In Re: Alabama Lethal Injection Protocol Litigation (DEATH PENALTY)(LEAD)

Filing 192

MEMORANDUM OPINION AND ORDER: ORDERED that: 1. Defendants' Motion for Summary Judgment on Plaintiffs' Eighth Amendment claims (Doc. # 127 ) is GRANTED. 2. Judgment is entered in Defendants' favor on the Eighth Amendment claims of Plai ntiffs Carey Dale Grayson, Demetrius Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt. 3. Pursuant to Federal Rule of Civil Procedure 54(b), and the court's finding that there is no just reason for delay, a Final Judgment in Defend ants' favor on all claims asserted by Demetrius Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt will be entered contemporaneously with this Memorandum Opinion and Order. 4. All claims asserted by Plaintiffs Frazier, Roberts, Myers , and Hunt against Defendants having been resolved, the actions filed by Demetrius Frazier (2:13- cv-0781-WKW), David Lee Roberts (2:14-cv-1028-WKW), Robin Dion Myer (2:14- v-1029-WKW), and Gregory Hunt (2:14-cv-1030-WKW) are DISMISSED. 5. There bein g no just reason for delay, pursuant to Federal Rule of Civil Procedure 54(b), this is a final and appealable Order as to Plaintiffs Demetrius Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt. 6. Grayson's Fourteenth Amendment claim remains pending. Signed by Chief Judge William Keith Watkins on 10/31/2016. (kh, ) Modified on 10/31/2016 to correct the text. (kh, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

CAREY DALE GRAYSON,
DEMETRIUS FRAZIER,
DAVID LEE ROBERTS,
ROBIN DION MYERS, and
GREGORY HUNT,
Plaintiffs,
v.
JEFFERSON S. DUNN, et al.,
Defendants.

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CASE NOS. 2:12-CV-0316-WKW
2:13-CV-0781-WKW
2:14-CV-1028-WKW
2:14-CV-1029-WKW
2:14-CV-1030-WKW

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CASE NOS. 2:16-CV-0267-WKW
2:16-CV-0268-WKW
2:16-CV-0269-WKW
2:16-CV-0270-WKW
2:16-CV-0284-WKW

and

CHARLES LEE BURTON,
ROBERT BRYANT MELSON,
RONALD BERT SMITH,
GEOFFREY TODD WEST,
TORREY TWANE MCNABB,
Plaintiffs,
v.
JEFFERSON S. DUNN, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
I. BACKGROUND
Plaintiffs Carey Dale Grayson, Demetrius Frazier, David Lee Roberts, Robin
Dion Myers, and Gregory Hunt are Alabama death-row inmates who have been
committed to the custody of the Alabama Department of Corrections (“ADOC”)
awaiting their presently unscheduled executions. They each filed separate actions
under 42 U.S.C. § 1983 challenging the constitutionality of Alabama’s method-ofexecution under the Eighth Amendment to the United States Constitution. Because
these actions involve common questions of fact and law, on September 5, 2015, the
court consolidated these five cases for discovery and trial in order to promote judicial
economy, eliminate duplication of discovery, and avoid unnecessary costs. (See
Doc. # 59.)
This matter is before the court on Defendants’ Motion for Summary Judgment
on Plaintiffs’ Eighth Amendment claims. (Doc. # 127.) The motion has been fully
briefed and is ripe for review. Defendants’ motion is due to be granted.
A.

Plaintiffs’ Capital Litigation History
Plaintiffs Grayson, Frazier, Roberts, Myers, and Hunt all have been convicted

of capital murder and sentenced to death. Grayson was convicted of capital murder
for the February 1994 death of Vickie Deblieux committed during a kidnapping in
the first degree.

Grayson v. State, 824 So. 2d 804 (Ala. Crim. App. 1999). In

2

October 1996, Frazier was convicted of capital murder of Pauline Brown. Frazier
v. State, 758 So. 2d 577 (Ala. Crim. App. 1999); Ex parte Frazier, 758 So. 2d 611
(Ala. 1999). In December 1992, Roberts was convicted on two counts of capital
murder for the death of Annetra Jones, for murder committed during the commission
of a robbery and arson. Roberts v. State, 735 So. 2d 1244, 1269 (Ala. Crim. App.
1997). In January 1994, Myers was convicted on two counts of capital murder for
the death of Ludie Mae Tucker because the murder occurred during the commission
of a robbery and burglary. Myers v. State, 699 So. 2d 1281 (Ala. Crim. App. 1996).
In June 1990, Hunt was convicted on a three-count indictment for the capital murder
of Karen Lane, committed during sexual abuse in the first degree and burglary in the
first degree. Hunt v. State, 659 So. 2d 933 (Ala. Crim. App. 1994); Ex Parte Hunt,
659 So. 2d 960 (Ala. 1995).
Plaintiffs’ direct appeals concluded many years ago,1 and their state postconviction and federal habeas proceedings have also been concluded for at least
three years.2

1

Grayson’s direct appeal ended in 2002. Grayson v. Alabama, 537 U.S. 842 (2002).
Frazier’s direct appeal concluded in 2000. Frazier v. Alabama, 531 U.S. 843 (2000). Roberts’s
direct appeal ended in 1999. Roberts v. Alabama, 528 U.S. 939 (1999) (table). Myers’s direct
appeal ended in 1998. Myers v. Alabama, 522 U.S. 1054 (1998). Hunt’s direct appeal ended in
1995. Hunt v. Alabama, 516 U.S. 880 (1995).
2

Grayson v. Thomas, 132 S. Ct. 124 (2011); Frazier v. Thomas, No. 11-10111 (S. Ct. Oct.
1, 2012); Roberts v. Thomas, 133 S. Ct. 949 (2013); Myers v. Thomas, 132 S. Ct. 2771 (2012);
Hunt v. Thomas, 133 S. Ct. 611 (2012).
3

B.

