court denied Arthur’s petition
for a writ of certiorari. Arthur v. Allen, 553 U.S. 1004, 128 S. Ct. 2048 (2008).
In October 2007, Arthur filed a second challenge to Alabama’s lethal
injection protocol, which the district court again dismissed, and this Court
affirmed. Arthur v. Ala. Dep’t of Corr., No. 07-15877, 285 F. App’x 705 (11th
Cir. July 29, 2008) (unpublished).
C.

2011-2017: Five-year § 1983 Lawsuit About Many Elements of
Alabama’s Execution Protocol, Including the First Drug
Arthur’s third § 1983 method-of-execution litigation lasted for over five

years. In April 2011, Alabama switched the first drug in its lethal injection
protocol from sodium thiopental to pentobarbital. See Arthur v. Comm’r, Ala.
Dep’t of Corr., 840 F.3d 1268, 1275 (11th Cir. 2016). Two months later, Arthur
filed a new § 1983 complaint challenging this pentobarbital-based protocol. Id.
In September 2014, Alabama switched to midazolam. Id. at 1276. Arthur
twice amended his § 1983 complaint to challenge midazolam and Alabama’s
execution protocol involving midazolam. Id. at 1275-78. We recount the variety
of just some of Arthur’s claims in his § 1983 litigation because, notably, Arthur did

9

Case: 17-11879

Date Filed: 05/24/2017

Page: 10 of 58

not raise his current claim for a cell phone (or a landline) in the viewing room
during that five-year challenge to Alabama’s execution protocol.
After holding a two-day bench trial in January 2016 regarding midazolam,
the “pinch test,” medical monitoring, and many other § 1983 claims about
Alabama’s execution procedures, the district court issued two dispositive orders in
Arthur’s § 1983 case. Id. at 1278, 1283, 1296. In its first order, the district court
determined that ADOC was entitled to judgment on Arthur’s facial method-ofexecution and Equal Protection challenges. Id. at 1283-86. In its second order, the
district court denied relief on Arthur’s many as-applied challenges to ADOC’s
method of execution as applied to Arthur personally. Id. at 1296-98. As a result,
in July 2016, the district court entered final judgment on Arthur’s § 1983
challenges under the Eighth Amendment, and Arthur timely appealed to our Court
in 2016. Id. at 1298.
On November 2, 2016, this Court affirmed the district court’s final judgment
in Arthur’s § 1983 case, rejecting his various challenges to Alabama’s execution
protocol, including, but not limited to, Alabama’s use of midazolam as the first
drug in the three-drug lethal injection series and his request for a firing squad to
execute him. Id. at 1303-04, 1315-17. After exhaustively reviewing the evidence
submitted by both Arthur and ADOC in that § 1983 case, this Court determined,
among other things, that the district court had not erred in finding that Arthur had
10

Case: 17-11879

Date Filed: 05/24/2017

Page: 11 of 58

not met his burden of showing that ADOC’s midazolam-based lethal injection
protocol created a substantial risk of severe pain and violated the Eighth
Amendment. Id. at 1303-04.
This Court also rejected Arthur’s as-applied Eighth Amendment challenges
for several reasons. For example, Arthur’s proposed modified lethal injection
protocol, which called for extensive monitoring with various pieces of medical
equipment, was “light on specifics,” and, more importantly, Arthur admitted that
the modified protocol would only reduce “to some extent” the possibility of his
suffering a heart attack before being sedated. Id. at 1307. Alternatively, we
determined that the district court did not err in finding that the opinion of one of
Arthur’s experts was too speculative and unreliable to be admissible. Id. at 131012. Further, Arthur had not met his burden of demonstrating that, as applied to
him, Alabama’s lethal injection protocol was “sure or very likely to cause serious
illness and needless suffering, and give rise to sufficiently imminent dangers,” the
showing demanded by the Supreme Court. Id. at 1312 (quoting Glossip v. Gross,
576 U.S. ___, ___, 135 S. Ct. 2726, 2737 (2015)).
This Court, in its November 2, 2016 decision, also determined that Arthur’s
Equal Protection claim—regarding Alabama’s performance of the so-called “pinch
test” in its execution protocol—was not meritorious. Id. at 1312-14. Based on the
record in that case, we rejected Arthur’s claim for a firing squad, given that Arthur
11

Case: 17-11879

Date Filed: 05/24/2017

Page: 12 of 58

had not shown either that Alabama’s chosen execution method (lethal injection)
was sure or likely sure to violate the Eighth Amendment, or that his requested
firing squad alternative was a feasible, readily implemented, or significantly safer
method of execution. Id. at 1315-17.
On February 21, 2017, the United States Supreme Court denied Arthur’s
petition for a writ of certiorari in that five-year § 1983 litigation. Arthur v. Dunn,
137 S. Ct. 725 (2017). On April 24, 2017, the United States Supreme Court denied
Arthur’s petition for rehearing. This brings us to the background of ADOC’s cell
phone policy, which is the subject of Arthur’s new and sixth § 1983 case.
III. ADOC’S 2012 POLICY PROHIBITING CELL PHONES
IN PRISON FACILITIES
As outlined above, Alabama Code § 15-18-83 permits only six relatives or
friends to be present in the viewing room during an execution. ADOC’s
regulations, specifically AR 303, establish ADOC’s procedures for all outside
visitors coming into the prison. Also included in AR 303 is an annex entitled
“Orientation Guidelines for Visitors and Inmates” (“Annex A”). Annex A to AR
303 has a list of “prohibited items” that includes “[e]lectronic equipment to include
. . . cell phones.” Thus, no visitor may take a cell phone into Alabama’s Holman
Prison, where Arthur is incarcerated and set to be executed.

12

Case: 17-11879

Date Filed: 05/24/2017

Page: 13 of 58

IV. CORRESPONDENCE BETWEEN ADOC AND HAN ABOUT A
TELPHONE IN THE VIEWING ROOM
On October 31, 2016, Han sent a letter to the ADOC Commissioner,
requesting to possess her cell phone or have unimpeded access to a telephone “in
the viewing chamber” during Arthur’s execution. In her October 31, 2016 letter,
Han admitted that she knew that ADOC’s rules prohibited cell phones in the
viewing room, but Han asserted that media exceptions were previously made, and
she requested an exception for her, stating:
I write on behalf of Thomas D. Arthur to respectfully request that you
permit me, Suhana Han, counsel to Mr. Arthur, to possess a cell phone
or otherwise have unimpeded access to a telephone in the viewing
chamber during Mr. Arthur’s execution scheduled for November 3,
2016 at 6:00 p.m. CDT. While I understand that the Alabama
Department of Corrections (“ADOC”) has a general policy against
possession of cell phones within its facilities, exceptions to this policy
have been made and an exception should be allowed here . . . . As
reported by the media, I understand that other individuals, such as
members of the media, are permitted to have cell phones in the
viewing chamber.
...
To accommodate any security or cost-related concerns the ADOC
may have, I will purchase a disposable cell phone solely for this
purpose at my own expense . . . . Alternatively, I request that you
please provide a landline or cell phone of your choosing in the
viewing room set aside for my use.
(emphasis added). Han copied the Alabama Attorney General’s Office and
General Counsel for ADOC on her October 31, 2016 letter.

13

Case: 17-11879

Date Filed: 05/24/2017

Page: 14 of 58

Alabama’s Assistant Attorney General (the “State’s attorney”) responded the
same day and denied the request given that, under Alabama law in § 15-18-83, Han
was permitted to attend the execution only as a friend-witness and in a non-legal
capacity:
I am in receipt of an electronic copy of your October 31, 2016,
letter concerning Thomas Arthur’s scheduled execution on November
3, 2016. Please note that Thomas Arthur’s status as your client does
not give you a right to be present at his execution. Pursuant to Code
of Alabama § 15-18-83 (1975), in the event Arthur makes such a
request, you will be allowed to attend the execution as a witness. This
statute permits your presence at a judicially-ordered execution in a
non-legal capacity.
In the event Thomas Arthur requests your presence as a witness
during his execution, you will be subject to the regulations and rules
of the Alabama Department of Corrections while in the Department’s
facilities. It is my understanding that the Department does not permit
visitors to possess cell phones or wireless devices within the
correctional facility.
Thus, the State’s attorney informed Han that § 15-18-83 gave her permission to
attend Arthur’s execution only as a witness. And as a witness, Han would be
subject to ADOC’s regulations, including the rule prohibiting visitors from
possessing cell phones within a prison. The State’s attorney stressed that, should
Arthur designate Han as a witness, and should she attend the execution, “the State
will not accept your presence as being in a legal capacity.”
On November 1, 2016, the ADOC Commissioner replied to Han’s letter.
The Commissioner’s November 1 letter reads in its entirety:
14

