Wilson v. Dunn et al (DEATH PENALTY)

Filing 33

MEMORANDUM OPINION AND ORDER: it is ORDERED that Dfts' 26 Motion to Dismiss pursuant to FRCP 12(b)(6) is GRANTED IN PART and DENIED IN PART, as follows: 1) Dfts' Motion to Dismiss is DENIED with respect to Wilson's Eighth Amendmen t method-of-execution claim in Count 1 in that (a) Wilson has plausibly pleaded that the ADOC's execution protocol entails a substantial risk of severe pain, and (b) Wilson has plausibly pleaded three alternative methods of execution with either compounded pentobarbital, sodium thiopental, or midazolam in a single-drug execution. Dfts' Motion to Dismiss Wilson's claim in Count 1 is GRANTED with respect to the fourth proposed alternative method of execution by nitrogen asphyxiation ; 2) Dfts' Motion to Dismiss is GRANTED with respect to Wilson's Eighth Amendment consciousness assessment claim (Count 2); 3) Dfts' Motion to Dismiss is DENIED with respect to Wilson's claim in Count 2 that Dfts have no plan to s top an execution in progress; 4) Dfts' Motion to Dismiss is GRANTED with respect to Wilson's First Amendment "right of access" claim for cell phone access (Count 3); 5) Dfts' Motion to Dismiss is GRANTED with respect to Wilso n's Fourteenth Amendment claim regarding the secrecy of the ADOC's execution protocol (Count 4); 6) Dfts' Motion to Dismiss is DENIED with respect to Wilson's Fourteenth Amendment claim that the ADOC's deviation from the exec ution protocol violates his right to equal protection (Count 5); 7) Dfts' Motion to Dismiss with respect to Wilson's state law separation-of-powers claim in Count 6 that Alabama's Legislature has unlawfully delegated its power to the A DOC regarding the execution protocol, in violation of Article III, Section 43 of the Alabama Constitution, is GRANTED, as this claim fails to state a claim for relief under 42 USC 1983. Pursuant to 28 USC 1367(c)(1), the court declines to exercise su pplemental jurisdiction over this state law claim. This claim is DISMISSED WITHOUT PREJUDICE to Wilson's right to pursue this claim in state court. Signed by Chief Judge William Keith Watkins on 11/21/2017. (Attachments: # 1 Civil Appeals Checklist) (alm, )

A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov
Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1.

Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited
by statute:
(a)

Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and
judgments of district courts, or final orders of bankruptcy courts which have been
appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally
are appealable. A final decision is one that “ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc.
v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States,
324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A magistrate judge’s
report and recommendation is not final and appealable until judgment thereon is
entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua
County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28
U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a
final judgment entered by a magistrate judge, but only if the parties consented to
the magistrate’s jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 132728 (11th Cir. 2001).

(b)

In cases involving multiple parties or multiple claims, a judgment as to fewer
than all parties or all claims is not a final, appealable decision unless the district
court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b).
Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which
resolves all issues except matters, such as attorneys’ fees and costs, that are
collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson
& Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988);
LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c)

Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are
permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions; However, interlocutory appeals
from orders denying temporary restraining orders are not permitted.
McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.

(d)

Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The
certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition
for permission to appeal is filed in the Court of Appeals. The district court’s
denial of a motion for certification is not itself appealable.

(e)

Appeals pursuant to judicially created exceptions to the finality rule: Limited
exceptions are discussed in cases including, but not limited to: Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93

L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine
Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel
Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2.

Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional.
Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P.
4(a) and (c) set the following time limits:
(a)
Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements
set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after
the order or judgment appealed from is entered. However, if the United States or
an officer or agency thereof is a party, the notice of appeal must be filed in the
district court within 60 days after such entry. THE NOTICE MUST BE
RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN
THE LAST DAY OF THE APPEAL PERIOD – no additional days are
provided for mailing. Special filing provisions for inmates are discussed below.
(b)

Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other
party may file a notice of appeal within 14 days after the date when the first notice
was filed, or within the time otherwise prescribed by this Rule 4(a), whichever
period ends later.”

(c)

Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court
under the Federal Rules of Civil Procedure of a type specified in this rule, the
time for appeal for all parties runs from the date of entry of the order disposing of
the last such timely filed motion.

(d)

Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the
district court may extend or reopen the time to file a notice of appeal. Under Rule
4(a)(5), the time may be extended if a motion for an extension is filed within 30
days after expiration of the time otherwise provided to file a notice of appeal,
upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time
to file an appeal may be reopened if the district court finds, upon motion, that the
following conditions are satisfied: the moving party did not receive notice of the
entry of the judgment or order within 21 days after entry; the motion is filed
within 180 days after the judgment or order is entered or within 14 days after the
moving party receives notice, whichever is earlier; and no party would be
prejudiced by the reopening.

(e)

Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal
in either a civil case or a criminal case, the notice of appeal is timely if it is
deposited in the institution’s internal mail system on or before the last day for
filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C.
§ 1746 or a notarized statement, either of which must set forth the date of deposit
and state that first-class postage has been prepaid.

Rev.: 3/2011

3.

Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of
Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of
appeal must be signed by the appellant.

4.

Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after
the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or
to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

Rev.: 3/2011