Arthur v. Thomas et al (DEATH PENALTY)

Filing 37

MEMORANDUM OPINION AND ORDER granting 23 MOTION to Dismiss; declining supplemental jurisdiction over Count IV. Signed by Honorable Judge Mark E. Fuller on 11/3/2011. (br, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
THOMAS D. ARTHUR,
Plaintiff,
v.
KIM THOMAS, Interim
Commissioner, Alabama Department
of Corrections, et al.,
Defendants.

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CASE NO. 2:11-cv-438-MEF
(WO)

MEMORANDUM OPINION AND ORDER
Thomas D. Arthur is an Alabama death row inmate who is likely to face imminent
execution under the Alabama Department of Corrections’s (“ADOC”) revised lethal injection
protocol that replaces the first drug of its three drug cocktail – sodium thiopental – with
pentobarbital.1 Arthur commenced this 42 U.S.C. § 1983 action on June 8, 2011, amid a
challenge by Eddie Powell (another Alabama death row inmate) to ADOC’s replacement of
sodium thiopental with pentobarbital. After Powell’s death by execution under Alabama’s
revised protocol, Arthur filed an Amended Complaint (Doc. # 12) that is before the Court on
Defendants’ fully-briefed motion to dismiss, or in the alternative, for summary judgment
(Docs. # 23, 33, 34). Upon careful consideration of the arguments of counsel and the
relevant law, the Court concludes that Defendants’ motion to dismiss is due to be
GRANTED.

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On October 25, 2011, the State of Alabama filed a motion to set an execution date with the
Alabama Supreme Court. The State attached the motion to a Notice (Doc. # 35) filed with this Court.

I. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and
1367(a). The parties do not contest personal jurisdiction or venue, and the court finds
adequate allegations in support of both.
II. STANDARD OF REVIEW
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may
raise a statute of limitations defense when the complaint shows on its face that the limitations
period has run. Avco v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir. 1982); see
also Bhd. of Locomotive Eng’rs and Trainmen Gen. Comm. of Adjustment CSX Transp. N.
Lines v. CSX Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008) (“A Rule 12(b)(6) dismissal
on statute of limitations grounds is appropriate only if it is apparent from the face of the
complaint that the claim is time-barred.”).
In assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the
factual allegations set forth in the complaint are true and construe them in a light most
favorable to the plaintiff. See Baloco ex rel. Tapia v. Drummond Co., Inc., 640 F.3d 1338,
1344-45 (11th Cir. 2011). However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint need not contain “detailed
factual allegations,” but must include enough facts “to raise a right to relief above the
speculative level on the assumption that all allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555. In addition to considering the properly
pleaded allegations in a complaint, the court may also consider on a motion to dismiss any
exhibits attached to the complaint, see Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275,
1288 (11th Cir. 2005), as well as “documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007).
III. BACKGROUND
A.

Arthur’s Crimes and Conviction2
In 1982, Arthur was serving a life sentence after being convicted of the murder of a

relative of his common-law wife in 1977. He had shot the victim in the right eye, causing
nearly instant death. By early 1982, Arthur was on work-release and was involved in a
sexual relationship with a married woman named Judy Wicker. At Mrs. Wicker’s urging,
the affair turned deadly when Arthur murdered her husband, Troy Wicker, on February 1,
1982. As Troy Wicker lay in his bed, Arthur, disguised as an African-American man, shot
him once in his right eye, causing nearly instant death.
After two reversals of convictions, an Alabama jury convicted Arthur of Troy
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See generally Ex parte Arthur, 711 So. 2d 1097 (Ala. 1997); Arthur v. State, 711 So. 2d 1031
(Ala. Crim. App. 1996).

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Wicker’s murder at his third trial. At the penalty phase, Arthur took an unusual position by
arguing for a capital sentence. Arthur stated on the record his belief that he could obtain a
reversal if sentenced to death, that the sentence would never be carried out, and that he would
receive better prison accommodations on death row. Despite cautioning Arthur against this
extraordinary legal tactic, the trial court allowed him to proceed, but refused to exclude
mitigating evidence. By a vote of eleven to one, the jury obliged Arthur’s request and
recommended capital punishment. The trial court agreed and imposed the death sentence.
Arthur’s convictions became final after the Alabama Supreme Court’s 1997 decision in Ex
parte Arthur, 711 So. 2d 1097. Arthur did not file a petition for certiorari with the United
States Supreme Court.
B.