Case: 17-11879

Date Filed: 05/24/2017

Page: 15 of 58

I received your letter of October 31, 2016, requesting that you
be permitted to have a cell phone or otherwise have unimpeded access
to a telephone, while you are in the viewing chamber for Thomas D.
Arthur’s execution on November 3, 2016. As your letter pointed out,
the Alabama Department of Corrections does have a policy,
prohibiting the use of cellular telephones at any of its facilities by
anyone, other than authorized personnel. This prohibition, of course,
includes the viewing chamber at Holman Correctional Facility. Any
statement you have heard to the contrary, such as your statement, that
members of the media have been allowed to have cellular phones in
the viewing chamber in the past, is inaccurate. There are no
exceptions to this policy.
If Mr. Arthur requests your presence at his execution, your
presence in the viewing chamber will be as a friend of Mr. Arthur’s
and not as his attorney. As explained by Assistant Attorney General
James R. Houts, in his letter to you of October 31, 2016, section 1518-83 of the Alabama Code (1975), permits your presence at a
judicially-ordered execution only in a non-legal capacity.
(emphasis added). Thus, the Commissioner similarly stated that, under Alabama
law, Han’s presence was permitted as a friend-witness in the viewing room and not
in her legal capacity. The Commissioner stated that Han’s allegation—that the
media had been allowed to have cell phones during executions—was inaccurate
and that there was no exception to Alabama’s rule prohibiting cell phones of
visitors.
V. ARTHUR’S CURRENT § 1983 CHALLENGE
Subsequently, Arthur filed the instant § 1983 complaint, his sixth
§ 1983 case. According to Arthur’s § 1983 complaint, ADOC’s rule prohibiting
witnesses’ having a cell phone in the viewing room during his execution violates
his First Amendment right to meaningful access to the courts. “The purpose of
15

Case: 17-11879

Date Filed: 05/24/2017

Page: 16 of 58

recognizing an access claim is to provide vindication for a separate and distinct
right to seek judicial relief,” and thus a litigant asserting an access claim must also
prove that he has a viable or colorable claim for which he seeks relief. Barbour v.
Haley, 471 F.3d 1222, 1225-26 (11th Cir. 2006). In other words, the right to
meaningful access to the courts “is ancillary to the underlying claim.” Id. at 1226.
As Arthur’s underlying claim for which he wants meaningful access to the
courts, Arthur alleges that, during the execution, something may go wrong in
violation of his Eighth Amendment rights. Arthur wants his witness to have a cell
phone in the viewing room itself in order to call a court and make an Eighth
Amendment claim during the ongoing execution. Arthur’s complaint and appellate
briefs are clear that this is a telephone-in-the-viewing-room claim. Indeed,
Arthur’s complaint refers only to phone access “in the viewing room.” Thus, this
case before this Court is not about access to a cell phone or to an ADOC landline
in other parts of the prison.
In his § 1983 complaint, Arthur claimed that access to the courts was
necessary “if something arises during [the] execution that warrants seeking any
form of appropriate relief.”
Arthur sought injunctive relief and a declaration that AR 303’s cell phone
prohibition, as applied to his execution with midazolam and as applied to a

16

Case: 17-11879

Date Filed: 05/24/2017

Page: 17 of 58

designated friend-witness in the viewing room, was unconstitutional. Alabama
filed a motion to dismiss Arthur’s § 1983 complaint.
On April 12, 2017, the district court granted the State’s motion to dismiss.
As to Alabama Code §15-18-83, the district court pointed out that § 15-18-83,
which governs who may attend executions, permits Han to attend only as a
designated friend, not as legal counsel. Further, §15-18-83, enacted in 1975, was
in effect at the time of Arthur’s murder conviction in 1982, when his state direct
review became final in 1998, throughout his two prior § 1983 complaints in 20072011, and during even the litigation of his third § 1983 complaint. Because
Arthur’s § 1983 complaint was not filed until November 2, 2016, the district court
concluded that Arthur’s challenge to § 15-18-83 was time-barred.
As to the cell phone prohibition in ADOC’s regulations, the district court
determined that the applicable two-year statute of limitations began to run from
August 1, 2012, the date when the latest version of AR 303 (prohibiting cell
phones) became effective. The district court rejected Arthur’s contention that his
claim did not ripen until October 31, 2016, when Han’s letter requested a cell
phone, or until November 1, 2016, when ADOC denied Counsel Han’s request.
Alternatively, the district court determined that Arthur’s instant § 1983
complaint failed to state a plausible claim for relief under Federal Rule of Civil
Procedure 12(b)(6). The district court noted the “futility” of a friend-witness (even
17

Case: 17-11879

Date Filed: 05/24/2017

Page: 18 of 58

if a lawyer) in the viewing chamber making a mid-execution call to a judge due to
an alleged irregularity in the execution. The district court explained that the
witness (who is not a medical doctor) would be unable to tell the judge (who is
also not a medical doctor): (1) what the inmate’s irregular movement meant,
(2) what drugs had been administered so far or even in what amount, (3) what
effect stopping the execution after the injection of one or two drugs would have on
the inmate, or (4) whether stopping the execution midstream would cause the
inmate pain and suffering or render him comatose. The district court aptly and
succinctly explained that:
The reality is that, once the execution drugs begin to flow, only the
warden knows what has been administered, in what amounts, and
generally over what time period. Even experienced physicians
presented with this scenario likely would be unable to opine as to the
immediate or lingering effects on the inmate, or prognosis of an
inmate in that circumstance. The result of an interference by a court
would, in all likelihood, be cruel and unusual, a fumbling error invited
by counsel and, in the end, uncivilized. This court cannot imagine a
scenario in which any such interference should be undertaken.[7]
Arthur timely appealed. 8

7

A filing Arthur submitted in connection with his 2014-2016 midazolam-based § 1983
case states that Alabama’s execution protocol “provid[es] that the IV team consist of two ‘trained
medical professionals’ who ‘will normally be’ EMTs.” Thomas Arthur’s Statement Regarding
the U.S. Supreme Court’s Decision in Glossip v. Gross at 5, Arthur v. Dunn, 195 F. Supp. 3d
1257 (M.D. Ala. 2016) (No. 2:11-cv-438-WKW), ECF No. 245-2.
8

We review the district court’s grant of a motion to dismiss de novo, accepting the
allegations in the complaint as true and construing them in the light most favorable to the
plaintiff. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011) (per curiam).

18

Case: 17-11879

Date Filed: 05/24/2017

Page: 19 of 58

VI. NARROW SCOPE OF THIS APPEAL
Before discussing Arthur’s First Amendment access claim and his
underlying potential Eighth Amendment claim, we need to point out what is not
before the Court today. In this appeal, Arthur has not made a claim that Alabama
Code § 15-18-83—which restricts execution witnesses to relatives or friends of
Arthur—is unconstitutional. And Arthur has not made a claim that he has a
constitutional right under the Sixth Amendment to have his counsel present as a
witness in the execution viewing room. Accordingly, we do not address these
claims, nor do we address the more general question of whether Arthur retains a
right of access to the courts during his execution. Indeed, we proceed under the
assumption that he does, and consider only whether, under the particular facts and
circumstances of this case, he has said enough to establish the kind of imminent or
actual injury necessary for him to perfect his claim.
Importantly for the narrow issue before this Court today, Arthur admits, as
he must, that he has litigated for years in federal courts his Eighth Amendment
claims that Alabama’s three drug lethal injection protocol, both facially and as
applied to him because of his medical history, will cause severe pain and cruel and
unusual punishment to Arthur. Indeed, the last two years of that litigation
involved, inter alia, Alabama’s use of midazolam as the first drug in its execution
protocol. Accordingly, as we consider Arthur’s new cell-phone-access claim, we
19

Case: 17-11879

Date Filed: 05/24/2017

Page: 20 of 58

are faced with factual and legal determinations that, as applied to Arthur,
Alabama’s three-drug execution protocol—including the use of midazolam, the
“pinch test,” and other aspects of that protocol—do not present a substantial risk of
serious imminent harm in his execution. See Arthur, 840 F.3d at 1312, cert. denied
sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017).
Therefore, under the particular facts and circumstances of Arthur’s cell
phone case, this Court is presented with only a narrow issue: whether Alabama’s
telephone prohibition, as applied to Arthur’s May 25, 2017 execution and as
applied to Arthur’s designated “friend-witness” present in the viewing room only
under Alabama Code § 15-18-83, violates Arthur’s First Amendment right to
meaningful access to the courts. Even before addressing that narrow issue, we
must examine the district court’s threshold ruling that Arthur’s First Amendment
cell-phone-viewing-room claim is barred by the statute of limitations.
VII. THE STATUTE OF LIMITATIONS BARS ARTHUR’S CLAIM
The parties agree that Arthur’s § 1983 cell-phone-viewing-room claim is
subject to a two-year statute of limitations. Powell v. Thomas, 643 F.3d 1300,
1303 (11th Cir. 2011) (per curiam); Ala. Code § 6-2-38. At issue is when that
statute of limitations period began to run on Arthur’s claim that Alabama’s
telephone prohibition for his friend-witness in the viewing room violates the First
Amendment right of access to the courts to bring a potential underlying Eighth
20

Case: 17-11879

Date Filed: 05/24/2017

Page: 21 of 58

Amendment claim during his execution. While federal courts borrow the statute of
limitations period from state law, “the accrual date of a § 1983 cause of action is a
question of federal law.” Wallace v. Kato, 549 U.S. 384, 388, 127 S. Ct. 1091,
1095 (2007). In this Circuit, a federal claim accrues when the plaintiff “knows or
has reason to know of the injury which is the basis of the action.” McNair v.
Allen, 515 F.3d 1168, 1174 (11th Cir. 2008).
A.