Formation and Chronology of the Midazolam Litigation
From 2002 until 2011, sodium thiopental was the first drug used in the

ADOC’s three-drug, lethal injection protocol. In 2011, the ADOC amended its
protocol by substituting pentobarbital for sodium thiopental as the first drug. At that
time, the ADOC made no amendment to the other two drugs administered,
pancuronium bromide and potassium chloride.
In April 2012, Grayson filed a § 1983 complaint challenging the ADOC’s
substitution of pentobarbital for sodium thiopental, alleging an Eighth Amendment
violation. In October 2013, Frazier filed a similar § 1983 complaint challenging the
ADOC’s substitution of pentobarbital for sodium thiopental, also alleging an Eighth
Amendment violation.
On September 10, 2014, the ADOC amended its execution protocol again, this
time by substituting midazolam for pentobarbital as the first drug used in its threedrug, lethal-injection sequence, and by substituting rocuronium bromide for
pancuronium bromide as the second drug. On September 11, 2014, the State
disclosed the ADOC’s amended protocol in motions the State filed in the Alabama
Supreme Court to set execution dates for several death-row inmates. (Doc. # 160-1,
¶¶ 24–28.)
In October 2014, Plaintiffs Roberts, Myers, and Hunt filed separate § 1983
lawsuits challenging the ADOC’s amended lethal-injection protocol employing
4

midazolam instead of pentobarbital, alleging an Eighth Amendment violation.3
Subsequently, in January 2015, Frazier amended his complaint to challenge the
ADOC’s substitution of midazolam for pentobarbital, and in March 2015, Grayson
followed suit, amending his complaint to challenge the ADOC’s substitution of
midazolam for pentobarbital.
In June 2015, the Supreme Court rendered its decision in Glossip v. Gross,
135 S. Ct. 2726 (2015), and applied the Court’s decision in Baze v. Rees, 553 U. S.
35 (2008), to Oklahoma’s lethal-injection protocol (which is virtually identical to
Alabama’s protocol) and held that the plaintiffs failed to establish a likelihood of
success on the merits of their claim that the use of midazolam violated the Eighth
Amendment. Post-Glossip, the lawsuits filed by Roberts, Myers, and Hunt were
consolidated with the pending lawsuits of Grayson and Frazier to form what the
court has termed the “Midazolam Litigation,” with the Grayson case (12-cv-316),
the first-filed of these five cases, designated as the lead case.

(Doc. # 59.)

Following the close of discovery in the consolidated case, in compliance with the
dispositive motions deadline established in the scheduling order (Doc. # 67),
Defendants moved for summary judgment on Plaintiffs’ Eighth Amendment claims.
(Doc. # 127.)

3

These Plaintiffs did not challenge the ADOC’s amendment of the protocol substituting
pancuronium bromide for rocuronium bromide, the second drug in the sequence.
5

C.

Plaintiffs’ Claims
Plaintiffs’ amended complaints all assert identical Eighth Amendment claims

challenging the ADOC’s current execution protocol, alleging that the ADOC’s use
of midazolam, the first drug to be administered, is unconstitutional.4 Specifically,
Plaintiffs assert that midazolam will not properly anesthetize them so as to prevent
them from feeling an unconstitutional level of pain associated with the injection of
potassium chloride, the third drug. On this premise, Plaintiffs claim that Defendants’
current execution protocol creates a “substantial risk of serious harm,” Baze v. Rees,
553 U.S. 35, 50 (2008) (plurality opinion), and violates their right to be free from
cruel and unusual punishment under the Eighth Amendment to the United States
Constitution. Instead of the use of midazolam in a three-drug lethal injection
protocol, Plaintiffs propose three alternative methods of execution, using either
pentobarbital, sodium thiopental, or a 500-milligram dose of midazolam in a onedrug lethal injection protocol.

4

Grayson also asserts an equal protection claim under the Fourteenth Amendment,
alleging that Defendants do not always perform all three steps of the consciousness assessment in
the execution protocol. Defendants have not challenged this claim with a dispositive motion. The
other four Plaintiffs did not raise a Fourteenth Amendment equal protection claim.
6

II. DISCUSSION 
A.

Defendants’ Motion for Summary Judgment on Plaintiffs’ Eighth
Amendment Claims

Defendants contend they are entitled to summary judgment on Plaintiffs’

Eighth Amendment claims because Plaintiffs cannot establish the second prong of
Baze v. Rees, 553 U.S. 35 (2008), viz., the existence of a known and available
alternative method of execution that is “feasible, readily implemented, and in fact
significantly reduce[s] a substantial risk of severe pain.” Glossip v. Gross, 135 S.
Ct. 2726, 2737 (2015). Defendants assert that the evidence garnered in discovery
unequivocally shows that there is no genuine dispute that two of Plaintiffs’ proposed
alternatives—one-drug protocols using either compounded pentobarbital or sodium
thiopental—are unavailable to the ADOC, and that Plaintiffs’ own evidence
contradicts a 500-milligram dose of midazolam as the sole agent of execution.
Defendants also point out that Plaintiffs have failed to produce evidence of a single
source for either compounded pentobarbital or sodium thiopental that is willing and
able to provide either drug to the ADOC, and that Plaintiffs have also failed to
produce any admissible evidence that a one-drug midazolam protocol would
significantly reduce any alleged risk of severe pain from “[t]he three-drug protocol
approved in Glossip . . . the very same protocol that [Plaintiffs] challenge[] here.”
See Brooks v. Warden, 810 F.3d 812, 818 (11th Cir. 2016).

