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

Filing 239

MEMORANDUM OPINION AND ORDER: it is ORDERED that: 1. Judgment is entered in Defendants favor on Grayson's Fourteenth Amendment equal protection claim. 2. 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 Plaintiff Carey Dale Grayson will be entered contemporaneously with this Memorandum Opinion and Order. 3. This is a FINAL and APPEALABLE Order as to Plaintiff Carey Dale Grayson. Signed by Chief Judge William Keith Watkins on 2/28/2017. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CAREY DALE GRAYSON,
Plaintiff,
v.
JEFFERSON S. DUNN, et al.,
Defendants.

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CASE NO. 2:12-CV-0316-WKW

and,

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

and,

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

JEFFREY LYNN BORDEN,
Plaintiff,

v.

JEFFERSON S. DUNN, et al.,
Defendants.

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CASE NO. 2:16-CV-0733-WKW

MEMORANDUM OPINION AND ORDER
I. BACKGROUND
Plaintiff Carey Dale Grayson is an Alabama death-row inmate who is in the
custody of the Alabama Department of Corrections (“ADOC”) awaiting his
presently unscheduled execution. In 2012, Grayson filed an action under 42 U.S.C.
§ 1983 challenging the constitutionality of Alabama’s method-of-execution, alleging
violations of both the Eighth and Fourteenth Amendments to the United States
Constitution. (Docs. # 1, 37, 48.) In 2013 and 2014, four other Alabama death-row
inmates 1 filed similar actions under 42 U.S.C. § 1983 challenging the
constitutionality of Alabama’s method-of-execution. Ultimately, their cases were
consolidated as the Midazolam Litigation. (Docs. # 53, 59.)

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Demetrius Frazier, David Lee Roberts, Robin Dion Myers, and Gregory Hunt.

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The Eighth Amendment claims of Plaintiffs Grayson, Frazier, Roberts, Myers,
and Hunt have been resolved. (See Docs. # 192, 193.) In his Second Amended
Complaint (Doc. # 48), Grayson also raised a Fourteenth Amendment equal
protection claim for Defendants’ failure to perform adequate consciousness
assessments in prior executions. (Doc. # 48 at 19–21.) This claim remains pending.
When resolving Grayson’s Eighth Amendment claim (see Doc. # 192), the
court noted that Grayson’s Fourteenth Amendment claim concerning the ADOC’s
consciousness assessment is the same claim that was resolved in Arthur v. Dunn,
2:11-cv-438 (M.D. Ala. Apr. 15, 2016) (Doc. # 359 at 47–55). The court further
noted that no dispositive motion on this claim had been filed in Grayson’s case and
that there is no representation in the record as to the evidence on this claim –
particularly, whether there is new or different evidence, or essentially the same
evidence produced in Arthur. For that reason, on December 9, 2016, the court
directed that Defendants “either file a dispositive motion on the Fourteenth
Amendment claim, inform the Court that a trial is necessary on that claim, or
otherwise address disposition of the claim.” (Doc. # 225 at 2.) Alternatively, the
court gave the parties the option of addressing this issue jointly. Id.
In compliance with December 9 Order, the parties filed a Joint Notice of
Stipulation of Facts and Request for Final Ruling on Grayson’s Fourteenth

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Amendment claim. (Doc. # 226.) This matter is before the court for consideration
of that filing.
II. GRAYSON’S FOURTEENTH AMENDMENT CLAIM
The parties jointly stipulate to the following facts regarding Grayson’s
Fourteenth Amendment equal protection claim:
JOINT STIPULATION OF FACTS
1.
Grayson’s equal protection claim is substantially
similar to the equal protection claim that was litigated and resolved
in Arthur.
2.
The parties do not intend to produce any evidence
relating to Grayson’s equal protection claim that is new or different
from what was presented in Arthur concerning that same claim.
3.
If the case proceeded to trial, the parties intend to
produce the same evidence that was presented in Arthur concerning
Grayson’s equal protection claim. Specifically, at trial, Grayson
would call the following witnesses:
a.
Matt Schultz, an attorney employed by the Federal
Defender’s Office in Montgomery, AL;
b.
Stephen Ganter, an attorney employed by the Federal
Defender’s Office in Montgomery, AL; and
c.
Christine Freeman, an attorney employed by the
Federal Defender’s Office in Montgomery, AL.
Defendants would call the following witnesses:
a.

Anne Adams Hill, the ADOC general counsel;

b.
G.C., an employee of the ADOC and former warden at
Holman Correctional Facility;
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c.