Arthur’s Claim is Untimely
The procedures and restrictions on witnesses to an execution are arguably a

subset of a method-of-execution claim, which means the claim accrued when the
capital defendant’s direct review was completed or when the capital defendant
became subject to a new or substantially changed execution protocol. Gissendaner
v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1280 (11th Cir.) (citing McNair,
515 F.3d at 1174), cert. denied sub nom. Gissendaner v. Bryson, 135 S. Ct. 1580
(2015).
But regardless of whether this claim is best analyzed under the method-ofexecution or the access-to-courts framework, the statute of limitations began to run
when the ADOC regulation at issue was enacted, because at that point Arthur knew
or should have known of the injury for which he seeks relief. See Chappell v.
Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (per curiam) (concluding that the
statute of limitations for an access-to-courts claim begins to run “only when the
21

Case: 17-11879

Date Filed: 05/24/2017

Page: 22 of 58

plaintiffs knew or should have known that they have suffered injury to their right
of access and who caused it”); McNair, 515 F.3d at 1174. 9
Under that standard, Arthur’s cell-phone-viewing-room claim is timebarred. Since 2002, Counsel Han has represented Arthur in his federal habeas and
§ 1983 cases. It is unclear from the record exactly when Alabama implemented its
long-standing rule against visitors bringing cell phones into prison facilities, but it
was undisputedly in place no later than August 1, 2012. Given Arthur’s 2012-2017
litigation about so many aspects of ADOC’s rules and protocols, we agree with the
district court that August 1, 2012 was the point at which Arthur knew or should
have known of the putative injury to his right of access. See Chappell, 340 F.3d at
1283. 10
Even assuming arguendo that the two-year statute of limitations did not
begin to run until ADOC switched to midazolam as the first drug in September
2014, it still expired by November 2016 when Arthur filed this lawsuit.
9

Although Arthur’s complaint alleged that ADOC’s refusal to allow his counsel access to
a telephone in the viewing room violated his Eighth Amendment right to be free from cruel and
unusual punishment, he expressly disclaims on appeal the yardstick used to decide the statute of
limitations in Eighth Amendment method-of-execution cases. We need not further decide this
issue because, under either standard, Arthur’s claim is time-barred. See Boyd v. Warden, No.
15-14971, slip op. at 34-43 (11th Cir. May 9, 2017) (rejecting method-of-execution claims by
death-row inmate for failure to comply with the applicable two-year statute of limitations).
10

Although Arthur suggests that unnamed “others” were previously permitted to possess
cell phones in the execution viewing room, Arthur’s allegation appears to be based on nothing
more than a newspaper editorial. In his November 1, 2016 letter, the ADOC Commissioner
flatly stated that Han’s media assertion was “inaccurate” and that that there are no exceptions to
the cell phone ban. Arthur has not alleged when these supposed “others” were allowed access to
cell phones or who they were. His bare allegation does not make his claim timely.

22

Case: 17-11879

B.

Date Filed: 05/24/2017

Page: 23 of 58

Section V(C)(2)’s Rule for “Legal/Attorney Visits”
We recognize that Arthur asserts that ADOC’s separate rule for

“Legal/Attorney Visits,” found in section V(C)(2) of AR 303, applies. That rule
allows attorneys, with approval of the warden, to request “legal visits,” to “leave
legal documents with an inmate,” and to interview an inmate “for legal purposes.”
AR 303, section V(C)(2)(a)-(e). That rule grants ADOC some discretion to permit
attorneys to request permission to have a cell phone in legal visits with their
clients. Specifically, section V(C)(2)(f) of AR 303 states, in relevant part:
An attorney may request to bring to a visit electronic equipment, i.e.;
laptop, tape recorder, camera; materials needed to complete a
psychological evaluation.
...

The request will be honored only in very limited, special
circumstances, with the advanced approval of the Warden and
the ADOC General Counsel.

Arthur claims that the statute of limitations did not begin to run until Han
sent her October 31, 2016 letter requesting a cell phone or telephone in the
viewing room and ADOC denied the request.
The problem for Arthur is that ADOC’s rule for “Legal/Attorney Visits”
with their clients, found in section V(C)(2) of AR 303, does not apply to an
execution witness in the viewing room under § 15-18-83. Notably, Han did not
reference that rule about “Legal/Attorney Visits” in her October 31, 2016 letter
request to ADOC.
23

Case: 17-11879

Date Filed: 05/24/2017

Page: 24 of 58

Furthermore, ADOC Form 303-E is the form an attorney must complete and
submit in order to request a “Legal/Attorney Visit” under section V(C)(2) of AR
303. Form 303-E expressly prohibits attorneys from bringing in electronic
equipment, including cell phones. Below that prohibition, Form 303-E does have a
section entitled “Comment(s) Request(s)” with blank lines where an attorney may
request bringing in electronic equipment. Tellingly, Han never completed or
submitted this form, which further indicates that no one thought the
“Legal/Attorney Visits” rule in section V(C)(2) applied to her presence in the
execution viewing room.
Given section V(C)(2) of AR 303 and ADOC Form 303-E, ADOC’s
discretion to permit an electronic device applies only to specified legal interactions
between attorneys and their incarcerated clients in the course of providing legal
representation in an ongoing manner and not in the context of executions.
Witnessing an execution cannot constitute an “Attorney/Legal Visit” under
section V(C)(2) of AR 303 because Alabama law only allows an attorney to attend
his or her client’s execution in the role of a relative or friend. Ala. Code § 15-1883. And as set forth above, the separate section V(C)(1) of AR 303, which applies
here, does not contain a discretionary exception to the electronics ban for visitors.
Indeed, under Arthur’s theory of the limitations period, there would be no
relevant statute of limitations for telephone claims like his claim. Under Arthur’s
24

Case: 17-11879

Date Filed: 05/24/2017

Page: 25 of 58

theory, a friend-witness or an attorney could wait until a week before the
execution, file a request to the warden for a cell phone or landline in the viewing
room, have it denied, and then file a timely § 1983 suit about that denial. We are
not inclined to ignore the two-year statute of limitations for § 1983 claims in the
manner Arthur suggests.
Thus, the district court did not err in determining that Arthur’s § 1983
access-to-courts claim based on ADOC’s telephone restriction was barred on its
face by Alabama’s two-year statute of limitations.
VIII. ARTHUR’S UNREASONABLE DELAY IN BRINGING
HIS CELL PHONE CLAIM
Arthur’s § 1983 complaint seeks injunctive relief, which “is an equitable
remedy that is not available as a matter of right.” Williams v. Allen, 496 F.3d
1210, 1212 (11th Cir. 2007). In a § 1983 suit by a death-row inmate in Hill v.
McDonough, the United States Supreme Court acknowledged that “a number of
federal courts have invoked their equitable powers to dismiss suits they saw as
speculative or filed too late in the day.” 547 U.S. 573, 584, 126 S. Ct. 2096, 2104
(2006) (collecting cases); see also Hallford v. Allen, 576 F.3d 1221, 1222 (11th
Cir. 2009) (per curiam) (dismissing a § 1983 action for unreasonable delay);
Williams, 496 F.3d at 1214-15 (same). Although it did not address the correctness
of those determinations, the United States Supreme Court nevertheless recognized
the “significant” problems created when death-row inmates delay in filing their
25

Case: 17-11879

Date Filed: 05/24/2017

Page: 26 of 58

§ 1983 suits, stating that “federal courts can and should protect States from dilatory
or speculative suits.” Hill, 547 U.S. at 585, 126 S. Ct. at 2104.
Additionally, “the equitable principles at issue when inmates facing
imminent execution delay in raising their § 1983 . . . challenges are equally
applicable to requests for both stays and injunctive relief.” Grayson v. Allen, 491
F.3d 1318, 1322 (11th Cir. 2007) (citing Rutherford v. McDonough, 466 F.3d 970,
976 (11th Cir. 2006) (affirming dismissal of a § 1983 suit challenging lethal
injection based on petitioner’s unnecessary delay in filing suit)).
Under these principles, this Court has previously concluded that, where a
death-row inmate unreasonably delayed in filing his § 1983 suit, affirmance of the
district court’s dismissal was warranted. Grayson, 491 F.3d at 1325. Arthur’s case
shares certain similarities with Grayson. As with Arthur, the State of Alabama had
set Grayson’s execution numerous times. Further, the underlying factual predicate
for the challenge (there, the State’s lethal injection protocol and, here, its
prohibition on cell phones) was in place for many years before the inmates filed
suit. Id. at 1325-26.
In this case, Arthur’s § 1983 complaint seeks only equitable relief and was
due to be dismissed for unreasonable delay. 11 Arthur’s direct and post-conviction

11

While the district court in this case did not dismiss Arthur’s § 1983 complaint on
unreasonable-delay grounds, we may affirm on any adequate grounds, including grounds

26

Case: 17-11879

Date Filed: 05/24/2017

Page: 27 of 58

appeals concluded almost 15 years ago. His most recent and most lengthy § 1983
case, which challenged Alabama’s lethal injection protocols, lasted five and a half
years, consisted of multiple claims, involved discovery, and culminated in a twoday bench trial before the federal district court judge in the United States District
Court for the Middle District of Alabama. See Arthur, 840 F.3d at 1272. And yet
Arthur failed to raise any claim in that litigation concerning ADOC’s policy
restricting cell phones. Arthur has offered no justification for why he could not
have brought this cell-phone § 1983 claim much earlier.
IX. ARTHUR’S COMPLAINT FAILS TO STATE A
PLAUSIBLE CLAIM FOR RELIEF
Alternatively, Arthur’s sixth § 1983 complaint does not “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, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974
(2007)). Instead, Arthur offers only conclusory allegations that fail to rise “above
the speculative level” and that are thus insufficient to state a plausible claim for
relief. Twombly, 550 U.S. at 555, 127 S. Ct. at 1965.
It is well established that “prisoners have a constitutional right of access to
the courts.” Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494 (1977).

different than those on which the district court relied. See Rowe v. Schreiber, 139 F.3d 1381,
1382 n.2 (11th Cir. 1998); see also Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir. 2008).

