Taylor v. Dunn et al (DEATH PENALTY)

Filing 23

MEMORANDUM OPINION AND ORDER: it is ORDERED that Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. # 14 ) is GRANTED IN PART and DENIED IN PART, as follows: 1. Defendants Motion to Dismiss is DENIED wit h respect to Taylor's Eighth Amendment method-of-execution claim in Count 1 in that (a) Taylor has plausibly pleaded that the ADOC's execution protocol entails a substantial risk of severe pain, and (b) Taylor has plausibly pleaded three al ternative methods of execution with either compounded pentobarbital, sodium thiopental, or midazolam in a single-drug execution. Defendants' Motion to Dismiss is GRANTED with respect to Taylors fourth proposed alternative method of execution by nitrogen asphyxiation. 2. Defendants' Motion to Dismiss is GRANTED with respect to Taylor's Eighth Amendment consciousness assessment claim (Count 2). 3. Defendants' Motion to Dismiss is GRANTED with respect to Taylors First Amendment "right of access" claim for cell phone access (Count 3). Signed by Chief Judge William Keith Watkins on 11/21/2017. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MICHAEL SHANNON TAYLOR,
Plaintiff,
v.
JEFFERSON S. DUNN, et al.,
Defendants.

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CASE NO. 2:17-cv-046-WKW

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Michael Shannon Taylor is an Alabama death-row inmate in the
custody of the Alabama Department of Corrections (“ADOC”). 1 In January 2017,
Taylor filed a complaint under 42 U.S.C. § 1983, asserting three causes of action
against Defendants for violations of his constitutional rights under the First, Eighth,
and Fourteenth Amendments to the United States Constitution. (Doc. # 1.)
This matter is before the court on Defendants’ Motion to Dismiss, pursuant to
Fed. R. Civ. P. 12(b)(6), for Taylor’s failure to state a claim upon which relief can
be granted. (Doc. # 14.) This motion has been fully briefed and is ripe for review.
Defendants’ motion is due to be granted in part and denied in part.

1

Presently, Taylor has no execution date.

A.

Taylor’s Capital Litigation History
On April 14, 1993, Taylor was convicted of three counts of capital murder for

the November 1991 killings of 83-year-old Ivan Moore and his 79-year-old wife,
Lucille Moore, by repeatedly striking them with a metal bar, fracturing their skulls.
Taylor v. State, 10 So. 3d 1079, 1080 (Ala. Crim. App. 2006). Two of the counts
were made capital because they were committed during the course of a robbery, see
Ala. Code § 13A-5-40(a)(2) (1975), and the third count was made capital because
two or more persons were murdered during one act or course of conduct, see Ala.
Code § 13A-5-40(a)(10) (1975). The jury found Taylor guilty on all counts of capital
murder and unanimously recommended the death sentence. On May 5, 1993, the
trial judge accepted the jury’s recommendation and sentenced Taylor to death.
Taylor, 10 So. 3d at 1080.
Taylor’s convictions were affirmed on appeal, see Taylor v. State, 666 So. 2d
36 (Ala. Crim. App. 1994), as was his sentence, see Taylor v. State, 666 So. 2d 71
(Ala. Crim. App. 1994). The Alabama Supreme Court affirmed his convictions and
sentence. Ex parte Taylor, 666 So. 2d 73 (Ala. 1995), cert. denied, Taylor v.
Alabama, 516 U. S. 1120 (1996).
On March 3, 1997, Taylor filed a Rule 32 petition in state court, challenging
his convictions and sentence.

The circuit court dismissed some claims as

procedurally barred, conducted an evidentiary hearing on the remaining claims, and
2

ultimately denied the Rule 32 petition. The Alabama Court of Criminal Appeals
(ACCA) affirmed. Taylor v. State, 10 So. 3d 1037, 1047 (Ala. Crim. App. 2004).
The Alabama Supreme Court granted certiorari only on the issue of whether a
determination on direct appeal that there was no plain error in the trial proceeding
precludes a capital defendant from raising a claim of ineffective assistance of
counsel in a post-conviction proceeding. The Alabama Supreme Court held that a
determination on direct appeal that no plain error at trial occurred “does not
automatically foreclose a determination of the existence of the prejudice required
under Strickland to sustain a claim of ineffective assistance of counsel.” Ex parte
Taylor, 10 So. 3d 1075, 1078 (Ala. 2005). For that reason, the Alabama Supreme
Court reversed the ACCA’s conclusion and remanded for further proceedings. The
remainder of the ACCA’s decision was affirmed. Id.
On remand, the trial court denied Taylor’s claim that he had received
ineffective assistance of trial counsel. On February 22, 2008, the ACCA affirmed,
without an opinion, see Taylor v. State, 10 So. 3d 1079, 1083, n.*. On December
31, 2008, the Alabama Supreme Court denied certiorari review, without opinion.
Id.
On February 9, 2009, Taylor filed a habeas corpus petition, pursuant to 28
U.S.C. § 2254, in the U. S. District Court for the Northern District of Alabama,
which was denied. Taylor v. Culliver, No. 4:09-cv-00251-KOB, 2012 WL 4479151,
3