A.P., a former warden at Holman Correctional Facility;

d.

W.H., a retired ADOC employee;

e.

D.C., a retired ADOC employee; and

f.

C.S., an ADOC employee.

4.
The parties further stipulate that if the witnesses noted
in paragraph 3 were called to testify at trial, their testimony would
be the same as the testimony they presented in Arthur concerning
Grayson’s equal protection claim.
Joint Notice of Stipulation of Facts and Request for Final Ruling (Doc. # 226 at 34.)
In light of these stipulated facts, the parties jointly state and request:
Based on the above stipulations of fact, the parties jointly
request that this Court accept the testimony presented in Arthur from
the witnesses noted in paragraph 3, whether by live testimony or by
designated deposition testimony, and consider such testimony in this
case. The parties further request that this court take judicial notice
of the testimony submitted into evidence in Arthur from the
witnesses noted in paragraph 3 and consider such evidence as
admitted in Grayson’s case. Finally, the parties request that upon
this Court’s acceptance of such evidence, Grayson’s pending equal
protection claim be submitted to this Court for a final ruling and
judgment on the merits of the claim.
Id. at 4-5.
III. DISCUSSION
Upon consideration of the parties’ Joint Stipulation of Facts and request for
resolution of Grayson’s Fourteenth Amendment equal protection claim, the court
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concludes that Defendants are entitled to judgment on this claim. The court reached
this conclusion by comparing Grayson’s factual allegations supporting this claim
contained in his Second Amended Complaint with the evidence Thomas Arthur
presented at trial on the same equal protection claim that was tried on January 1213, 2016. See Arthur v. Dunn, 2:11-cv-438 (M.D. Ala. April 15, 2016) (Doc. # 359
at 22-54). This comparison is detailed below:
A.

Grayson’s factual allegations

Grayson asserts a Fourteenth Amendment equal protection claim “because of
inconsistent performance of the consciousness test by untrained individuals.” (Doc.
# 48 at 19.) To support that claim, Grayson alleges:
The executions of Eddie Powell and Jeff Land indicate that
Defendants do not follow their own execution protocol,
particularly in the consciousness assessment.
. . .
47. A witness to Jeff Land’s execution in Alabama in 2010, which
was three years after the graded stimuli were first included in the
protocol, testified that he did not see the correctional officer perform
the third graded stimuli -- the so-called pinch test.
48. Witnesses to the execution in Alabama of Eddie Powell on June
16, 2011, testified that the corrections officer did not perform the
third graded stimuli.
. . .
50. There is no compelling reason for “selectively introducing risk
into some executions but not others.” In failing to ensure that all
executions contain all the graded stimuli contained in the State’s
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expert’s description of the protocol, Defendants selectively
introduce risk into executions.
51. Defendants’ failure to abide by their own purported procedural
safeguards to assess anesthetic depth violates Grayson’s right to
Equal Protection under the United States Constitution.
(Doc. # 48 at 12-13) (footnotes omitted).
Grayson’s allegation that the correctional officer did not perform the pinch
test at Jeff Land’s execution is based on Stephen P. Ganter’s testimony at an
evidentiary hearing on October 18, 2012, in Arthur v. Thomas, 2:12-cv-438 (M.D.
Ala. Oct. 18, 2012) (Hearing Tr. at 304) (Doc. # 48-1). Ganter testified that he did
not see the correctional officer touch or pinch Land’s arm. Id.
Grayson’s allegation that the correctional officer did not perform the pinch
test at Eddie Powell’s execution is based on Matt Schulz’s testimony at this same
evidentiary hearing in Arthur on October 18, 2012. Id. (Hearing Tr. at 259) (Doc. #
48-1). Schulz testified that he did not see anyone pinch Powell’s arm.
B.