Arthur’s Collateral Attacks
The Alabama Supreme Court set its first execution date on April 27, 2001, after which

Arthur began to collaterally challenge his conviction and sentence for the first time. The next
ten or so years were highlighted by numerous post-conviction petitions filed in state court
and federal habeas petitions, several § 1983 actions, and three missed execution dates. See
Arthur v. King, 500 F.3d 1335, 1337-38 (11th Cir. 2007) (listing Arthur’s proceedings as of
the date of the opinion, which would have been titled “Arthur XXII” by the court’s count);
see also Arthur v. State, No. 08cr1944, 2010 WL 1740415 (Ala Crim. App. April 30, 2010)
(denying a subsequent Rule 32 petition).

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C.

ADOC’s Lethal Injection Protocol and Recent Revision
On July 1, 2002, Alabama adopted lethal injection as its preferred method of

execution and gave inmates already on death row 30 days to affirmatively select
electrocution. Arthur did not opt out of the lethal injection protocol and became subject to
execution by lethal injection on July 31, 2002. Ala. Code § 15-18-82.1(a) and (b); see also
McNair v. Allen, 515 F.3d 1168, 1171 (11th Cir. 2008). Pursuant to subsection (g) of the
same statute, “[t]he policies and procedures of [ADOC] for execution of persons sentenced
to death shall be exempt from the Alabama Administrative Procedure Act . . . .” Ala. Code
§ 15-18-82.1. In other words, neither the protocol itself nor the process by which ADOC
amends the protocol is publicly available. In his Amended Complaint, Arthur describes
ADOC’s lethal injection protocol as “shrouded in secrecy.” (Am. Compl. ¶ 6.)
Despite the alleged secrecy, it was well known that, until April 26, 2011, ADOC
conducted lethal injections by administering three drugs sequentially to achieve a loss of
consciousness, paralysis, and finally death by cardiac arrest. The drugs administered were
sodium thiopental, pancuronium bromide, and potassium chloride. However, due to wellchronicled circumstances that made sodium thiopental all but unavailable, ADOC announced
publicly on April 26, 2011 that it was changing the first drug in its lethal injection protocol
from sodium thiopental to 2,500 mg of pentobarbital. (Am. Compl. ¶¶ 32-46, 60; see also
Am. Compl., Ex. A (“Media Advisory”).)

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On July 23, 2011, Arthur filed his Amended Complaint under § 1983. His primary
claim is that Alabama’s intention to execute him using pentobarbital creates an “objectively
intolerable risk of harm,” Baze v. Rees, 553 U.S. 35, 50 (2008), and violates his Eighth
Amendment right to be free from cruel and unusual punishment. In support of this claim,
Arthur avers that pentobarbital is “intermediate-acting” and takes effect more slowly than the
“ultrashort-acting” sodium thiopental, (Am. Compl. ¶¶ 3, 58); refers to the declarations of
two experts who conclude “that the use of pentobarbital would very likely cause serious
harm[,]” (Am. Compl. ¶ 4); points to the executions of Eddie Powell in Alabama and of Roy
Blankenship in Georgia, and their alleged responses to pentobarbital as evidence of
pentobarbital’s ineffectiveness, (Am. Compl. ¶¶ 62-66); and cites a position paper by
Lundbeck, Inc., the sole U.S. manufacturer of pentobarbital, wherein the company states that
it opposes the use of pentobarbital for executions because such use “falls outside its approved
indications” and because Lundbeck could not “assure the . . . efficacy” of the drug in such
a setting, (Am. Compl. ¶ 48).
In Count II, Arthur alleges that ADOC’s “veil of secrecy” regarding its lethal injection
protocol violates his right to due process of law under the Fourteenth Amendment. (Am.
Compl. ¶¶ 106-110.) Count III alleges that ADOC’s alleged failure to follow its protocol in
the execution of Eddie Powell violates the equal protection clause of the Fourteenth
Amendment. (Am. Compl. ¶¶ 111-117.) Finally, in Count IV, a state law claim, Arthur
alleges that Alabama’s lethal injection statute impermissibly delegates to ADOC absolute

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authority regarding its lethal injection protocol in violation of § 43 of the Alabama
Constitution.
IV. DISCUSSION
A.