7

1.

Standard of Review

Summary judgment is proper only when the record evidence, including
depositions, affidavits, and other materials, shows “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986); Fed. R. Civ. P. 56(a), (c). “The
moving party bears the burden of proof,” Allen v. Bd. of Pub. Educ. for Bibb Cty.,
495 F.3d 1306, 1313 (11th Cir. 2007), and the court must “view the evidence and all
factual inferences therefrom in the light most favorable to the non-moving party, and
resolve all reasonable doubts about the facts in favor of the non-movant,” Skop v.
City of Atlanta, 485 F.3d 1130, 1143 (11th Cir. 2007).
2.

Standard for Establishing a § 1983 Method-of-Execution Claim

Summarizing the Baze/Glossip test, to successfully challenge a method of
execution, a prisoner must establish that the method presents a risk that is ‘“sure or
very likely to cause serious illness and needless suffering,’ and give rise to
‘sufficiently imminent dangers.”’ Glossip, 135 S. Ct. at 2737 (emphasis in original).
To prevail, “there must be a ‘substantial risk of serious harm,’ an ‘objectively
intolerable risk of harm’ that prevents prison officials from pleading that they were
‘subjectively blameless for purposes of the Eighth Amendment.’” Id.
Further, a prisoner “cannot successfully challenge a State’s method of
execution merely by showing a slightly or marginally safer alternative.” Baze, 553
8

U. S. at 51. The prisoner “must identify an alternative that is ‘feasible, readily
implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’”
Id. at 52. In short, to survive summary judgment, Plaintiffs must point to admissible
evidence that would, if credited, establish a risk and a known and available
alternative method of execution that significantly reduces that risk.
Plaintiffs have proposed alternative, one-drug protocols using either
compounded pentobarbital, sodium thiopental, or midazolam. The evidence as to
the availability or efficacy of each of these drugs is reviewed below.
a.

Alternative #1 – Pentobarbital/Compounded Pentobarbital

Plaintiffs claim that since January 1, 2014, nearly forty executions have been
performed nationwide “using a single large dose of pentobarbital, making it the most
common method of execution in the United States” (Doc. # 48 at 16), and that several
states, including Colorado, Georgia, Mississippi, Missouri, Ohio, Oklahoma,
Pennsylvania, South Dakota, and Texas “have used or intend to use compounded
pentobarbital for executions.” (Doc. # 48 at 17.)
In recent years, commercially manufactured pentobarbital has become
unavailable to states’ departments of corrections for use in lethal-injection
executions in the United States. In a similar § 1983 method-of-execution case
containing an Eighth Amendment claim virtually identical to Plaintiffs’ Eighth
Amendment claims, this court found that the ADOC’s supply of commercially
9

manufactured pentobarbital, Nembutal®, expired around November 2013. See
Arthur v. Dunn, No. 2:11-cv-0438-WKW (M.D. Ala. Apr. 15, 2016) (Doc. # 359 at
17, ¶ 1). Plaintiffs’ proposed alternative concerns “compounded pentobarbital”
rather than Nembutal®, the commercially manufactured pentobarbital.
Plaintiffs support their claim that compounded pentobarbital is a viable
alternative with the report and testimony from their expert, Deborah L. Elder,
Pharm.D.5 Dr. Elder is a registered pharmacist in the State of Georgia, is certified
in compounding (Doc. # 127-6 at 1), and is a Clinical Associate Professor in the
Pharmaceutical and Biomedical Department in the College of Pharmacy at the
University of Georgia (UGA). She has been on the faculty of UGA’s College of
Pharmacy since 2002. (Elder Dep. 80: 8-10.)
Plaintiffs retained Dr. Elder to opine on the practicality of “the procedure for
compounding pentobarbital using individual ingredients” that would be equivalent
to commercially manufactured pentobarbital. (Elder Dep. 15:13-22.) Plaintiffs did
not ask Dr. Elder to address whether compounded pentobarbital is available to the
ADOC.

(Elder Dep. 16:19-23.)

Dr. Elder’s report describes the regulations

governing the compounding of pentobarbital sodium.6 (Doc. # 127-6 at 2-4.) The

5

As discussed infra, Plaintiffs also rely on Dr. Elder to support their claim that sodium
thiopental is an available alternative.
6

Sodium pentobarbital is the active pharmaceutical ingredient in compounded
pentobarbital. See Arthur v. Dunn, No. 2:11-cv-0438-WKW (M.D. Ala. Apr. 15, 2016) (Doc.
10

report also includes the formula and outlines the procedure for producing
compounded pentobarbital from pentobarbital sodium. (Doc. # 127-6 at 4-5). Dr.
Elder performed internet searches and attached to her report printouts from the
websites of two pharmaceutical companies that listed pentobarbital sodium for sale.
(Doc. # 127-7.) However, Dr. Elder provided no evidence that either of these
companies actually had pentobarbital sodium available for sale on-line that could be
shipped to an unknown compounding pharmacist. In fact, these printouts from the
websites state that there are sales restrictions on the distribution of sodium
pentobarbital7 Id. Dr. Elder sent an e-mail to Sigma-Aldrich to inquire about the
availability of pentobarbital sodium (Doc. # 127-8), but there is no evidence that she
received a response to this e-mail.8
Dr. Elder also made a telephone call to Sigma-Aldrich’s Drug Enforcement
Administration (DEA) schedule department to ask what was required to comply with
the screening process for the purchase of sodium thiopental and pentobarbital
sodium. (Elder Dep. 69:12 – 70:4.) Dr. Elder was advised that the purchase of either

