Hunt v. Myers, et al. (DEATH PENALTY)(MEMBER)

Filing 41

ORDERED as follows: 1. The stay of this proceeding by order dated March 23, 2015 (Doc. # 30 ) is LIFTED. 2. Hunt shall FILE an amended complaint that complies with Local Rule 15.1, on or before July 28, 2015, to correct the deficiencies outlined abo ve. Failure to do so will result in dismissal of Hunts Eighth Amendment claim. 3. The State's 38 renewed motion to dismiss is DENIED with LEAVE TO REFILE following the filing of Hunts amended complaint. The State shall answer or otherwise respond to Hunts amended complaint no later than two (2) weeks from the date it is filed. Signed by Chief Judge William Keith Watkins on 7/21/2015. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
GREGORY HUNT,
Plaintiff,
v.
WALTER MYERS, et al.,
Defendants.

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CASE NO. 2:14-CV-1030-WKW
(WO – Do Not Publish)

ORDER
This is a § 1983 lethal injection challenge. On March 23, 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. # 30.) 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. # 30.)
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 Hunt’s sole
Eighth Amendment method-of-execution claim based on Glossip. (Doc. # 38.) That
same day, Hunt filed a statement in response to the court’s March 23, 2015 order
asking for leave to amend his complaint if the court determined that it did not
adequately satisfy Glossip’s pleading requirements. (Doc. # 39.) The court has
reviewed Hunt’s complaint and determined that it does not meet Glossip’s pleading
requirements. Although Hunt claims that he plead on page 27 of his complaint that
the Alabama Department of Corrections could use, as an alternative, a single-drug
protocol with pentobarbital (see Doc. # 39, p. 5), these allegations are, at most, a
commentary about the Supreme Court’s decision in Baze v. Rees, 553 U.S. 35
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(2008), and the drug protocols used by other states in 2014. 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 Hunt severe pain during his execution. As a result, the
court will give Hunt leave to amend his complaint to correct this deficiency.
The court will also give Hunt leave to amend his complaint to correct other
deficiencies.

While Hunt’s Fourteenth Amendment due process and equal

protection claims and his First Amendment right-of-access claim have been
dismissed (see Doc. # 24), his complaint, as currently plead, still contains a
substantial number of factual allegations that supported those claims.

These

allegations are superfluous and permitting them to remain in the pleadings would
muddle up what should be an otherwise straightforward single-count complaint.
Finally, the exhibits referenced in Hunt’s complaint were never attached for the
court’s review.
Accordingly, based on the foregoing, it is ORDERED as follows:
1.

The stay of this proceeding by order dated March 23, 2015 (Doc. # 30)

is LIFTED.
2.

Hunt shall FILE an amended complaint that complies with Local Rule

15.1, on or before July 28, 2015, to correct the deficiencies outlined above. Failure
to do so will result in dismissal of Hunt’s Eighth Amendment claim.
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3.

The State’s renewed motion to dismiss (Doc. # 38) is DENIED with

LEAVE TO REFILE following the filing of Hunt’s amended complaint. The State
shall answer or otherwise respond to Hunt’s amended complaint no later than two
(2) weeks from the date it is filed.
DONE the 21st day of July, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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