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

Filing 47

ORDERED as follows:1. The stay of this proceeding by order dated March 19, 2015 (Doc. # 41 )is LIFTED. 2. Grayson shall FILE an amended complaint that complies with Local Rule 15.1, on or before August 18, 2015, to correct the deficiency outlined ab ove.Failure to do so will result in dismissal of Grayson's Eighth Amendment claim.3. The States renewed motion to dismiss (Doc. # 45 ) is DENIED with LEAVE TO REFILE following the filing of Grayson's amended complaint. The State shall answ er or otherwise respond to Grayson's amended complaint no later than fourteen (14) days from the date it is filed.. Signed by Chief Judge William Keith Watkins on 7/24/2015. (kh, ) Modified on 7/24/2015 (kh, ). Modified on 7/24/2015 to correct the docket text. (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-316-WKW
(WO – Do Not Publish)

ORDER
This is a § 1983 lethal injection challenge. On March 19, 2015, the court
entered an order staying this matter until after the United States Supreme Court
issued a decision in Glossip v. Gross, a § 1983 case that concerned the
constitutionality of Oklahoma’s lethal injection protocol and specifically addressed
the pleading and proof standards for Eighth Amendment lethal injection claims.
(Doc. # 41.) The parties were further ordered to file a statement or appropriate
motion within fourteen days from the entry of the Supreme Court’s decision in
Glossip informing the court of the parties’ “respective positions on the issues in this
case in view of the Glossip decision.” (Doc. # 41.)
The Supreme Court decided Glossip on June 29, 2015. Glossip v. Gross, No.
14-7955, 2015 WL 2473454, at *1 (June 29, 2015). In rejecting the prisoners’
Eighth Amendment method-of-execution claim, the Glossip Court held that the

prisoners had failed “to identify a known and available alternative method of
execution that entails a lesser risk of pain, a requirement of all Eighth Amendment
method-of-execution claims” and that the prisoners had “failed to establish that
Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a
substantial risk of severe pain.” Id. at *3 (emphasis added). In other words, Glossip
clarified,

among

other

things,

that

a

successful

Eighth

Amendment

method-of-execution claim “requires a prisoner to plead and prove 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.” Id. at *10, 12
(emphasis added) (internal quotation marks omitted).
On July 13, 2015, the State filed a renewed motion to dismiss Grayson’s
Eighth Amendment method-of-execution claim based on Glossip, as well as his
Fourteenth Amendment equal protection claim. (Doc. # 45.) That same day,
Grayson filed a statement in response to the court’s March 19, 2015 order asking for
leave to amend his first amended complaint if the court determined that it did not
adequately satisfy Glossip’s pleading requirements. (Doc. # 46.) The court has
reviewed Grayson’s first amended complaint and determined that it does not meet
Glossip’s pleading requirements. Although Grayson claims that he plead on page
13 of his first amended complaint that the Alabama Department of Corrections could
use, as an alternative, a single-drug protocol with pentobarbital (see Doc. # 46, p. 5),
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these allegations are, at most, a commentary about the Supreme Court’s decision in
Baze v. Rees, 553 U.S. 35 (2008), and the drug protocols used by other states in 2014
and at least one state in 2015. They do not sufficiently plead an alternative method
of execution that is feasible and readily available to the Alabama Department of
Corrections and that will also significantly reduce a substantial risk of causing
Grayson severe pain during his execution. As a result, the court will give Grayson
leave to amend his complaint to correct this deficiency.
Accordingly, based on the foregoing, it is ORDERED as follows:
1.

The stay of this proceeding by order dated March 19, 2015 (Doc. # 41)

is LIFTED.
2.

Grayson shall FILE an amended complaint that complies with Local

Rule 15.1, on or before August 18, 2015, to correct the deficiency outlined above.
Failure to do so will result in dismissal of Grayson’s Eighth Amendment claim.
3.

The State’s renewed motion to dismiss (Doc. # 45) is DENIED with

LEAVE TO REFILE following the filing of Grayson’s amended complaint. The
State shall answer or otherwise respond to Grayson’s amended complaint no later
than fourteen (14) days from the date it is filed.
DONE the 24th day of July, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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