# 359 at 17, ¶ 4).
7

The TOCRIS printout states: “This product is a DEA controlled substance and is not
available for purchase online. Please inquire to place your order.” (Doc. # 127-7.) Similarly, the
Sigma-Aldrich printout states: “Sales restrictions may apply.” Id.
8

When deposed, Dr. Elder stated that she believed Sigma-Aldrich did respond to her
December 28, 2015 e-mail, and that she believed she had provided that response to Plaintiffs’
counsel. (Elder Dep. 65:6-13.) However, if Sigma-Aldrich responded to Dr. Elder’s December
28 e-mail, it is not of record.
11

of these drugs requires a valid DEA license and that pentobarbital sodium also
requires completion of a DEA 222 form. (Elder Dep. 70:9-13.) Dr. Elder was also
informed that generally, Sigma-Aldrich’s products are used for research and
development purposes9 and that the DEA compliance department requires the
completion of a form stating how the product is to be used. (Elder Dep. 70:14 –
71:16.) As of the date of Dr. Elder’s deposition, April 5, 2016, pentobarbital sodium
was backordered, but might be available within thirty days. (Elder Dep. 71:19-21.)
Plaintiffs’ proof that compounded pentobarbital is available to the ADOC falls
short. Plaintiffs’ statements that since January 1, 2014, nearly forty executions have
been performed “using a single large dose of pentobarbital,” and that ten states “have
used or intend to use compounded pentobarbital for executions” (Doc. # 48 at 1617), are inconsequential. “[T]he fact that the drug was available in those states at
some point over the past two years does not, without more, make it likely that it is
available to Alabama now.” Brooks v. Warden, 810 F.3d 812, 819 (11th Cir. 2016).
It is undisputed that in 2015, only four states – Georgia, Missouri, Texas, and
Virginia10 – were able to perform executions using compounded pentobarbital. See

9

The person to whom Dr. Elder spoke opined that Sigma-Aldrich products were to be
used only for research and development purposes, but because this person did not work in the DEA
compliance department, she could not be certain of that statement. (Elder Dep. 70:25 – 71:4.)
10

Virginia was unable to obtain compounded pentobarbital from its traditional suppliers,
and was only able to carry out the execution because the Texas Department of Criminal Justice
supplied Virginia with three vials of pentobarbital. See Prieto v. Clarke, No. 3:15-cv-587-HEH
(E.D. Va. October 1, 2015) (Doc. # 19 therein, Memorandum Opinion at 3).
12

Anne Adams Hill testimony in Arthur v. Dunn, No. 2:11-cv-0438-WKW (M.D. Ala.
Jan. 12, 2016) (Doc. # 348 at 4).
Dr. Elder did not identify any pharmacist or supplier who could provide
compounded pentobarbital to the ADOC.

Neither Dr. Elder’s report nor her

testimony establishes that compounded pentobarbital is available to the ADOC.
Plaintiffs have failed to raise a genuine dispute of material fact that compounded
pentobarbital is a feasible alternative.
Defendants support their summary judgment motion with the testimony of
Anne Adams Hill at the trial in Arthur v. Dunn, No. 2:11-cv-438 (M.D. Ala. Jan. 12,
2016) (Doc. # 348). Defendants rebutted Arthur’s allegation that compounded
pentobarbital was an available alternative with Hill’s testimony. Hill, the ADOC’s
general counsel since March of 2011, testified as the ADOC’s party representative.
She was aware that in 2015, Georgia, Missouri, Texas, and Virginia performed
executions using compounded pentobarbital. (Arthur Trial Tr. vol. 1, 98.) Hill
testified that, in her recent efforts to obtain compounded pentobarbital for the
ADOC’s use in executions, she had contacted the departments of corrections in at
least those four states. (Arthur Trial Tr. vol. 1, Doc. # 349 at 106.)
Elaborating, Hill testified that, as part of her job duties, she is routinely in
contact with other departments of corrections on a variety of issues, including the
subject of lethal injection generally, the availability of compounded pentobarbital,
13

and, in those states that have been able to obtain compounded pentobarbital, their
willingness either to provide it to the ADOC or to provide their source to the ADOC.
(Arthur Trial Tr. vol. 1, Doc. # 349 at 107.) She reiterated that she has had these
similar, ongoing, conversations not just recently, but “for some time.” (Arthur Trial
Tr. vol. 1, Doc. # 349 at 109.)
In her quest to find a source for compounded pentobarbital, Hill has also
contacted all eighteen accredited compounding pharmacies in Alabama, but her
efforts were to no avail. “[N]one of the 18 were able to provide the Department of
Corrections with compounded pentobarbital.” (Arthur Trial Tr. vol. 1, Doc. # 349 at
149.) In all, she has contacted at least twenty-nine potential sources to inquire about
obtaining compounded pentobarbital, and all of those efforts failed. (Arthur Trial
Tr. vol. 1, Doc. # 349 at 158.)
The court credited Hill’s testimony and made the following findings of fact
concerning pentobarbital and compounded pentobarbital:
8. The ADOC has attempted to obtain compounded pentobarbital
for use in executions from departments of corrections in at least
four states, Georgia, Missouri, Texas, and Virginia, but those
efforts were unsuccessful.
9. The ADOC has contacted all of the accredited compounding
pharmacies in Alabama to ascertain whether any of these
pharmacies would be willing and able to provide compounded
pentobarbital to the ADOC, but those efforts have been
unsuccessful.