27

Case: 17-11879

Date Filed: 05/24/2017

Page: 28 of 58

Prison administrators must ensure that “inmate access to the courts is adequate,
effective, and meaningful.” Id. at 822, 97 S. Ct. at 1495. A state “need not
literally bar the courthouse door” to violate the right; a violation occurs when the
state thwarts an individual’s ability to seek a “claim for redress.” Chappell, 340
F.3d at 182. This means that prisoners must be afforded “a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to
the courts.” Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180 (1996). But
Bounds did not create “an abstract, freestanding right;” rather, to state a claim for
denial of access to the courts, an inmate must show actual injury. Id. at 351-52,
116 S. Ct. at 2180; see also Barbour, 471 F.3d at 1225-26. “Conclusory allegations
of an actual injury are insufficient.” Al-Amin v. Smith, 511 F.3d 1317, 1333 (11th
Cir. 2008).
Bounds and Lewis both dealt with the adequacy of prison law libraries. In
Bounds, the Fourth Circuit concluded that North Carolina’s prison-library plan
violated the Equal Protection Clause because it denied women the same access to
legal research facilities as men with no justification. 430 U.S. at 821, 97 S. Ct. at
1494. North Carolina appealed, and the Supreme Court affirmed, but on other
grounds; it held that “the fundamental constitutional right of access to the courts
requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or
28

Case: 17-11879

Date Filed: 05/24/2017

Page: 29 of 58

adequate assistance from persons trained in the law.” Id. at 828. In Lewis, the
Supreme Court reexamined the scope of Bounds, including whether a prisoner
must show that the inadequacies of a prison library or legal assistance program
caused the prisoner to suffer “actual injury.” 518 U.S. at 348, 116 S. Ct. at 2178.
The Supreme Court concluded “that an inmate alleging a violation of Bounds must
show actual injury” or imminent harm. Id. at 349, 116 S. Ct. at 2179.
To state a valid right-of-access claim, Arthur must show both that denying
his witness access to a phone actually prevents him from accessing the courts and
that he will specifically be prevented from bringing a colorable or viable
underlying Eighth Amendment claim. The cell phone is “not [an] end[] in [itself],”
but instead must be “the means for ensuring a reasonably adequate opportunity to
present claimed violations of fundamental constitutional rights to the courts.”
Lewis, 518 U.S. at 351, 116 S. Ct. at 2180. A witness’s lack of a cell phone in the
viewing room, and concomitant lack of ability to communicate with the court from
that room, does not independently qualify as an “actual injury” sufficient to state a
claim under Bounds and Lewis because, absent an underlying violation of a
fundamental right, no “injury in fact”—and thus no standing—has been shown.
See Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992)
(laying out the elements of constitutional standing; Lewis, 518 U.S. at 349, 116 S.

29

Case: 17-11879

Date Filed: 05/24/2017

Page: 30 of 58

Ct. at 2179 (explaining that the actual-injury requirement for a right-of-access
claim stems from “the doctrine of standing”).
In discussing this concept of standing, the United States Supreme Court in
Lewis wrote that “[i]t is for the courts to remedy past or imminent official
interference with individual inmates’ presentation of claims to the courts.” Lewis,
518 U.S. at 349, 116 S. Ct. at 2180 (emphasis added). While standing may be
based on an imminent injury, that injury must still be concrete and particularized,
as opposed to conjectural or hypothetical. See Lujan, 504 U.S. at 560, 112 S. Ct. at
2136. Moreover, the injury must be “likely,” as opposed to merely speculative,
such that it could be redressed by a favorable decision. Id. at 561, 112 S. Ct. at
2136. While we assume that Arthur retains his constitutional right of access until
the completion of any execution, Arthur has not offered anything more than the
speculative, conjectural possibility that something might go wrong during his
execution which would subject him to cruel and unusual punishment in violation of
the Eighth Amendment and that therefore Han must have a cell phone in the
viewing room to call a court to present an Eighth Amendment claim.
Arthur attempts to overcome this hurdle by pointing to the allegedly
“botched” execution of Ronald Bert Smith in Alabama on December 8, 2016 and
by asserting that his execution will be similarly problematic. However, this Court
has already determined that Arthur has failed to demonstrate that Alabama’s
30

Case: 17-11879

Date Filed: 05/24/2017

Page: 31 of 58

current midazolam-based lethal injection protocol creates an unconstitutionally
substantial risk of severe pain, either facially or as applied to him. See Arthur, 840
F.3d at 1303-04, cert. denied 137 S. Ct. 725 (2017).12 And the United States
Supreme Court itself has recognized that midazolam has been repeatedly and
successfully used numerous times without any problems as the first drug in a threedrug protocol. See id. at 1304 (citing Glossip, 576 U.S. at __, 135 S. Ct. at 2734,
2746).
When the Supreme Court decided Glossip at the end of June 2015, Florida
had conducted eleven executions using that protocol. Id. Oklahoma had used the

12

We recognize Arthur also points to the Brooks execution in January 2016, but that
occurred prior to the July 19, 2016 final judgment in Arthur’s previous midazolam § 1983 case
before the federal district court judge in the United States District Court for the Middle District
of Alabama.
And as to Brooks’s execution, Arthur makes only a conclusory allegation that one eye
was open and that this indicated Brooks was not adequately anesthetized. “[T]he fact that
Brooks opened one eye during his execution, without more, falls far short of a showing of . . . a
substantial risk of serious pain.” Grayson v. Warden, ___ Fed. App’x. ___, ___, No. 16-17167,
2016 WL 7118393, at *7 (11th Cir. Dec. 7, 2016) (unpublished) (per curiam). There are
insufficient factual details alleged in Arthur’s complaint, much less any evidence, about the
Brooks execution in this § 1983 case.
This lack of details does not appear to be accidental because a fuller account of Brooks’s
execution would not help Arthur’s case. For example, media reports about Brooks’s execution
directly contradict Arthur’s allegations. See Kent Faulk, Alabama Death Row inmate
Christopher Brooks’ last minutes, Al.com (Jan. 23, 2016). Brooks’s execution lasted about 27
minutes. Id. At approximately 6:11 p.m., the administration of 500 milligrams of midazolam
began. Id. “At 6:14 p.m. the chaplain stood up and backed away. Brooks was still and his
mouth slightly open, but his chest continued to move up and down.” Id. “At 6:17 p.m. the
corrections officer . . . approached to perform a consciousness test. The officer called out
Brooks’ name twice, pulled Brooks’ left eyelid back, and pinched the backside of Brooks’ left
arm, all to make sure he was sedated.” Id. “By 6:20 Brooks’ breathing had become undetectable
. . . . He never appeared to struggle or move.” Id. “Prison officials said doctors declared Brooks
dead at 6:38 p.m.” Id.

31

Case: 17-11879

Date Filed: 05/24/2017

Page: 32 of 58

protocol twice. Glossip, 576 U.S. at ___, 135 S. Ct. at 2734, 2746. Since Glossip,
there have been at least nine executions carried out using midazolam as part of a
three-drug protocol in Florida, Alabama, Virginia, and Arkansas. See Death
Penalty Information Center, https://deathpenaltyinfo.org/executions-united-states
(last visited May 22, 2017) (listing executions in 2015, 2016, and 2017).
Thus, even if we credit Arthur’s descriptions of what occurred during the
Smith execution, Arthur has not shown that inmate Smith’s initial irregular
movements were accompanied by, or the result of, unconstitutional pain and
suffering—and Arthur has not even come close to showing enough to upset this
Court’s prior conclusion that Alabama’s current midazolam-based lethal injection
protocol does not create an unconstitutionally substantial risk of severe pain as
applied to him. 13 Quite simply, Arthur has failed to allege a sufficiently imminent
underlying Eighth Amendment injury to support his access-to-courts claim.