at *1 (N.D. Ala. Sept. 26, 2012). The Eleventh Circuit affirmed. Taylor v. Culliver,
638 F. App’x 809 (11th Cir. 2015). On November 28, 2016, the Supreme Court
denied Taylor’s petition for a writ of certiorari. Taylor v. Culliver, 137 S. Ct. 494
(2016).
B.

History of Alabama’s Method of Execution and Execution Protocol
1.

Switch from electrocution to lethal injection

Taylor has been on death row since 1993. At the time Taylor was sentenced,
Alabama executed inmates by electrocution. On July 31, 2002, Alabama adopted
lethal injection as its preferred method of execution and gave inmates then on death
row thirty days thereafter in which to select electrocution as their method of
execution. The failure to timely elect electrocution constituted a waiver to death by
electrocution. Taylor did not opt out of the new protocol; thus, he became subject
to death by lethal injection. See Ala. Code § 15-18-82.1 (2002).
From July 31, 2002, when Alabama switched to lethal injection as its preferred
form of execution, until 2011, sodium thiopental was the first drug used in the
ADOC’s three-drug lethal injection protocol. In 2011, the ADOC amended its
protocol by substituting pentobarbital for sodium thiopental as the first drug. At that
time, the ADOC made no amendment to the other two drugs administered,
pancuronium bromide and potassium chloride.

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On September 10, 2014, the ADOC amended its execution protocol again, this
time by substituting midazolam for pentobarbital as the first drug used in its threedrug lethal-injection sequence, and by substituting rocuronium bromide for
pancuronium bromide as the second drug. On September 11, 2014, the State
disclosed the ADOC’s amended protocol in motions it filed in the Alabama Supreme
Court to set execution dates for several death-row inmates.
2.

Adoption of the consciousness assessment

In October 2007, the ADOC made the consciousness assessment a mandatory
component of its execution protocol. See Arthur v. Thomas, 674 F. 3d 1257, 1263
n.6 (11th Cir. 2012) (“. . . Alabama assesses an inmate’s consciousness through
graded stimuli, first calling the inmate’s name, then stroking the inmate’s eyelids
and finally pinching the inmate’s arm.”); Arthur v. Allen, CV-0722-WS-M, 2007
WL 4105113, at *2 (S.D. Ala. Nov. 15, 2007) (“The modifications to the protocol
consist of the following additions to the preexisting procedures: (1) examination of
the prisoner by an execution team member, following administration of the [first
drug] but before administration of the [second drug], to assess his consciousness (by
calling his name, gently stroking his eyelashes, and pinching his arm).”).

5

C.

Taylor’s Claims
Taylor’s first cause of action is an Eighth Amendment claim challenging the

ADOC’s execution protocol, alleging that the ADOC’s use of midazolam, the first
drug to be administered, is unconstitutional. Specifically, he asserts that midazolam
does not produce the sustained state of anesthesia necessary to render him insensate
to the unconstitutional level of pain associated with the injection of the second and
third drugs. On this premise, he claims that Defendants’ current execution protocol
creates a “substantial risk of serious harm,” Baze v. Rees, 553 U. S. 35, 50 (2008)
(plurality opinion), and violates his right to be free from cruel and unusual
punishment under the Eighth Amendment to the U. S. Constitution. Instead of
midazolam used in a three-drug, lethal injection protocol, Taylor proposes four
alternative methods of execution, three of which are one-drug protocols using either
pentobarbital/compounded pentobarbital, sodium thiopental, or midazolam; the
fourth alternative is an execution by nitrogen asphyxiation.
In his second cause of action, Taylor challenges that part of the ADOC’s
execution protocol known as the consciousness assessment. He claims that this
assessment is inadequate to ensure that he is sufficiently anesthetized prior to being
injected with the remaining two drugs, which creates a substantial risk of
unconstitutional pain, in violation of the Eighth Amendment.

6

Taylor’s third cause of action is a claim that the ADOC’s policy prohibiting
an inmate’s counsel witnessing his execution from having access to a cellular phone
or a land-line telephone during his execution denies him access to the court in
violation of his First, Eighth, and Fourteenth Amendment rights.
II. STANDARD OF REVIEW
Defendants move to dismiss Taylor’s complaint in toto, pursuant to Federal
Rule of Civil Procedure 12(b)(6), for two independent reasons: (1) his complaint is
subject to dismissal at this juncture, without an evidentiary hearing, because it is
clear from the face of the complaint that all three claims are time-barred; and (2) all
three claims fail to state a claim upon which relief can be granted.
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint
against the legal standard set forth in Rule 8: “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U. S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U. S. 544,
570 (2007)). “Determining whether a complaint states a plausible claim for relief
[is] . . . a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 663 (alteration in original) (citation omitted).