14

10. Pentobarbital is not feasible and readily implemented as an
execution drug in Alabama, nor is it readily available to the ADOC,
either compounded or commercially.
See Arthur v. Dunn, No. 2:11-cv-438 (M.D. Ala. Apr. 15, 2016) (Doc. # 359 at 1819.)
Plaintiffs’ evidence obtained after Hill’s testimony in the Arthur trial in
January 2016, fails to establish that compounded pentobarbital has since become
available to the ADOC. Dr. Elder’s report and testimony obtained on April 5, 2016,
did not demonstrate that pentobarbital, either compounded or commercially
manufactured, is available to the ADOC. Further, testimony from Plaintiffs’ expert
anesthesiologist, Michael A. Forelich, M.D., M.S., obtained on March 23, 2016, is
consistent with the court’s finding in Arthur concerning the unavailability of
pentobarbital in any form to the ADOC. Dr. Forelich testified that pentobarbital is
unavailable in his clinical practice. (Forelich Dep. 116:20 – 117:8.) The court’s
earlier finding in Arthur that pentobarbital, either compounded or commercially
manufactured, is not readily available to the ADOC is unchanged by the additional
evidence offered in this case.
b.

Alternative #2 – Sodium Thiopental

Although sodium thiopental has not been used in the ADOC’s protocol since
April 2011, Plaintiffs claim that it is an alternative for use in a single-drug protocol.

15

To support this claim, Plaintiffs rely on a May 2015 news article reporting that “the
Nebraska Department of Corrections claims that it can obtain sodium thiopental to
use in its protocol, and do so legally.” (Doc. # 48 at 18.) However, Plaintiffs
acknowledge that sodium thiopental is no longer made by any commercial drug
manufacturer in the United States, but assert that sodium thiopental could be made
by a compounding pharmacist or molecular chemist.

(Doc. # 127-3 at 1-2.)

Plaintiffs also state that there is no blanket prohibition per se on importing sodium
thiopental, “if appropriate laws are followed.” (Doc. # 127-3 at 2.) Plaintiffs
acknowledge that no other State has performed an execution using a one-drug
sodium thiopental protocol. Id.
As with pentobarbital, Plaintiffs rely on Dr. Elder to support their claim that
sodium thiopental is a viable alternative for use in a one-drug protocol. However,
Dr. Elder’s five-page report focuses almost exclusively on sodium pentobarbital and
compounded pentobarbital. Dr. Elder’s attention to sodium thiopental is confined
to the following note at the conclusion of her report:
NOTE: Thiopental is a logical substitute to sodium pentobarbital.
This agent is available through suppliers in the United States (U.S.)
and India. The U.S. supplier lists availability with shipping date
ranges of 2/11/16 to 3/11/16 and costs of $17.00 – 52.00 per 10 mg.
Larger quantities are available by request.
(Doc. # 127-6 at 5.)

16

Dr. Elder testified that, although she had provided printouts from the websites
of suppliers in India and the United States concerning sodium thiopental, she did not
contact these companies directly to inquire about the availability of sodium
thiopental, nor did she inquire about sales restrictions on this product. (Elder Dep.
50:18 – 51:8, 57:9 – 58:22.) She also testified that she was “not aware of any of it
being used right now” in clinical settings. (Elder Dep. 51:9-15.) Similar to
pentobarbital, Dr. Elder testified that, when she called the company whose website
listed sodium thiopental as a product for sale, she was informed that it was limited
to research and development use and that a request to purchase the drug for other
purposes  would likely be denied. (Id. at 70:5 – 71:16.) In any event, Dr. Elder
admitted that one of the internet printouts for sodium thiopental indicated that the
product was discontinued, and that she did not contact the company to determine
how much, if any, of the drug remained in stock. (Id. at 73:21 – 74:15.) Dr. Elder
contradicts her own testimony that sodium thiopental is “available.”
In considering the availability of sodium thiopental to the ADOC, the court
takes judicial notice of a publication by the U.S. Food and Drug Administration
(FDA) known as the FDA Orange Book, which contains a list of all approved drugs
in the United States. At the Arthur trial in January 2016, the court heard testimony
from Arthur’s expert, Gaylen M. Zentner, Ph.D., that sodium thiopental is no longer
listed in the FDA Orange Book, meaning that it is not available legally in the United
17

States. See Arthur v. Dunn, No. 2:11-cv-0438-WKW (M.D. Ala. Apr. 15, 2016)
(Doc. # 359 at 14.) The court found Zentner’s testimony to be credible, id., and
made the following findings of fact concerning sodium thiopental:
11. Per the FDA Orange Book, sodium thiopental is no longer
legally available in the United States.
12. While sodium thiopental may be available from an overseas
supplier and could conceivably be imported into the United States,
such importation requires the approval of the FDA. There was no
evidence at trial that any state’s department of corrections had
obtained the FDA’s approval to import sodium thiopental for use in
performing its executions.
13. Sodium thiopental is unavailable to the ADOC for use in lethal
injections.
See Arthur v. Dunn, No. 2:11-cv-0438-WKW (Apr. 15, 2016) (Doc. # 359 at 19).
Plaintiffs have failed to present any credible evidence that, after sodium
thiopental became illegal to manufacture commercially in the United States, any
state has successfully obtained sodium thiopental for use in an execution. Plaintiffs
point to a May 14, 2015 newspaper article reporting that the Nebraska Department
of Corrections has obtained sodium thiopental to use in its protocol; however, a
newspaper article is inadmissible to prove the truth of the matter asserted. See Hope
For Families & Comm. Service, Inc. v. Warren, 721 F. Supp. 2d 1979, n.114 (M.D.