13

As to the Smith execution, Arthur filed a declaration of Spencer Hahn, an attorney and
a witness to Smith’s execution, describing irregular movements by Smith. Notably, Hahn does
not state how long those movements lasted or exactly when the first drug was started or
completed. Of course, this is because witnesses do not know when the administration of the first
drug begins or ends and thus do not know whether the movements occurred before or after the
completion of the first sedative drug.
The State, in its response brief, calls Arthur’s characterization of the Smith execution
“inaccurate” and points out that, even if the descriptions are true, “the fact that Smith struggled
for breath, heaved, coughed, and clenched his fist, without more, falls far short of showing that
midazolam ‘is sure or very likely to cause serious illness and needless suffering.’” Gray v.
McAuliffe, No. 3:16CV982-HEH, 2017 WL 102970, at *12 (E.D. Va. Jan. 10, 2017) (citing
Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015)).
Smith’s execution, if anything, highlights what will undoubtedly be contradictory claims
with no medical evidence, if and when a court is called in the middle of an execution. According
to one report, Smith’s execution lasted 34 minutes, during which “Smith heaved and coughed for

32

Case: 17-11879

Date Filed: 05/24/2017

Page: 33 of 58

Furthermore, Arthur has failed to cite any controlling authority standing for
the proposition that visitors to a correctional facility (which is what Counsel Han
will be under Alabama law when witnessing his execution) have any independent
constitutional right to cell phone or landline access within the prison. Arthur has
also failed to cite any binding precedent suggesting that Alabama’s policy
prohibiting execution witnesses from having cell phone or landline access infringes
on the First or Eighth Amendments. 14 There is nothing in this record that suggests

about 13 minutes [10:34 to 10:47 p.m.] and underwent two consciousness tests to make sure he
couldn’t feel pain.” Kent Faulk, Alabama Death Row inmate Ronald Bert Smith heaved,
coughed for 13 minutes during execution, Al.com (Dec. 8, 2016),
http://www.al.com/news/birmingham/index.ssf/2016/12/alabama_death_row_inmate_is_se.html
#incart_std. Before the second consciousness test, the heaving and coughing had apparently
stopped. Id. That media report also indicates that Alabama Prison Commissioner Jeff Dunn
stated that he did not “see any reaction to the consciousness assessment.” Id. In sum, a fuller
account of Smith’s execution would not help Arthur’s case either.
14

We recognize that Arthur cites decisions from two federal district courts. The first
decision is McGehee v. Hutchinson, No. 4:17-cv-179, 2017 WL 1381663, at *28-29 (E.D. Ark.
Apr. 15, 2017). But the Eighth Circuit, without deciding the access-to-courts issue, later vacated
that same district court’s related orders granting the inmate stays of execution. McGehee v.
Hutchinson, 854 F.3d 488 (8th Cir. 2017).
The other case is Coe v. Bell, 89 F. Supp. 2d 962, 966-67 (M.D. Tenn. 2000), vacated as
moot due to inmate’s execution by Coe v. Bell, 230 F.3d 1357 (6th Cir. 2000) (unpublished).
Arthur’s reliance on Coe is misplaced because that case is materially different. There, the
Tennessee Department of Corrections’s rule only permitted an inmate’s attorney to visit him or
her up to one hour before the time of execution. Coe v. Bell, 89 F. Supp. 2d 962, 963 (M.D.
Tenn. 2000). Further, the Tennessee statute at that time did not even allow the death-sentenced
inmate to choose any witnesses. Id. at 963-64, 964 n.3. In light of these restrictions, the district
court in Coe held that the inmate had the right (1) to have “some access” to his counsel during
the last hour before the execution, and (2) to have his counsel witness the execution from either
the witness room or a room with closed-circuit live television transmission. Id. at 967. In light
of this holding that the inmate had the right to have counsel present in the room, the district court
concluded that counsel could have access to a telephone. Id. Thus, the injunctive relief granted
by the district court in Coe was limited to an injunction “prohibiting the Defendant from
preventing his counsel from witnessing Plaintiff’s execution[.]” Id.

33

Case: 17-11879

Date Filed: 05/24/2017

Page: 34 of 58

we should look past Arthur’s failure to allege any actual injury and intrude into a
state-administered and judicially-ordered execution in the manner proposed by
Arthur.
X. TURNER FACTORS
Lewis further explained that Bounds “must be read in pari materia” with
Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987), which held “that a prison
regulation impinging on inmates’ constitutional rights ‘is valid if it is reasonably
related to legitimate penological interests.’” Lewis, 518 U.S. at 361, 116 S. Ct. at
2185 (quoting Turner, 482 U.S. at 88, 107 S. Ct. at 2262). The courts thus must
“accord adequate deference to the judgment of the prison authorities,” especially
with inmates in lockdown or other inmates “presenting special disciplinary and
security concerns.” Id.; see also Hakim v. Hicks, 223 F.3d 1244, 1247 (11th Cir.
2000) (recognizing, in a § 1983 case brought by a death-row prisoner, that the
deferential Turner standard differs from “the strict standards of scrutiny applicable
to the constitutional rights of persons in free society”).

This case does not present the issue in Coe because Han’s presence in the execution
viewing chamber is permitted under Alabama law as a friend-witness. See Ala. Code § 15-1883(a)(7). We do not face the issue today of whether that Alabama statute (facially or as applied)
violates any constitutional provision or of whether a death-sentenced inmate has a right to have
counsel present in the viewing room.

34

Case: 17-11879

Date Filed: 05/24/2017

Page: 35 of 58

The Supreme Court has laid out four factors to “channel the reasonableness
inquiry” of Turner: (1) whether there is a “valid, rational connection” between the
regulation and a legitimate governmental interest put forward to justify it;
(2) whether there are alternative means of exercising the asserted constitutional
right that remain open to inmates; (3) whether and to what extent an
accommodation of the asserted right will impact the prison and prison staff; and
(4) whether the regulation is an “exaggerated response” to prison concerns.
Hakim, 223 F.3d at 1247-48 (internal quotation marks omitted).
We need not reach the Turner inquiry in the first instance because, for the
reasons explained above, Arthur fails to state a valid right-to-access-the-courtsclaim under Bounds and Lewis. But even if we were to reach that issue, it is not at
all clear that ADOC’s policy prohibiting witnesses to an execution from bringing
in their cell phones or having access to a landline in the viewing room would not
pass muster under the Turner factors. Indeed, we are dubious of Arthur’s
suggestion that there is no “legitimate penological justification” for forbidding
witness Han from having access to a phone in the viewing room itself.
To begin with, we can think of a couple of “valid, rational connections” to
legitimate government interests that might justify this prohibition. ADOC might,
for example, believe that a blanket cell phone ban would help protect the privacy
of prison officials involved in the administration of the procedure, given the
35

Case: 17-11879

Date Filed: 05/24/2017

Page: 36 of 58

ubiquity of cameras in modern cell phones. Alternately, even though Han offers to
have a simple cell phone with no camera, ADOC might be concerned with
preserving the solemnity of the execution process. Suffice it to say the policy is
not obviously lacking in a “valid, rational connection” to a legitimate interest.
And it is not clear that there is no alternative means of accessing the courts
apart from use of a phone within the viewing room itself. Although Arthur
summarily concludes that, without access to a phone, his friend-witness would be
unable to communicate with the court in the event of a constitutional problem, on
this record it has not been shown that Arthur’s friend-witness would be unable to
simply leave and contact the court once outside the prison.
As to the third factor, the district court cogently suggested that recognizing a
right-to-access claim in this context would lead to more potential harm to both the
inmate’s and the State’s interests than good. See Thaddeus-X v. Blatter, 175 F.3d
378, 390 (6th Cir. 1999) (explaining that, in considering an inmate’s First
Amendment claim, courts must “weigh[] the interests of the prison as an institution
(in such matters as security and effective operation) with the constitutional rights
retained by the inmates”). Arthur’s demand would lead to lawyers and judges,
non-medically-trained laypeople, attempting to deduce what drugs have been given
and in what amounts, the cause of any unusual physical reaction, and the short- and
long-term medical effects on the inmate, if any, of stopping an execution
36

Case: 17-11879

Date Filed: 05/24/2017

Page: 37 of 58

midstream. The inevitable outcome of such interference would be prolonged
executions and inmates suffering the possibly painful and deleterious effects of
starting and stopping the administration of lethal drugs. That lack of expertise,
combined with the confusion of a contemporaneous analysis conducted while the
protocol is actually being administered, would create a situation ripe for error.
Indeed, these very concerns were showcased during the 2014 execution of
Joseph Rudolph Wood—whose execution Arthur cited to in his complaint to show
that telephone access can allow attorneys to present contemporaneous Eighth
Amendment claims. Arthur did not discuss the events following Wood’s counsel’s
filing of the motion for a stay, but they are instructive.
After the motion was filed, the court held a telephone conference with both
Wood’s and the government’s counsel to determine whether to grant the motion.
The transcript of that conference reveals a conversation perfectly in line with what
the district court feared in this case. During the discussion of Wood’s stay, the
court noted that it was “very concerned” that “depending on the accuracy of the
information” it had received, “suspending the execution may do more harm than
good.” Transcript of Telephonic Hearing, Rudolph v. Ryan, No. CV 14-1447PHX-NVW (D. Ariz. July 23, 2014), ECF 31 at 11-12. And as the execution
progressed over the course of the conference, it became less and less clear what
action might be appropriate. In response to the court’s inquiry into what Wood’s
37

Case: 17-11879

Date Filed: 05/24/2017

Page: 38 of 58

counsel would have him do in light of reported changes in Wood’s condition,
Wood’s counsel replied that “when we filed this motion 45 minutes ago when we
got word that he was gasping for over an hour, our request was to immediately stay
the execution and perform lifesaving techniques. I’m not a medical professional. I
would still – [the attorney for the state] has said that the situation has changed.
Without further information, I’m not sure what more to say other than we’re
requesting the stay of execution. I’m not sure if it’s possible at this time.” Id. at
15-16. And ultimately, as the court was preparing to deny the motion for stay,
counsel for the state interrupted to inform the judge that Wood’s death had been
confirmed. Id. at 16. This chain of events illustrates the practical difficulties in
managing the competing concerns.
We repeat that Arthur has not raised a Sixth Amendment claim, provided
any argument on this point in his brief, or even cited the Sixth Amendment, and
therefore we have no occasion to address the matter today. Again, this case is
narrowly about only a friend-witness allowed in the viewing room under Alabama
Code § 15-18-83.
For all of these reasons, the district court did not err in finding that Arthur
failed to state a claim for relief because he did not show that ADOC’s policy
prohibiting a friend-witness’s possessing a cell phone or access to ADOC’s

38

Case: 17-11879

Date Filed: 05/24/2017

Page: 39 of 58

landline telephone in the viewing room during the injection of drugs in his
execution constitutes a violation of the First or Eighth Amendments.
XI. CONCLUSION
We recognize the importance of providing all criminal defendants, and
especially death-row inmates, the protections of the rule of law and access to
courts, but these considerations do not exempt claims (like this telephone-in-theviewing-room claim) made by death-row inmates from applicable statutes of
limitations and the ordinary limitations on equitable relief. Moreover, an accessto-courts claim must be based on an “actual injury.” On this record, none has been
shown. Thus, we hold that the district court correctly dismissed Arthur’s sixth
§ 1983 complaint as untimely or, alternatively, for failure to state a federal
constitutional claim. We affirm.
AFFIRMED.

39

Case: 17-11879

Date Filed: 05/24/2017

Page: 40 of 58

WILSON, Circuit Judge, dissenting:
The Constitution and common sense usually dictate the same result. This
case is no exception. An important constitutional right is at stake, and Alabama
can easily honor that right; all Alabama needs to do is afford Thomas Arthur
access to a telephone. Both the Constitution and common sense say Alabama
should do just that.
Arthur asked Alabama if one of his designated execution witnesses, his
attorney, could have access to a telephone during his execution. Alabama could
have easily granted this request. Affording the attorney-witness access to a
telephone, such as an already existing landline, would impose no real burden. But
Alabama said no. Deprived of access to a telephone, Arthur will be unable to seek
legal redress if, during the execution process, Alabama begins to subject him to
cruel and unusual punishment. Arthur’s right of access to the courts will be
thwarted. So, he filed this action, raising an access-to-courts claim.
Arthur is entitled to proceed past the pleadings stage on his access-to-courts
claim. The claim is a viable constitutional claim, and it is not time barred.
I. BACKGROUND

40

Case: 17-11879

Date Filed: 05/24/2017

Page: 41 of 58

Alabama plans to execute Arthur on May 25, 2017. Arthur’s attorney will
attend the execution as a witness.1 In October 2016, Arthur wrote a letter to the
Alabama Department of Corrections requesting permission for his attorney to
possess a cell phone during the execution or, alternatively, for his attorney to be
afforded access to a Department landline during the execution. The Department, in
November 2016, denied the request entirely. 2
Alabama’s denial prompted Arthur to immediately file an access-to-courts
claim under 42 U.S.C. § 1983 seeking an order that requires Alabama to afford him
access to a telephone. According to Arthur, Alabama’s refusal to afford him
access to a telephone will bar his access to the “courthouse door” if his execution
goes awry—a likely possibility, he contends, given that Alabama uses a
controversial lethal-injection cocktail and botched at least two recent executions.

1

The Majority, pointing to Alabama Code § 15-18-83, seems to imply that the attorney’s
ability to perform legal activities at the execution will be limited. Section 15-18-83 sets forth
who may attend an execution. It states that a death row prisoner can designate up to six friends
and family members to attend his execution. See Ala. Code § 15-18-83(a). If the prisoner wants
his attorney to attend his execution, he must use one of his “friend” slots for the attorney. The
Majority appears to contend that, because § 15-18-83 requires an attorney to attend an execution
in a “friend” slot rather than a designated “attorney” slot, the provision limits the attorney’s
ability to engage in legal activities. That argument, however, requires us to read an awful lot into
the provision. The provision merely lists groups of persons who can witness an execution; it is
silent on the activities that a witness can engage in. See id. And if the Alabama legislature
intended to ban attorneys from attending executions and engaging in legal activities, it could
have easily said that. One reason the legislature did not enact such a ban may be that the ban
would have triggered immediate legal challenges.
2
In the Department’s denial letter, which Arthur attached to his complaint, the
Department explicitly rejected Arthur’s request for his attorney to have access to a cell phone but
only generally addressed his landline request. The Department was nonetheless clear that
Arthur’s attorney will be completely barred from accessing a telephone during the execution.

41

Case: 17-11879

Date Filed: 05/24/2017

Page: 42 of 58

The district court dismissed Arthur’s case under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, finding that his access-to-courts claim is not legally
viable and that the claim is barred by the two-year statute of limitations for § 1983
claims arising in Alabama. The court concluded that (1) the claim is not a viable
access-to-courts claim because a death row prisoner does not have a right of access
to the courts during his execution process and (2) the claim is time barred because
the Department has had a policy since 2012 that prohibits prison visitors from
possessing cell phones.
II. STANDARD OF REVIEW
The standard of review in this case is critical. The Supreme Court has
discussed the standard for reviewing a Rule 12(b)(6) dismissal at length, providing
our court detailed instructions. We must follow the Court’s instructions at each
step and avoid a mere formulaic recitation of the standard.
We review de novo a Rule 12(b)(6) dismissal, limiting our “consideration to
the pleadings and exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225
F.3d 1228, 1231 (11th Cir. 2000) (per curiam). We must accept all the plaintiff’s
allegations as true and construe them “in the light most favorable to the plaintiff.”
Lopez v. First Union Nat’l Bank of Fla., 129 F.3d 1186, 1189 (11th Cir. 1997).
We must also “draw on [our] judicial experience and common sense” and take into
account the specific “context” surrounding the allegations. See Ashcroft v. Iqbal,
42

Case: 17-11879

Date Filed: 05/24/2017

Page: 43 of 58

556 U.S. 662, 679, 129 S. Ct. 1937, 1950 (2009); 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)). If, viewing the plaintiff’s allegations through this lens,
we conclude that the allegations support a plausible claim for relief, we must
reverse the dismissal. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
And in reviewing a Rule 12(b)(6) dismissal based on the statute of
limitations, we must reverse unless the plaintiff’s pleadings on their face “show
that relief is [time] barred.” See Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct. 910,
920–21 (2007); Grossman, 225 F.3d at 1231–32 (“A complaint may not be
dismissed pursuant to Rule 12(b)(6) unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” (internal quotation marks omitted)). Affirmative defenses such as the
statute of limitations usually must be pleaded and proven by the defendant, so if a
question exists as to whether the plaintiff’s claim is time barred, dismissal is
inappropriate. See Jones, 549 U.S. at 215, 127 S. Ct. at 920–21; Bryant v. Rich,
530 F.3d 1368, 1379–80 (11th Cir. 2008) (Wilson, J., concurring in part and
dissenting in part) (“Our usual practice is to consider affirmative defenses, such as
. . . [the] statute of limitations, on summary judgment . . . .”).
43

Case: 17-11879

Date Filed: 05/24/2017

Page: 44 of 58

III. THE RIGHT OF ACCESS TO THE COURTS
All “prisoners have a constitutional right of access to the courts.” See
Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494 (1977). The right is
fundamental, “grounded in the First Amendment, the Article IV Privileges and
Immunities Clause, the Fifth Amendment, and/or the Fourteenth Amendment.”
Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (per curiam); see also
Bounds, 430 U.S. at 828, 97 S. Ct. at 1498. It protects prisoners from “imminent
official interference with [their] presentation of claims to the courts.” Lewis v.
Casey, 518 U.S. 343, 349, 116 S. Ct. 2174, 2179 (1996). “[A]ccess to the courts
must be more than merely formal; it must also be adequate, effective, and
meaningful.” Chappell, 340 F.3d at 1282. A state “need not literally bar the
courthouse door” to violate the right. Id. at 1283 (internal quotation marks
omitted). Rather, a state can violate the right by, for example, failing to afford a
prisoner who seeks to pursue a constitutional claim access to a law library or some
other form of legal assistance. See Bounds, 430 U.S. at 828, 97 S. Ct. at 1498.
Of course, the right of access to the courts is not an “abstract, freestanding
right to a law library or legal assistance.” Lewis, 518 U.S. at 351, 116 S. Ct.
at 2180. “Meaningful access to the courts is the touchstone” of the right. Id. at
351, 116 S. Ct. at 2180 (emphasis added). And therefore a prisoner can establish
“actual injury” to the right only by showing that the state is impeding his pursuit of
44

Case: 17-11879

Date Filed: 05/24/2017

Page: 45 of 58

an “arguably actionable” constitutional claim. See id. at 349–51, 116 S. Ct.
at 2179–80.
The “doctrine of standing” requires a prisoner to establish such actual injury.
Id. at 349, 116 S. Ct. at 2179. The prisoner can satisfy this requirement by
showing that the state has already impeded his pursuit of a nonfrivolous claim. See
id. at 349, 116 S. Ct. at 2179 (“It is for the courts to remedy past or imminent
official interference with individual inmates’ presentation of claims to the
courts.”). Or if the prisoner seeks injunctive relief, he can show that an imminent
threat exists that the state will impede his pursuit of a nonfrivolous claim. See id.
at 349, 116 S. Ct. at 2179. But consistent with general standing principles, the
prisoner must show that the threat is “real and immediate.” See Shotz v. Cates, 256
F.3d 1077, 1081 (11th Cir. 2001) (internal quotation marks omitted); Cody v.
Weber, 256 F.3d 764, 770 (8th Cir. 2001) (“[T]he actual injury requirement derives
ultimately from the doctrine of standing, which directs that courts not get involved
unless a constitutional violation has occurred or there is a real and immediate threat
of such a violation.” (citation omitted)). That means the prisoner must establish a
“sufficient likelihood” that he will (1) suffer harm to his constitutional rights and
(2) be thwarted from seeking legal redress for the harm. See Wooden v. Bd. of
Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1283 (11th Cir. 2001) (“[T]o have
standing to obtain forward-looking relief, a plaintiff must show a sufficient
45