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The plausibility standard requires “more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U. S. at 678. Conclusory allegations
that are merely “conceivable” and fail to rise “above the speculative level” are
insufficient to meet the plausibility standard. Twombly, 550 U. S. at 555, 570. This
pleading standard “does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at
678. Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Id.
III. DISCUSSION
A.

Statute of Limitations
It is well settled that, when the complaint shows on its face that the limitations

period has expired, a statute-of-limitations defense may be raised on a motion to
dismiss for failure to state a claim upon which relief can be granted under Federal
Rule of Civil Procedure 12(b)(6). See AVCO Corp. v. Precision Air Parts, Inc., 676
F.2d 494, 495 (11th Cir. 1982) (party may seek dismissal based on statute-oflimitations defense pursuant to Rule 12(b)(6)); Mann v. Adams Realty Co., 556 F.2d
288 (5th Cir. 1977); Mooney v. Tallant, 397 F. Supp. 680 (N.D. Ga. 1975).
“All constitutional claims brought under § 1983 are tort actions, subject to the
statute of limitations governing personal injury actions in the state where the § 1983
action has been brought,” McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008).
8

In Alabama, the statute of limitations applicable to personal injury actions is two
years. Id.
1.

Eighth Amendment Midazolam Claim

Taylor’s complaint is virtually identical to the complaints filed in 2016 by
Charles Lee Burton, Geoffrey Todd West, Torrey Twane McNabb, and Jeffery Lynn
Borden, all of whom raised the same three claims Taylor asserts in his complaint.2
The cases filed by Burton, West, McNabb, and Borden are four cases in a larger
group of consolidated cases the court has collectively styled, “the Midazolam
Litigation.” See Grayson, et al. v. Dunn, No. 2:12-cv-0316-WKW (M.D. Ala. 2012).
All plaintiffs in the Midazolam Litigation are death-row inmates who are
challenging the ADOC’s use of midazolam in the lethal-injection execution protocol
as violating the Eighth Amendment. Not all plaintiffs in the Midazolam Litigation
have raised the same claims; however, except for Taylor’s proposed fourth
alternative method of execution, his complaint presents the same claims presented
in the Burton/West/McNabb/Borden complaints.
In considering Defendants’ motion to dismiss filed in the Burton, West,
McNabb, and Borden cases pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a

2

The only difference between Taylor’s complaint and the Burton/West/McNabb/Borden
complaints is that Taylor proposed a fourth alternative method of execution by nitrogen
asphyxiation, while the other complaints proposed only the three alternatives with a one-drug
protocol using either pentobarbital/compounded pentobarbital, sodium thiopental, or midazolam.
This difference is inconsequential to the underlying claims.

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claim upon which relief can be granted, this court perceived the Eighth Amendment
midazolam claim as a “general challenge” to the ADOC’s three-drug injection
protocol and concluded that it was time-barred and subject to dismissal under Fed.
R. Civ. P. 12(b)(6). See id. (Docs. # 249, 250). The court further concluded that
these plaintiffs’ other two claims also were time-barred and dismissed their
complaints in total. Burton, West, McNabb, and Borden appealed the dismissal of
their complaints.
On appeal, the Eleventh Circuit disagreed that their Eighth Amendment
method-of-execution claim presented a time-barred, general challenge to the threedrug protocol. The Eleventh Circuit held that appellants’ allegations made in
support of their Eighth Amendment claims regarding midazolam “if proven true . . .
would satisfy Baze’s two-prong standard.” West v. Warden, 869 F.3d 1289, 1298
(11th Cir. 2017). 3 Thus, the Eleventh Circuit concluded, “the Complaint states a
claim sufficient to survive a Rule 12(b)(6) motion to dismiss.” Id.

3

Although Burton, West, McNabb, and Borden appealed the dismissal of all three claims,
the Eleventh Circuit considered only the Eighth Amendment midazolam claim, noting: “In this
decision, we address only the District Court’s dismissal of Appellants’ Eighth Amendment
midazolam claim. On remand, the District Court should consider Appellants’ additional claims in
a manner not inconsistent with this opinion.” West, 869 F.3d at 1293 n.8.

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The Eleventh Circuit held that the Burton, West, McNabb, and Borden
complaints (1) do not present a time-barred general challenge to the three-drug
protocol and (2) contain Eighth Amendment method-of-execution claims “sufficient
to survive a Rule 12(b)(6) motion to dismiss.” