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

Filing 425

MEMORANDUM OPINION AND ORDER: 1. Defendants Motion to Reconsider the Denial of Defendants Motion to Dismiss Michael Shannon Taylor's Time-Barred Eighth Amendment Method-of-Execution Claim (Doc. # 350 ) is GRANTED. 2. The portion of the Order denying Defendants Motion to Dismiss with respect to the Eighth Amendment method-of-execution claim in Count 1 of Taylor's original complaint (see Taylor v. Dunn, 2:17-CV-46-WKW (Doc. # 23, at 21, 1)), is VACATED. The Order otherwise remains i n effect. 3. Defendants' Motion to Dismiss is GRANTED with respect to Taylor's Eighth Amendment method-of-execution claim in Count 1 of his complaint (see Taylor v. Dunn, 2:17-CV-46-WKW (Doc. # 1)), and this claim is DISMISSED WITH PREJUDIC E.4. All claims having been resolved with respect to Plaintiff Michael Shannon Taylor in favor of Defendants, the Clerk of the Court is DIRECTED to close Taylor v. Dunn, No. 2:17-CV-46-WKW (M.D. Ala. Jan. 24, 2017), and to make a notation in the cour ts electronic record that Plaintiff Michael Shannon has been terminated as a Plaintiff in this consolidated action. 5. A final judgment as to Plaintiff Michael Shannon Taylor's action will be entered separately. Signed by Chief Judge William Keith Watkins on 6/15/2018. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
In re: Alabama Lethal Injection
Protocol Litigation [Michael
Shannon Taylor, 2:17-CV-46]

)
)
)
)

CASE NO. 2:12-CV-0316-WKW
[WO]

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Before the court is a Motion to Reconsider the Denial of Defendants’ Motion
to Dismiss Michael Shannon Taylor’s Time-Barred Eighth Amendment Method-ofExecution Claim (Doc. # 350), filed by Jefferson Dunn in his official capacity as the
Commissioner of the Alabama Department of Corrections and by Cynthia Stewart
in her official capacity as the Warden of Holman Correctional Facility. Plaintiff
Michael Shannon Taylor filed a Response (Doc. # 388), in which he opposes
Defendants’ motion. Based upon careful review, the motion for reconsideration is
due to be granted, and Taylor’s Eighth Amendment method-of-execution claim is
due to be dismissed on statute-of-limitations grounds.
II. STANDARD OF REVIEW
A district court has broad discretion to reconsider an interlocutory order. See
Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000); see also
United States v. Acosta, 669 F.2d 292, 293 (5th Cir. Unit B 1982) (“[T]he district

court has broad power to reconsider the correctness of its interlocutory rulings.”).1
It may reconsider an interlocutory ruling “for any reason it deems sufficient.”
Canaday v. Household Retail Servs., Inc., 119 F. Supp. 2d 1258, 1260 (M.D. Ala.
2000), aff’d sub nom. Perry v. Household Retail, 268 F.3d 1067 (11th Cir. 2001).
III. DISCUSSION
A two-year statute of limitations governs 42 U.S.C. § 1983 actions brought in
an Alabama court. McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). Mr.
Taylor’s § 1983 Eighth Amendment method-of-execution claim, which he alleged
in his original complaint, is barred by the two-year statute of limitations.2 In its prior
Order, the court erred in permitting this claim to survive Defendants’ motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Taylor,
Doc. # 23.)
In their motion to dismiss, Defendants argued that Taylor’s method-ofexecution claim was time-barred for two reasons. (Taylor, Doc. # 14.) Defendants’
second reason demonstrates why Mr. Taylor’s claim is untimely, but a brief
discussion of the first reason is helpful for context.

1

Decisions of Unit B of the former Fifth Circuit are binding precedent in this circuit. Stein
v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
The complaint was filed in Taylor’s original action, Taylor v. Dunn, 2:17-CV-046-WKW
(M.D. Ala. Jan. 24, 2017), prior to Taylor’s complaint being consolidated in the Alabama Lethal
Injection Protocol Litigation. References to “(Taylor, Doc. # __)” are to the document numbers
in Taylor’s original action.
2
2

First, Defendants contended that Taylor’s claim was “a general challenge to
Alabama’s use of a three-drug protocol” for lethal injection and should have been
brought within two years of Alabama’s adoption in July 2002 of lethal injection in
place of electrocution. (Taylor, Doc. # 14, at 7.) In its prior Order, the court
appropriately rejected this first argument based upon the Eleventh Circuit’s holding
in West v. Warden, Commissioner, Alabama DOC, 869 F.3d 1289 (11th Cir. 2017).
West was an appeal of this court’s judgment dismissing on statute-oflimitations grounds Eighth Amendment method-of-execution claims brought by
Jeffery Lynn Borden, Charles Lee Burton, and Geoffrey Todd West, all of whom are
Plaintiffs in this consolidated action.3 Reversing the judgment, the Eleventh Circuit
concluded that the plaintiffs’ complaint “challenge[d] the State’s substitution of
midazolam for pentobarbital as the first drug in its three-drug protocol,” id. at 1300,
and not the State’s “three-drug protocol generally,” id. at 1298, as this court had
found. In other words, in West, the “challenge at issue was a specific challenge to
the ADOC’s use of midazolam in its execution protocol.” Id. at 1300. And, thus,
the claim accrued on September 10, 2014, which was the date Alabama substituted
midazolam for pentobarbital in its execution protocol. See id. at 1298. Because the
plaintiffs in West brought their claims within two years of September 10, 2014, their
claims were timely. See id. Applying the holding in West, this court found that