Case: 17-11879

Date Filed: 05/24/2017

Page: 46 of 58

likelihood that he will be affected by the allegedly unlawful conduct in the
future.”). An imminent threat of the state impeding a constitutional claim exists
only if the prisoner establishes both a real and immediate claim and real and
immediate interference with the claim.
IV. THE DISTRICT COURT ERRED IN DISMISSING
ARTHUR’S ACCESS-TO-COURTS CLAIM
Arthur asserts that Alabama’s refusal to afford him access to a telephone
during his execution process imminently threatens his right of access to the courts.
Alabama’s method of execution, Arthur argues, poses a real and immediate threat
of Eighth Amendment harm, but absent access to a telephone, he will be
completely denied access to the courts to seek relief from that harm.
Arthur’s access-to-courts claim is legally viable and timely.
A.
The district court erred in finding that Arthur’s access-to-courts claim is not
legally viable. Death row prisoners have a right to access the courts during the
execution process, and Arthur’s pleadings establish—at the very least—a plausible
claim for access-to-courts relief.
1.
The right of access to the courts is a fundamental right that exists until a
death row prisoner’s life is taken. The right does not vanish when a prisoner enters
the execution chamber and the state begins to tinker with the machinery of death.
46

Case: 17-11879

Date Filed: 05/24/2017

Page: 47 of 58

See Jones v. Comm’r, Ga. Dep’t of Corrs., 812 F.3d 923, 941 (11th Cir. 2016)
(Jordan, J., dissenting from denial of rehearing en banc) (“‘[A] prisoner under a
death sentence remains a living person, and consequently has an interest in his life’
that is protected by the Due Process Clause and which entitles him to ‘some
minimal procedural safeguards.’” (quoting Ohio Adult Parole Auth. v. Woodard,
523 U.S. 272, 288–89, 118 S. Ct. 1244, 1253–54 (1998) (O’Connor, J., concurring
in part and concurring in the judgment))).
Indeed, this must be the case given that a death row prisoner’s Eighth
Amendment right not to be subjected to cruel and unusual punishment exists until
his life is taken. See In re Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 933 (1890)
(recognizing that the Eighth Amendment protects individuals from “a lingering
death”); McGehee v. Hutchinson, No. 17-00179, slip op. at 57 (E.D. Ark. Apr. 15,
2017) (“[A prisoner’s Eighth Amendment] right[s] attach[] until his successful
execution.” (quoting Coe v. Bell, 89 F. Supp. 2d 962, 966 (M.D. Tenn.), vacated
as moot by 230 F.3d 1357 (6th Cir. 2000))). Because the prisoner retains this
Eighth Amendment right until his life is taken, he also retains his right of access to
the courts. Without the right of access to the courts, the prisoner’s Eighth
Amendment right would be no right at all. See McCray v. Sullivan, 509 F.2d 1332,
1337 (5th Cir. 1975) (“An inmate’s right of unfettered access to the courts is as
fundamental a right as any other he may hold. All other rights of an inmate are
47

Case: 17-11879

Date Filed: 05/24/2017

Page: 48 of 58

illusory without it.” (internal quotation marks omitted)).3 Without the right of
access to the courts, the execution chamber would become a black box shielded
from constitutional scrutiny.
2.
Arthur’s allegations are sufficient to support a claim that Alabama will
violate his right of access to the courts during his execution process. He has
established imminent actual injury to this right. A sufficient likelihood exists that
Arthur will suffer harm to his Eighth Amendment rights during the execution, and
there is no question that Alabama, by refusing to afford him access to a telephone,
will impede him from seeking legal redress for the harm. See Lewis, 518 U.S.
at 349–50, 116 S. Ct. at 2179; Wooden, 247 F.3d at 1283.
First, Arthur has, at this stage in the proceedings, established a real and
immediate Eighth Amendment claim. Taken as true and in the light most
favorable to Arthur, his allegations support a plausible inference that he will suffer
actionable Eighth Amendment harm during his execution process. Arthur alleges
that Alabama’s method of execution (lethal injection using midazolam as a
sedative) will cause him to suffer “agonizing pain.” And in support thereof, he
asserts, among other things, that (1) Alabama’s reliance on midazolam caused

3

Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding
that all decisions of the “old Fifth” Circuit handed down prior to the close of business on
September 30, 1981 are binding precedent in the Eleventh Circuit).

48

Case: 17-11879

Date Filed: 05/24/2017

Page: 49 of 58

Alabama to botch two recent executions, see O’Shea v. Littleton, 414 U.S. 488,
496, 94 S. Ct. 669, 676 (1974) (“[P]ast wrongs are evidence bearing on whether
there is a real and immediate threat of repeated injury.”); (2) because of his
“unique health circumstances,” Alabama’s lethal-injection cocktail will cause him
to suffer a painful heart attack; and (3) he could suffer a “paradoxical reaction to
midazolam.” Arthur has established a sufficient likelihood that an Eighth
Amendment claim will arise during his execution.
Second, Alabama’s refusal to afford Arthur access to a telephone will
impede his pursuit of that Eighth Amendment claim. 4 The refusal is an “imminent
official interference” with Arthur’s right of access to the courts. See Lewis, 518
U.S. at 349, 116 S. Ct. at 2179. Arthur will have no access to the courts—much
less meaningful access—if Alabama bars “telephonic access to the courts,” then
straps him to a gurney and begins to subject him to a cruel and unusual execution
process. See McGehee, slip op. at 58–59 (holding that a group of death row
prisoners, who asserted that Arkansas failed to guarantee “reasonable telephonic
access to the courts” during their executions, “sufficiently alleged” an access-to4

Alabama’s refusal also puts it at odds with other states. Arizona and Ohio both
specifically allow a death row prisoner’s attorney to access a telephone during the execution
process. See Ariz. Dep’t of Corrs., DO 710.13(1.5), Dep’t Order Manual (2015) (“While the
attorney witness is in the witness room, a member of the Witness Escort Team shall hold one
mobile phone designated by the attorney, to be made available to the attorney in exigent
circumstances.”); Ohio Dep’t of Rehab. and Corrs., Execution Rule VI(G)(2), Dep’t Rules and
Regulations (2015) (“If the prisoner chooses to have his or her counsel as a witness, at all times
after counsel enters the witness room, counsel shall have free access to the phone near the
entrance door of the Death House.”).

49

Case: 17-11879

Date Filed: 05/24/2017

Page: 50 of 58

courts claim). Alabama’s refusal to afford Arthur access to a telephone is no
different than a hypothetical policy that bars a prisoner in solitary confinement
from sending mail. The solitary-confinement prisoner is completely denied access
to the courts to raise a claim challenging how his sentence is being carried out. So
too is Arthur. Without access to a telephone, Arthur will have no access to the
courts to raise a claim challenging how his sentence (his execution) is being carried
out. Alabama is plainly interfering with Arthur’s right of access to the courts. See
Bounds, 430 U.S. at 822, 97 S. Ct. at 1495 (“[T]he state . . . may not abridge or
impair [a prisoner]’s right to apply to a federal court for [constitutional relief.]”).
The Majority, however, concludes that Arthur’s allegations do not establish
imminent actual injury because the allegations do not show a sufficient likelihood
that Arthur will suffer Eighth Amendment harm during his execution process. But
in so concluding, the Majority fails to adhere to the proper standard of review for
Rule 12(b)(6) dismissals—it subjects Arthur to a more rigid standard than is
permitted at this stage.
This case is only at the pleadings stage, and Arthur need only offer
allegations sufficient to make a threshold showing of imminent actual injury. He
must simply set forth “general allegations” that, when taken as true and in the light
most favorable to him, “suffice[] to claim injury . . . and hence standing to demand
remediation.” See Lewis, 518 U.S. at 357, 116 S. Ct. at 2183. Yet the Majority
50

Case: 17-11879

Date Filed: 05/24/2017

Page: 51 of 58

takes Arthur’s allegations about midazolam and Alabama’s two recent executions
neither as true nor in the light most favorable to him. The Majority instead
engages in factfinding by reviewing websites and newspaper articles and decides
that midazolam is not dangerous and that the two recent executions were not
botched. See Maj. Op. at 31–32 & nn.12, 13. Also, the Majority opines that,
because Arthur failed to show in a different proceeding that Alabama’s lethalinjection cocktail poses a substantial risk of Eighth Amendment harm, his
allegations in this case about the threat of Eighth Amendment harm are inadequate.
See id. at 31. But here, Arthur need only establish a risk of Eighth Amendment
harm that is sufficient to support standing; he does not need to satisfy the more
rigorous burden of showing a substantial risk of harm.
When we follow the Supreme Court’s instructions for reviewing Rule
12(b)(6) dismissals, Arthur has alleged more than enough to establish a real and
immediate threat of Eighth Amendment harm. We know Arthur will enter
Alabama’s execution chamber in the coming days. We know Alabama will inject
midazolam into him even though, according to Arthur, Alabama botched two
recent executions using midazolam. And based on judicial experience, see Iqbal,
556 U.S. at 679, 129 S. Ct. at 1950, we know the use of midazolam as a lethalinjection drug has led to botched executions across the country, see, e.g., Arthur v.
Dunn, 580 U.S. ___, ___, 137 S. Ct. 725, 733 (2017) (Sotomayor, J., joined by
51