Counts I and II Are Barred by the Statute of Limitations
“‘All constitutional claims brought under § 1983 are tort actions, subject to the statute

of limitations governing personal injury actions in the state where the § 1983 action has been
brought.’” Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir. 2008) (quoting McNair, 515
F.3d at 1173). Because Alabama’s statute of limitations governing general tort actions is two
years, see Ala. Code § 6-2-38(l), Arthur must have brought these claims within two years of
their accrual date. See Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989).
A “method of execution claim accrues on the later of the date on which state review
is complete, or the date on which the capital litigant becomes subject to a new or
substantially changed execution protocol.” McNair, 515 F.3d at 1174. Defendants argue that
Arthur last became subject to a new substantially changed execution protocol on July 31,
2002, when Alabama adopted lethal injection. Powell v. Thomas, 643 F.3d 1300, 1304 (11th
Cir. 2011) (stating that “Powell’s challenge to execution by lethal injection accrued on July
31, 2002, absent a later ‘significant change’ in the state execution protocol”). Arthur
proposes that the recent switch to pentobarbital constitutes a just such a change, and has
given rise to a new method of execution claim not barred by the statute of limitations.

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The flaw with Arthur’s argument is that recent decisions from the Eleventh Circuit
foreclose his method of execution claim in Count I. In Powell(Williams) v. Thomas, 641
F.3d 1255, 1258 (11th Cir. 2011), the Eleventh Circuit, addressing the plaintiff’s claim that
he had an Eighth Amendment right to know the details of his execution, stated that “[t]he
replacement of sodium thiopental with pentobarbital does not constitute a significant
alteration in the ADOC’s lethal injection protocol . . . .” Id. In Powell, the Eleventh Circuit
characterized the statement from Powell(Williams) as “binding precedent” and reasoned that
“if the change in protocol is not a ‘significant alteration’ for purposes of an Eighth
Amendment notice claim, we cannot see how it would constitute a significant change for
purposes of a statute of limitations’ triggering date” on an Eighth Amendment method of
execution claim. 643 F.3d at 1305. The Powell court then stated that it was “obliged to
reject Powell’s attempt to relitigate the issue of whether the ADOC’s action in changing the
first drug in the lethal injection protocol from sodium thiopental to pentobarbital is a
‘significant’ change for purposes of McNair.” Id.
Arthur attempts to distinguish his case from Powell and Powell(Williams) by arguing
that he has “presented evidence that has not yet been considered by the Eleventh Circuit or
any District Court in this Circuit.” (Pl.’s Resp. 10 (Doc. # 33).) The Eleventh Circuit
considered and rejected just such an argument in DeYoung v. Owens, 646 F.3d 1319, 1325
(11th Cir. 2011). In that case, DeYoung attempted to distinguish his case from Powell and
Powell(Williams) by “argu[ing] that the evidence he proffered in this record undermines the

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premise of Powell.” Id. Relying on principles of law regarding previous panel holdings, the
Eleventh Circuit stated that “‘the mere act of proffering additional reasons not expressly
considered previously will not open the door to reconsideration of the question by a second
panel.’” Id. (quoting Smith v. GTE Corp., 236 F.3d 1292, 1302 (11th Cir. 2001)).3
Accordingly, Arthur’s attempt to distinguish his case based upon “additional reasons” does
not change the Court’s statute of limitations analysis, and Count I is due to be dismissed.
As to Arthur’s claim in Count II – a Fourteenth Amendment due process claim
challenging ADOC’s “veil of secrecy” regarding its lethal injection protocol – the Eleventh
Circuit in Powell held that Powell’s identical claim was barred by the statute of limitations.
Powell, 643 F.3d at 1305 (“As the district court held, Powell could have challenged the
ADOC’s ‘secrecy’ surrounding the method of execution beginning July 31, 2002, as the facts

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The court then indulged DeYoung by evaluating his additional evidence, and concluded that
the evidence did not undermine the Powell and Powell(Williams) holdings. DeYoung’s additional
evidence included accounts of the Roy Blankenship and Eddie Powell executions, also cited by Arthur as
evidence that the pentobarbital substitution creates an “objectively intolerable risk of harm,” Baze, 553
U.S. at 50. This evidence was rejected in DeYoung in the context of evaluating a motion for a stay. Id. at
1325-27 & n.5. Even accepting as true Arthur’s evidence regarding the Powell and Blankenship
executions at the motion to dismiss stage, Powell’s and Blankenship’s alleged reactions to pentobarbital
are not sufficient to undermine legally the Powell and Powell(Williams)’s statute of limitations analyses
under McNair. See also Iqbal, 129 S. Ct. at 1949 (stating that “the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions”). The Lundbeck
position paper cited by Arthur was rejected in the motion to stay context in Valle v. Singer, 655 F.3d
1223 (11th Cir. 2011), and is equally insufficient. Finally, Arthur presents the declarations of Dr. David
Lubarsky and Dr. Mark Heath (Am. Compl., Exs. A & B), both of whom suggest that pentobarbital may
take far longer to achieve unconsciousness than sodium thiopental. (Lubarsky Decl. ¶ 8 (15 to 60
minutes for pentobarbital versus 60 seconds for sodium thiopental); Heath Decl. ¶ c.) The Eleventh
Circuit has considered and rejected similar arguments regarding the length of time for pentobarbital to
take effect. DeYoung, 646 F.3d at 1327. Put succinctly, the Court is bound by the body of law from the
Eleventh Circuit holding that the pentobarbital substitution “does not constitute a significant alteration of
the ADOC’s lethal injection protocol[.]” Powell(Williams), 641 F.3d at 1258; Powell, 643 F.3d at 1305;
DeYoung, 646 F.3d at 1325, 1327; Valle, 655 F.3d 1223, App’x at 25.

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supporting this cause of action ‘should have been apparent to any person with a reasonably
prudent regard for his rights.’” (quoting McNair, 515 F.3d at 1177)). Like Powell, Arthur
was on death row as of July 31, 2002, and could have challenged ADOC’s “secrecy”
beginning on the effective date of the statute. Id. The same result is mandated in this case,
and Count II is due to be dismissed as barred by the statute of limitations.
B.

Count III: The Fourteenth Amendment Equal Protection Claim
To state an equal protection claim, Arthur must show that the State will treat him

disparately from other similarly situated persons. See DeYoung, 646 F.3d at 1327 (citing
Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009)). Arthur alleges that
ADOC’s failure to follow its protocol in the execution of Eddie Powell – allegedly by not
observing its consciousness assessment fully, which includes pinching the condemned
inmate’s arm – “burden[s] Mr. Arthur’s fundamental right to be free from cruel and unusual
punishment . . . .” (Am. Compl. ¶ 117.) Assuming that observation of the “pinch test” is
constitutionally significant, Arthur’s allegation, that ADOC’s protocol was not followed in
one prior execution, does not raise his right to relief above a speculative level. See Twombly,
550 U.S. at 555. Count III is due to be dismissed for failure to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6).
C.

Count IV: Violation of Alabama’s Constitution
28 U.S.C. § 1367(c) states that “the district courts may decline to exercise

supplemental jurisdiction over a claim under subsection (a) if . . . the district court has

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dismissed all claims over which it has original jurisdiction . . . .” § 1367(c)(3). Having
dismissed Plaintiff’s § 1983 claims, the court exercises its discretion to decline supplemental
jurisdiction over Plaintiff’s claim that Alabama’s lethal injection statute, Ala. Code § 15-1882, violates the Alabama Constitution. See Shotz v. City of Plantation, Fla., 344 F.3d 1161,
1185 (11th Cir. 2003) (a district court’s decision to decline supplemental jurisdiction is
reviewed for abuse of discretion).
V. CONCLUSION
Arthur’s Eighth Amendment method of execution and Fourteenth Amendment due
process claims are barred by the applicable statute of limitations. Arthur was required to file
his claims on or before July 31, 2004. Arthur’s Fourteenth Amendment equal protection
claim is too speculative to survive Defendants’ motion to dismiss. Finally, the Court declines
to exercise supplemental jurisdiction over Arthur’s state law claim. Accordingly, it is
ORDERED that Defendants’ Motion to Dismiss (Doc. # 23) is GRANTED; and
supplemental jurisdiction over Count IV is DECLINED.
An appropriate final judgment will be entered.
DONE this 3rd day of November, 2011.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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