18

Ala. 2010); United States v. Baker, 432 F.3d 1189, 1211 (11th Cir. 2005).
Moreover, that newspaper article is inconsequential old news.11
Further, given that sodium thiopental can no longer be manufactured legally
in the United States, Plaintiffs have failed to demonstrate that sodium thiopental has
been imported lawfully for use in an execution. Plaintiffs’ proof of the availability
of sodium thiopental is similar to the proof offered in the Arthur trial in January
2016, in that Plaintiffs have only provided evidence that sodium thiopental may be
available from an overseas supplier and could conceivably be imported into the
United States, but only with the FDA’s approval. Plaintiffs have provided no
evidence that any state’s department of corrections has obtained the FDA’s approval
to import sodium thiopental for use in performing its executions.
In short, Plaintiffs’ evidence obtained after the Arthur trial in January 2016,
fails to establish that sodium thiopental has since become available to the ADOC.
Plaintiffs’ expert anesthesiologist, Michael A. Forelich, M.D., M.S., deposed on
March 23, 2016, testified that sodium thiopental is unavailable in his clinical practice
and that he has not used it for “maybe five years.” (Forelich Dep. 117:9-21.) This
evidence is consistent with and confirms the court’s finding in Arthur that sodium
thiopental is not readily available to the ADOC.

11

The court takes judicial notice of the fact that on May 27, 2015, in passing LB 268, the
Nebraska
Legislature
abolished
the
death
penalty
in
Nebraska.
(See
nebraskalegislature.gov/bills/view_bill.php?DocumentID=25136 (last visited October 25, 2016).
19

c.

Alternative #3 – Midazolam

Plaintiffs’ third proposed alternative is a 500-mg dose of midazolam
administered in a single-drug protocol. The basis for this proposal is the finding by
a federal district court in Oklahoma that a 500-mg dose of midazolam alone would
likely cause death in less than an hour.12 (Doc. # 48 at 18.)
Plaintiffs support this alternative with the report and testimony of Randall
Tackett, Ph.D. Dr. Tackett, a pharmacologist and toxicologist, is a professor at the
University of Georgia (UGA) College of Pharmacy in the Department of Clinical
and Administrative Pharmacy. He has been on UGA’s faculty since 1981. (Doc. #
145-5.)

Dr. Tackett’s report concerns the pharmacology of midazolam.

He

concludes his report with the following statement:
If midazolam was to be used as the sole agent for lethal injection, a
loading dose between 2.5 and 3.75 g[rams] could be used followed
by a continuous IV infusion until death. This would be preferable
to repeated boluses of midazolam until death, as the bolus method
would result in spikes and dips in concentration while the
continuous infusion method would provide a continuous increase in
the drug until death. This would be similar to the protocol
mentioned above that is used for terminal sedation but would
involve much higher doses which would result in death. Death due
to midazolam has been attributed to respiratory depression and
cardiac arrest.

12

The finding to which Plaintiffs refer is the trial court’s finding made after a preliminary
injunction hearing in Warner v. Gross, No. 5:14-cv-0665 (D. Okla. Dec. 19, 2014) (Doc. # 173
therein). Warner was a challenge to Oklahoma’s three-drug protocol, which is similar to
Alabama’s protocol. There, the court heard testimony from defendants’ expert, Dr. Roswell Lee
Evans, that a 500-mg dose of midazolam will induce a coma. The trial court credited Dr. Evans’s
testimony and found that a 500-mg dose of midazolam “alone would likely cause death by
respiratory arrest within [thirty] minutes or an hour.” Glossip, 135 S. Ct. at 2736.
20

(Doc. # 145-5 at 3.)
When deposed, Dr. Tackett summarized his opinions concerning midazolam
and the 500-mg dose, as follows:
Q. Dr. Tackett, what are your conclusions in this case based on your
report?
A. Well, based on my report is that I do think that one is midazolam;
its mechanism of action is pretty well known. I would say as far as
my conclusions with this report is that midazolam does have a
variability of response. I think that the recommended dose of 500
milligrams is too low. I do not -- have not seen a good scientific
explanation for how the 500 milligrams was arrived at. If
midazolam is going to be used, I guess my conclusion is if that is
the sole agent for lethal injection, then I would think I would use the
one document which is in the published peer-reviewed literature that
gives an estimate of the LD5013 that I would use that as the dose,
and instead of an injection or multiple injections, I would use a
continuous infusion as I indicated and carry that until death.
(Tackett Dep. 20:7-24 (footnote and emphasis added).)
Dr. Tackett opined that a 500-mg dose of midazolam is too low, presumably
to cause death. He testified that, if midazolam were used in a one-drug protocol, he
would recommend a loading dose of between 2.5 and 3.75 grams, the equivalent of
between 2500 and 3750 milligrams of midazolam, a dose five to eight times larger

13

Explaining the term LD50, Dr. Tackett stated that it is a dose that is determined by giving
different doses to groups of animals, usually rats or mice, to ultimately arrive at a dose that will
kill 50 percent of the selected group of animals: “You give different groups different [dose] ranges
and you can determine – usually 24 hours later you come back and see how many are alive and
then you can calculate what would be the dose at which 50 percent of the animals were killed.
That’s called the LD50.” (Tackett Dep. 80:12-21.)
21

than the 500-milligram dose Plaintiffs have pled as an alternative method of
execution. Dr. Tackett also recommended that this loading dose should be followed
by continuous infusion until death. (Id. at 80:22 – 81:15.) However, Dr. Tackett
makes no recommendation as to the amount of midazolam to be administered in the
continuous infusion stage and the rate of its administration.
The opinion of Plaintiffs’ own expert that a 500-mg dose of midazolam is too
low refutes the feasibility of Plaintiffs’ proposed alternative, and there is no other
scientific evidence of record to support this novel alternative. Dr. Tackett’s report
and opinion fail to support, and in fact undermine, Plaintiffs’ claim that a 500-mg
dose of midazolam in a one-drug protocol would result in significantly less risk of
substantial pain than Alabama’s present protocol, as Glossip requires. Plaintiffs also
have failed to raise a genuine dispute of material fact that a 500-mg dose of
midazolam in a single-drug protocol is a feasible alternative that is readily
implemented.
3.

Summary of the Alternative Method Prong

Post-Baze and Glossip, it is clear that before a prisoner is entitled to relief, he
must also establish a remedy, that is, “the existence of a known and available
alternative method of execution that would entail a significantly less severe risk.”
Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U. S. at 56-60). A challenge to a
method of execution that merely shows “a slightly or marginally safer alternative,”
22

Baze, 553 U. S. at 51, fails to meet the remedy test. Further, “because it is settled
that capital punishment is constitutional, it necessarily follows that there must be a
constitutional means of carrying it out.” Glossip, 135 S. Ct. at 2732–33 (quoting
Baze, 553 U. S. at 47) (alteration omitted)). Moreover, “because some risk of pain
is inherent in any method of execution[,] . . . the Constitution does not require the
avoidance of all risk of pain.” Id. at 2733 (citation omitted).
For the reasons explained above, Plaintiffs have failed to meet their burden of
proof to survive summary judgment. To the extent that Plaintiffs rely on a singledrug protocol using pentobarbital/compounded pentobarbital or sodium thiopental,
based on the evidence presented in Arthur v. Dunn, No. 2:11-cv-0438-WKW (M.D.
Ala. Apr. 15, 2016) (Doc. # 359 at 17, 19), the court has previously found that neither
pentobarbital/compounded pentobarbital nor sodium thiopental was available to the
ADOC. The reports and opinions of Plaintiffs’ experts, Dr. Deborah L. Elder, Dr.
Randall Tackett, and Dr. Michael Forelich, obtained post-Arthur, in no way render
the court’s findings in Arthur inaccurate; in fact, this later-acquired evidence
confirms the correctness of the findings in Arthur. As to Plaintiffs’ proposed
alternative using a 500-mg bolus dose of midazolam, it is eviscerated by the opinion
of their own expert, Dr. Tackett, who opined that a 500-mg dose is too low for a onedrug execution. (Tackett Dep. 20:7-24.)

23

4.

Alternative Method Evidence: Hippocrates and Hypocrites

The collision between the rulings of the United States Supreme Court and
ethical rules for the medical profession provides no grounds for relief to Plaintiffs.
Plaintiffs clearly bear the burden of proving a known and available alternative
method of execution that significantly reduces the risk of substantial pain in
execution (sometimes referred to by inmates as the “suicide burden.”). Grayson v.
Dunn, 156 F. Supp. 3d 1340, 1349 (M.D. Ala. 2015), aff’d sub nom. Brooks v.
Warden, 810 F.3d 812 (11th Cir. 2016), cert. denied sub nom. Brooks v. Dunn, 136
S. Ct. 979 (2016). To the extent that burden encroaches upon the medical realm, it
is not accidental, and injury that accrues to a party accrues to the party with the
burden of proof. In what can only be described as an attack on the death penalty
itself (which is legally impermissible in a last-ditch § 1983 action, see Hill v.
McDonough, 547 U. S. 573 (2006)), death row inmates refuse to cooperate in
making safe the means of their own death. This is a legal and practical judgment
arrived at by weighing one’s own interests in survival. But that tactic is blocked by
Glossip and Baze: “[T]hey argue that they need not identify a known and available
method of execution that presents less risk. But that argument is inconsistent with
the controlling opinion in Baze.” Glossip, 135 S. Ct. at 2738. If an alternative
method involves medical procedures, it is the burden of the inmate to prove them.

24

The Hippocratic Oath is often interjected into the argument to say why
medical personnel cannot opine on alternative methods of execution. But modern
medicine has orphaned Hippocrates and his Oath, in the name of patient selfdetermination and choice, by countenancing medical procedures that the original
Oath prohibited. For instance, the oldest version of the Oath says, “I will not give
to a woman an abortive remedy.” Today, that provision is history, aborted by
modern medical ethicists. Likewise, modern medical ethicists have found pure
magic in unleashing the genies of physician-assisted suicide, medical marijuana,
drug and alcohol use—even abuse—during pregnancy and without personal
responsibility, all in the name of liberty, self-determination, and choice. So much
for the Oath vis-à-vis modern ethics and ethicists.
The modern version of the Oath does contemplate the rare but not extinct
potential of taking life: “If it is given me to save a life, all thanks. But it may also
be within my power to take a life; this awesome responsibility must be faced with
great humbleness and awareness of my own frailty. Above all, I must not play at
God.” Peter Tyson, The Hippocratic Oath Today, http://www.pbs.org/wgbh/nova/
body/hippocratic-oath-today.html (last visited Oct. 31, 2016) (attributing the oath,
revised in 1964, to Louis Lasagna, then-Academic Dean of the School of Medicine
at Tufts University and noting that the revised oath is used in many medical schools
today).
25