Evidence at the Arthur trial of the pinch test on Land and Powell

Arthur’s Second Amended Complaint raised the same Fourteenth
Amendment equal protection claim as Grayson that the Defendants had
inconsistently performed all parts of the consciousness assessment in that they failed
to perform the pinch test at numerous executions, including the Jeff Land and Eddie
Powell executions. See Arthur v. Thomas, 2:11-cv-438-WKW (M. D. Ala. 2011)
(Doc. # 197, ¶ 114 therein).
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At the trial on this claim in January 2016, Arthur’s evidence was eyewitness
testimony from Christine Freeman, Stephen P. Ganter, Matt Schulz, and Don
Blocker that Defendants either failed to perform the pinch test at the Land and
Powell executions, as well as at other executions, or that they did not see the test
performed. Ganter testified that he did not see the correctional officer perform the
pinch test on Land, and Schulz testified that he did not see the correctional officer
perform the pinch test on Powell. The testimony from Ganter and Schulz at Arthur’s
trial in January 2016 was consistent with their testimony concerning the pinch test
on Land and Powell at the evidentiary hearing in Arthur on October 18, 2012.
C. The court’s findings in Arthur regarding the pinch test
The evidence was conflicting concerning Defendants’ performance of the
pinch test at the Land and Powell executions, among others. The court weighed the
evidence and made the following findings on Arthur’s pinch test claim:
4. There is some conflicting testimony as to whether the ADOC has
consistently performed all three components of the consciousness
assessment in all executions after it was implemented. For instance,
Matt Schulz, Stephen Ganter, Christine Freeman, and Don Blocker
testified that they did not observe the pinch test, the third
component, being performed in the executions they have attended.
On the other hand, Hill, G.C., A.P., W.H., D.C. and C.S. testified
that the ADOC has performed all three components of the
consciousness assessment, including the pinch test, in all executions
they have witnessed or participated in after the consciousness
assessment was adopted.
The court credits the testimony of Hill, G.C., A.P., W.H.,
D.C., and C.S. over the testimony of those eyewitnesses who
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testified that they did not see a pinch test performed at the executions
they have attended. The basis for this finding is twofold.
First, Hill, G.C., A.P., W.H., D.C., and C.S. are either present
or former ADOC employees who are knowledgeable about the
components of the consciousness assessment and, with the
exception of C.S., have been trained as to its significance and how
it is performed. C.S. is a participant in the execution chamber. Hill,
in her role as the ADOC’s general counsel, assisted in the
development of the consciousness assessment and in providing
training to prison personnel in how the consciousness assessment
should be conducted. These individuals are aware of the
consciousness assessment and are trained to understand how, why,
and when it is performed. However, they are not trained by medical
professionals or as medical professionals.
Second, the testimony of those eyewitnesses who stated that
they did not see the pinch test performed during the executions they
attended is less probative for a number of reasons. For one, “didn’t
see” testimony is fundamentally less direct and less probative than
“didn’t happen” testimony. With the exception of Blocker, their
testimony was that they “didn’t see” the pinch, or words to that
effect, not that it categorically did not happen. Blocker admitted that
he might have missed the pinch altogether. Ganter admitted the
correctional officer blocked his view of Powell’s arm. Moreover, at
the time Matt Schulz and Christine Freeman attended Eddie
Powell’s execution, and at the time Stephen Ganter and Christine
Freeman attended Michael Jeffrey Land’s execution, they did not
know that there was a consciousness assessment that would be
conducted during those executions. Thus, they also had no
knowledge of the three components of the consciousness
assessment, and they did not know the specifics of the consciousness
assessment as to when or how it would be conducted. Because they
neither knew that a consciousness assessment would be taking place
nor what it was supposed to consist of, they did not know to be on
the lookout for the performance of the pinch test. The court finds
their testimony, albeit truthful from their perspective and to the best
of their recollection and knowledge, less direct and less probative
on the specific factual question.
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As to Don Blocker, for similar reasons the court also assigns
less weight to his testimony than to that of the present and former
ADOC employees. Blocker was a volunteer lay minister at Holman
who had not been trained in the nuances of the consciousness
assessment. He also qualified his answers and admitted that he
could have missed components of the consciousness assessment.
5. Based on the court’s findings that the testimony of Hill,
G.C., A.P., W.H., D.C., and C.S. is more probative and deserves
more weight than the testimony of Matt Schulz, Stephen Ganter,
Christine Freeman, and Don Blocker, the court further finds that the
evidence establishes that the pinch test was performed in all
executions that the ADOC has conducted after the ADOC adopted
the consciousness assessment and incorporated it as a mandatory
part of the written execution protocol. In particular, based upon the
testimony of the captains who have personally conducted the
consciousness assessment and whose credibility was not seriously
challenged, Arthur has not established by a preponderance of the
evidence that all components of the consciousness assessment were
not performed in every execution after the consciousness assessment
was added to the protocol. The contradictory evidence does not
overcome the direct testimony of the participants who say without
equivocation that they performed the assessment.
6. Because the court finds that the consciousness assessment
has been adequately performed in every instance in which it was
required, no deficiency in training, practice, or procedure is found.
Arthur v. Thomas, 2:12-cv-438-WKW (M. D. Ala. April 15, 2016) (Doc. # 359 at
49-52 therein.) (footnote omitted).
On the above findings, the court concluded that Defendants were entitled to
judgment on Arthur’s pinch test claim:
2. The evidence presented on Arthur’s claim was insufficient to
prove that that the ADOC has inconsistently applied the protocol’s
mandatory consciousness assessment by failing to perform the pinch
test during some executions, or has otherwise deviated substantially
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from its execution protocol. The credible testimony of Hill, G.C.,
A.P., W.H., D.C., and C.S. establishes that the pinch test has been
applied uniformly during executions; simply put, Arthur has not
established past disparate treatment or the likelihood of disparate
treatment in his own execution. . . .
Arthur v. Thomas, supra (Doc. # 359 at 52-53 therein.)
D.