3

It has been reported that Jeffery Lynn Borden died earlier this month, but no party has yet
filed a suggestion of death or requested that Borden’s action be dismissed.
3

Taylor, like the Plaintiffs in West, brought an Eighth Amendment method-ofexecution claim that specifically challenged the substitution of midazolam for
pentobarbital in Alabama’s lethal-injection protocol. (Doc. # 23, at 11, 21.) While
this meant that Taylor’s claim accrued on September 10, 2014, the court’s prior
Order stopped short of determining whether the filing date of Taylor’s original
complaint occurred prior to the running of the two-year statute of limitations. It did
not, as Defendants pointed out in their second argument.
For their second argument, Defendants contended that, even if Taylor’s claim
were a specific challenge to the substitution of midazolam for pentobarbital in
Alabama’s lethal-injection protocol, his claim would still be time-barred. They are
correct. Alabama switched to midazolam as the first drug in its lethal-injection
protocol on September 10, 2014, but Taylor did not file his complaint raising his
specific challenge to midazolam until January 24, 2017. (Doc. # 14, at 8–9.)
Because Taylor did not bring his Eighth Amendment method-of-execution claim
within the permitted two-year window, it is barred by the statute of limitations. It is
the timing of Taylor’s Eighth Amendment method-of-execution claim that
distinguishes his case from West. The West plaintiffs filed their claims within two
years of the ADOC’s switch to midazolam on September 10, 2014; Taylor did not.
Taylor’s contention that his action is timely because he filed it within two
years of the December 2016 execution of Ronald Bert Smith does not revive his
untimely claim. (Doc. # 388, at 2.) Describing Smith’s execution as “torturous,”
4

Taylor argues that this was the first execution using midazolam that would have
alerted a “‘typical lay person’” to protect his rights. (Doc. # 388, at 2 (quoting West
v. Ray, 401 F. App’x 72, 76 (6th Cir. 2010).) He contends that, because he is relying
on the “facts” of Smith’s execution to support his Eighth Amendment claim, his
complaint is timely. (Doc. # 388, at 2.) Taylor has not shown that his novel theory
has any support in the binding precedent of this circuit. Indeed, a like theory was
rejected by the majority in the unpublished West decision upon which Taylor relies.
See West, 401 F. App’x at 76 n.1 (rejecting the dissent’s theory that an autopsy of a
condemned inmate revealed new evidence of suffocation that reset the accrual date
for the statute of limitations because the dissent’s “approach look[ed] to the strength
of the evidence in support of a claim, and not when direct review concluded or the
[lethal-injection] method was established — thereby forming the claim” (alterations
added)). Thus, Defendants’ motion to reconsider is due to be granted, and Taylor’s
action is due to be dismissed as it was filed beyond the two-year statute of limitation
applicable to § 1983 claims.
IV. CONCLUSION
Accordingly, it is ORDERED that:
1.

Defendants’ Motion to Reconsider the Denial of Defendants’ Motion

to Dismiss Michael Shannon Taylor’s Time-Barred Eighth Amendment Method-ofExecution Claim (Doc. # 350) is GRANTED.

5

2.

The portion of the Order denying Defendants’ Motion to Dismiss with

respect to the Eighth Amendment method-of-execution claim in Count 1 of Taylor’s
original complaint (see Taylor v. Dunn, 2:17-CV-46-WKW (Doc. # 23, at 21, ¶ 1)),
is VACATED. The Order otherwise remains in effect.
3.

Defendants’ Motion to Dismiss is GRANTED with respect to Taylor’s

Eighth Amendment method-of-execution claim in Count 1 of his complaint (see
Taylor v. Dunn, 2:17-CV-46-WKW (Doc. # 1)), and this claim is DISMISSED
WITH PREJUDICE.
4.

All claims having been resolved with respect to Plaintiff Michael

Shannon Taylor in favor of Defendants, the Clerk of the Court is DIRECTED to
close Taylor v. Dunn, No. 2:17-CV-46-WKW (M.D. Ala. Jan. 24, 2017), and to
make a notation in the court’s electronic record that Plaintiff Michael Shannon has
been terminated as a Plaintiff in this consolidated action.
5.

A final judgment as to Plaintiff Michael Shannon Taylor’s action will

be entered separately.
DONE this 15th day of June, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

6