Playing at Hippocrates and God in the same breath, the American Medical
Association, which is opposed to human execution by any means (ironic, when the
third leading cause of human death in the United States is medical error, at the rate
of over 250,000 souls a year14 (compared to 35 executions a year on average since
197615)), adopted Rule 9.7.3 which prohibits a physician from taking an “action”
that would “assist, supervise, or contribute to the ability of another individual to
directly cause the death of the condemned,” including rendering technical advice
regarding execution or consulting with or supervising lethal injection personnel.
Rule 9.7.3(b), (i), (n). Death row inmates and their expert medical witnesses could
reflect upon whether “action” prohibited by Rule 9.7.3 would include testifying
hypothetically, or testifying generally on how chemicals act upon the human body
when dosed in specific amounts, or opining that a detailed sequence of specific
amounts of drugs would or would not cause human death, or that, hypothetically, a
specific drug regimen would compassionately ensure no measurable possibility of
feeling pain during execution. Surely, were they so inclined, clever counsel could
devise a way to ethically and legally generate medical evidence of safe alternative

14

Letter from Martin A. Makary, M.D., Professor at Johns Hopkins University and
Hospital, to Dr. Thomas Frieden, Director, U.S. Centers for Disease Control and Prevention, dated
May 1, 2016, http://www.npr.org/sections/health-shots/2016/05/03/476636183/death-certificatesundercount-toll-of-medical-errors (last visited Oct. 31, 2016).
15

Death Penalty Information Center, http://www.deathpenaltyinfo.org/views-executions
(last visited Oct. 31, 2016).
26

execution procedures. Were it not so, it would be the first such evidentiary abyss in
the history of mankind and lawyers. But alas, the abolitionists (as Justice Scalia
called them) continue social, legal and political experimentation at the sole and
ultimate expense—by their own argument—of the condemned.
The medical community stood by passively as sodium thiopental and
pentobarbital were ripped from its medical bag of compassionate pain management
by a tiny cadre of death penalty abolitionists. These valuable tools for alleviating
sensation of pain were rendered unavailable to all patients, not just death row
inmates. Now complaints about midazolam from the same medical community ring
hollow, especially with the galling development of the abolitionists suggesting the
same sodium thiopental and pentobarbital as alternatives, knowing well they are now
unavailable to states for purposes of execution protocols. As Justice Scalia said in
Glossip, it reminds one of the man “sentenced to death for killing his parents, who
pleads for mercy on the ground that he is an orphan.” Glossip, 135 S. Ct. at 2749
(Scalia, J., concurring).
The legal profession is not without sin in this. While physicians take an oath
not to “play at God,” the United States Supreme Court famously embarked upon a
divine journey to discern “the evolving standards of decency that mark the progress
of a maturing society . . .”, Trop v. Dulles, 356 U. S. 86, 101 (1958), “a task for
which we are imminently ill suited.” Glossip, 135 S. Ct. at 2749 (Scalia, J.,
27

concurring). According to Justice Scalia, “[t]hat case has caused more mischief to
our jurisprudence, to our federal system, and to our society than any other that comes
to mind.” Id. And the hollow arguments from a debased medical community in
death penalty cases are both the progeny of, and prompted by, just such standardless
Trop jurisprudence as applied to the death penalty.
The medical profession may choose: it could continue on the side of guerilla
tactics against a clearly constitutional right of the state to execute criminals
convicted of vile human desecration and death; or, it could choose to become part of
a compassionate solution to perceived human suffering by rendering assistance to
inmates facing the final human judgment, with “great humbleness and awareness of
[one’s] own frailty.”
III. CONCLUSION
In the final analysis, Defendants are entitled to summary judgment on
Plaintiffs’ Eighth Amendment claims because Plaintiffs have failed to present
evidence that creates a genuine dispute of material fact as to an alternative method
of execution, an essential prong of the Baze/Glossip test for an Eighth Amendment
method-of-execution claim.

Glossip, 135 S. Ct. at 2739.

Accordingly, it is

ORDERED that:
1.

Defendants’ Motion for Summary Judgment on Plaintiffs’ Eighth

Amendment claims (Doc. # 127) is GRANTED.
28

2.

Judgment is entered in Defendants’ favor on the Eighth Amendment

claims of Plaintiffs Carey Dale Grayson, Demetrius Frazier, David Lee Roberts,
Robin Dion Myers, and Gregory Hunt.
3.

Pursuant to Federal Rule of Civil Procedure 54(b), and the court’s

finding that there is no just reason for delay, a Final Judgment in Defendants’ favor
on all claims asserted by Demetrius Frazier, David Lee Roberts, Robin Dion Myers,
and Gregory Hunt will be entered contemporaneously with this Memorandum
Opinion and Order.
4.

All claims asserted by Plaintiffs Frazier, Roberts, Myers, and Hunt

against Defendants having been resolved, the actions filed by Demetrius Frazier
(2:13-cv-0781-WKW), David Lee Roberts (2:14-cv-1028-WKW), Robin Dion
Myer (2:14-cv-1029-WKW), and Gregory Hunt (2:14-cv-1030-WKW) are
DISMISSED.
5.

There being no just reason for delay, pursuant to Federal Rule of Civil

Procedure 54(b), this is a final and appealable Order as to Plaintiffs Demetrius
Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt.
6.

Grayson’s Fourteenth Amendment claim remains pending.

DONE this 31st day of October, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

29