Arthur v. Thomas et al (DEATH PENALTY)

Filing 263

ORDERED that Arthur's 256 motion for leave to amend is GRANTED IN PART and DENIED IN PART, as further set out in order; further ORDERED that the State's 244 motion to dismiss is DENIED with LEAVE TO REFILE within 7 days after the filing of Arthur's third amended complaint. Signed by Chief Judge William Keith Watkins on 10/5/2015. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
THOMAS D. ARTHUR,
Plaintiff,
v.
WALTER MYERS, et al.,
Defendants.

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CASE NO. 2:11-cv-438-WKW
(WO – Do Not Publish)

ORDER
Before the court is Plaintiff Thomas D. Arthur’s Motion for Leave to File
Third Amended Complaint (Doc. #256), which was filed on August 25, 2015. The
State filed an opposition on September 10, 2015 (Doc. # 261), and Arthur filed a
reply on September 17, 2015 (Doc. # 262). Having considered the foregoing, and
for the reasons explained below, the court finds that Arthur’s motion is due to be
GRANTED IN PART and DENIED IN PART.
“The decision whether to grant leave to amend a complaint is within the sole
discretion of the district court.” Laurie v. Ala. Ct. of Criminal Appeals, 256 F.3d
1266, 1274 (11th Cir. 2001). However, Rule 15 of the Federal Rules of Civil
Procedure instructs courts to “freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). “[T]o successfully oppose a motion for leave to amend, the
opposing party must provide a substantial reason to the court.” Shorter v. Dollar,

No. 3:11-cv-531-WHA, 2012 WL 602357, at *2 (M.D. Ala. Feb. 24, 2012)
(alteration to original). “Such reasons include ‘undue delay, bad faith, dilatory
motive on the part of the movant, . . . undue prejudice to the opposing party by virtue
of allowance of the amendment, [and] futility of amendment.’” Id. (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)) (alterations in original).
Arthur seeks amendment of his complaint to include additional allegations
concerning pentobarbital as an alternative method of execution, to allege sodium
thiopental and the firing squad as additional alternative methods of execution, and
to include additional allegations concerning the constitutional inadequacy of
midazolam as used in the State’s current lethal injection protocol. The court will
grant Arthur leave to amend his complaint to include all of these proposed
allegations except those identifying a firing squad as an alternative method of
execution. This is because execution by firing squad is not permitted by statute and,
therefore, is not a method of execution that could be considered either feasible or
readily implemented by Alabama at this time. See Ala. Code § 15-18-82.1(a)−(b).
Accordingly, it is ORDERED that Arthur’s motion for leave to amend (Doc.
# 256) is GRANTED IN PART and DENIED IN PART. It is DENIED to the extent
Arthur seeks to include a firing squad as an alternative method of execution and
GRANTED in all other respects. Arthur shall file, on or before October 13, 2015,
the proposed amended complaint attached as Exhibit A to his motion for leave to
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file third amended complaint, with references to a firing squad being removed in
accordance with this Order. It is further ORDERED that the State’s motion to
dismiss (Doc. # 244) is DENIED with LEAVE TO REFILE within seven (7) days
after the filing of Arthur’s third amended complaint.
DONE this 5th day of October, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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