Juxtaposition of the Arthur and Grayson equal protection claims
When Arthur’s and Grayson’s claims are compared, they are similar in that

both originated with the same factual allegations in their respective complaints that
the correctional officer did not perform the pinch test at the Powell and Land
executions. In 2012, Arthur’s allegations were deemed sufficient to state a plausible
claim and to avoid summary dismissal. See Arthur v. Thomas, 674 F. 3d 1257, 1263
(11th Cir. 2012). At trial, Arthur’s evidence was from four eyewitnesses, including
Ganter, Schulz, and Freeman, whose trial testimony conformed to their testimony at
the evidentiary hearing in Arthur in October 2012. Their testimony, in addition to
Arthur’s other eyewitness testimony, was insufficient to carry the day for Arthur on
this claim. 2
This same Ganter, Schulz, and Freeman testimony at the evidentiary hearing
in Arthur in October 2012 is the foundation for Grayson’s pinch test claim as

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The court credited the testimony of Hill, G.C., A.P., W.H., D.C., and C.S. over the
testimony of Ganter, Schulz, Freeman, and Blocker who testified that they did not see a pinch test
performed at the executions they have attended. See Arthur v. Thomas, No. 2:12-cv-438-WKW
(M.D. Ala. April 15, 2016) (Doc. # 359 at 49 therein.)

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presented in his Second Amended Complaint. (Doc. # 48 at 12-13.) As the record
stands, the Ganter, Schulz, and Freeman testimony is the only evidence Grayson has
to support this claim. In Arthur, the court found the Ganter and Schulz testimony
less direct and less probative, gave it less weight, and credited testimony from
defense witnesses over that of Ganter and Schulz, as well as Arthur’s other
eyewitnesses, Freeman and Blocker.
Because Grayson has no evidence other than the Ganter, Schulz, and Freeman
testimony to support his pinch test claim, the court’s previous finding in Arthur is
essentially the coup de grace on this claim. Arthur, who offered eyewitness
testimony in addition to that from Ganter, Schulz, and Freeman, did not prevail on
his pinch test claim. Grayson is armed only with the Ganter, Schulz, and Freeman
testimony. Since he has less evidence to offer than Arthur did at trial, Grayson, a
fortiori, cannot prevail on this same pinch test claim.
While Defendants did not move for summary judgment on Grayson’s
Fourteenth Amendment equal protection claim, for the reasons stated above, had
they done so, they would have prevailed because Grayson’s proof is insufficient to
survive a motion for summary judgment. By their Joint Stipulation of Facts, the
parties recognize that if Grayson were to proceed to trial on this Fourteenth
Amendment claim, given the evidence he has to offer, which is less than the evidence
offered in Arthur, he would not prevail. At the parties’ joint request, the court
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accepts the testimony presented in Arthur on his Fourteenth Amendment equal
protection claim, takes judicial notice of that testimony, and considers that evidence
as though it has been admitted in Grayson’s case.
The parties’ joint request for a final ruling on Grayson’s Fourteenth
Amendment claim, based on the record as it stands, is in the interest of judicial
economy, will preserve limited judicial resources, and will minimize litigation
expenses to all parties. The court applauds the parties for recognizing this fact.
IV. CONCLUSION
Upon consideration of the parties’ Joint Notice of Stipulation of Facts and
Request for Final Ruling, it is ORDERED that:
1.

Judgment is entered in Defendants’ favor on Grayson’s Fourteenth

Amendment equal protection claim.
2.

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 Plaintiff Carey Dale Grayson will be entered
contemporaneously with this Memorandum Opinion and Order.

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3.

This is a FINAL and APPEALABLE Order as to Plaintiff Carey Dale

Grayson.
DONE this 28th day of February, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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