Case: 17-11879

Date Filed: 05/24/2017

Page: 52 of 58

Breyer, J., dissenting from denial of certiorari) (“Science and experience are now
revealing that, at least with respect to midazolam-centered protocols, prisoners
executed by lethal injection are suffering horrifying deaths . . . .”).
But even if Arthur did not establish that Alabama’s method of execution
poses a specific threat of Eighth Amendment harm, I would, for practical reasons,
find problematic the Majority’s rejection of Arthur’s claim. Because of the unique
circumstances surrounding executions, I do not believe that dismissal of claims
like Arthur’s based on the actual-injury standing requirement is tenable.
Considering the risks inherent to the execution process, I would, even absent the
specific threats identified by Arthur, have difficulty concluding that he faces only a
“hypothetical” or “conjectural” threat of Eighth Amendment harm and actual
injury to his right of access to the courts. See Shotz, 256 F.3d at 1081 (internal
quotation marks omitted). Moreover, denying Arthur’s claim based on actual
injury leads to a seemingly paradoxical result. We reject the claim because Arthur
has not shown injury to his right of access to the courts, but in doing so, we forever
preclude him from bringing a claim—even if his right is injured during his
execution process. Denied access to a telephone, Arthur will not be able to access
the courts during the execution. And because he will never exit the execution

52

Case: 17-11879

Date Filed: 05/24/2017

Page: 53 of 58

chamber, if his right of access to the courts is injured during the execution, he will
never be able to vindicate the right.5
B.
The district court also erred in finding that Arthur’s access-to-courts claim is
time barred. Arthur’s pleadings do not on their face “show that relief is [time]
barred.” See Jones, 549 U.S. at 215, 127 S. Ct. at 920–21.
In access-to-courts cases, the statute of limitations begins to run “only when
the [prisoner] knew or should have known that [he] ha[s] suffered injury to [his]
right of access and who caused it.” See Chappell, 340 F.3d at 1283. Because an
actual injury to a prisoner’s right of access to the courts does not arise until the
state interferes with the prisoner’s pursuit of a nonfrivolous claim or until such
interference is imminent, two things must happen before knowledge of an injury
can be attributed to the prisoner. See Lewis, 518 U.S. at 349–51, 116 S. Ct. at
2179–80. First, the prisoner must suffer some arguably actionable harm to his
constitutional rights (or a threat of such harm must develop). Second, the state

5

In addition to finding that Arthur has failed to establish actual injury, the Majority avers
that Arthur’s access-to-courts claim is unavailing because legitimate penological interests
support Alabama’s decision to deny Arthur access to a telephone. However, I struggle to see
how providing access to a telephone, as other states have done, is sufficiently burdensome to
justify infringement of a fundamental constitutional right. Further, the record at this time simply
does not support dismissal based on this issue of penological interests—whether legitimate
penological interests support Alabama’s decision to deny Arthur access to a telephone is a factintensive question.

53

Case: 17-11879

Date Filed: 05/24/2017

Page: 54 of 58

must impede (or threaten to impede) the prisoner’s pursuit of a claim based on the
harm.
Arthur’s pleadings show neither that he knew nor that he should have known
of an actual injury to his right of access to the courts more than two years ago. Far
from it. Viewing Arthur’s pleadings in the light most favorable to him, the
pleadings establish that Alabama did not even begin interfering with access to the
courts until 2016.
1.
As a threshold matter, Arthur’s access-to-courts claim could not have
accrued prior to September 2014 because the threat of Eighth Amendment harm
underlying his claim could not have begun to develop until then. Arthur asserts
that he faces a threat of Eighth Amendment harm during his execution process
because Alabama uses midazolam in its lethal-injection cocktail, and Alabama did
not begin using midazolam until September 2014. See Brooks v. Warden, 810 F.3d
812, 816–17 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, 136 S. Ct. 979
(2016).
The Majority, however, concludes that Arthur’s access-to-courts claim arose
as far back as 2012. But the claim could not have arisen, and Arthur’s statute of
limitations could not have started running, until the threat of Eighth Amendment
harm underlying his claim developed. Before such harm developed, Arthur had no
54

Case: 17-11879

Date Filed: 05/24/2017

Page: 55 of 58

basis to allege an access-to-courts violation: he had no real and immediate claim
that could be impeded. Had Arthur brought an access-to-courts claim without
identifying a specific Eighth Amendment threat posed by Alabama’s current
execution process, Alabama could have sought dismissal based on standing,
ripeness, or both.
The Majority fails even to consider this issue of when a threat of Eighth
Amendment harm developed. That oversight leads the Majority to reach two
irreconcilable conclusions. On the one hand, the Majority concludes that Arthur’s
access-to-courts claim is time barred—which means a threat of Eighth Amendment
harm must have developed more than two years ago. On the other hand, the
Majority finds that Arthur has not shown actual injury because he has not
established a threat of Eighth Amendment harm. How can that be?
2.
Ultimately, however, the issue of when the threat of Eighth Amendment
harm arose is irrelevant because Alabama did not even begin interfering with
Arthur’s access to the courts until 2016.
The district court determined that the Department interfered with Arthur’s
access to the courts when it enacted its no-cell-phones policy in 2012. Not so. The
policy, by itself, does not impede Arthur from pursuing a claim during his
execution because it does not completely bar an execution witness’s access to a
55

Case: 17-11879

Date Filed: 05/24/2017

Page: 56 of 58

telephone. At most, it bars a witness from possessing a cell phone during the
execution—it does not bar access to, for example, a Department landline. In
denying Arthur’s phone-access request in 2016, the Department for the first time
decided that Arthur’s attorney could neither possess a cell phone nor access a
Department landline. Only with that denial did Alabama begin interfering with
Arthur’s access to the courts; only with that denial did an imminent actual injury to
his right of access to the courts arise.
But even if the no-cell-phones policy could somehow be read as a complete
bar to telephone access, Arthur’s pleadings would not on their face show that the
policy began interfering with his access to the courts more than two years ago.
Arthur’s complaint and attached exhibits 6 indicate that the policy is, in practice, a
discretionary policy and that Alabama did not impose the policy on him until
November 2016. Arthur specifically alleges that the policy is discretionary, and in
his October 2016 letter to the Department requesting access to a telephone, he
noted that the Department has a record of allowing exceptions to the policy (for
example, to members of the media). Also, in a letter responding to Arthur’s
request, the Alabama Attorney General stated that the “decision [of whether to
grant the request] ultimately rests with the Commissioner of the Alabama

6

In addition to the Department’s November 2016 letter denying Arthur’s phone-access
request, the attached exhibits include the request itself and a response to the request from the
Alabama Attorney General.

56

Case: 17-11879

Date Filed: 05/24/2017

Page: 57 of 58

Department of Corrections.”7 (emphasis added). These averred facts raise a
question of whether the policy is discretionary. 8 And if the policy is indeed
discretionary, the policy would not interfered with Arthur’s access to the courts
until the Department “applied [the] policy” to him—the interference would not
have arisen until the Department made the “decision” in 2016 to deny his phoneaccess request. See Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261
(11th Cir. 2003) (per curiam).
*

*

*

As a final note on the issue of timeliness, I find unconvincing the Majority’s
conclusion that Arthur’s access-to-courts claim is subject to dismissal based on
unreasonable delay. Arthur did not unreasonably delay filing his claim; he filed it
within the statute of limitations period. See SCA Hygiene Prod. Aktiebolag v. First
Quality Baby Prod., LLC, 580 U.S. ___, ___, 137 S. Ct. 954, 959 (2017)
(“Laches . . . cannot be invoked to bar legal relief in the face of a statute of
limitations enacted by Congress.” (internal quotation marks omitted)). Even more
so, Alabama has not shown any prejudice arising from the timing of Arthur’s
7

Notably, the Majority, in discussing the Attorney General’s response, overlooks this
part of the response.
8
Cutting against Arthur’s “discretionary” argument, the Department, in its November
2016 denial letter, asserted that the no-cell-phones policy is not discretionary. The Majority
seems to believe that this statement alone establishes that the policy is not discretionary. See
Maj. Op. at 22 n.10. It does not. Arthur has set forth allegations that undermine the statement,
and those allegations, taken in the light most favorable to him, at the very least support a
plausible inference that the policy is discretionary. Dismissal is not appropriate at the pleadings
stage simply because the defendant has refuted the plaintiff’s allegations.

57

Case: 17-11879

Date Filed: 05/24/2017

Page: 58 of 58

filing. See Watz v. Zapata Off-Shore Co., 500 F.2d 628, 633 (5th Cir. 1974)
(“[A]bsence of prejudice . . . will repel a claim of laches.”).
V. CONCLUSION
Thomas Arthur’s right of access to the courts is an important constitutional
right. Honoring that right does not require Alabama to do much. Alabama simply
has to provide Arthur access to a telephone during his execution.
I respectfully dissent.

58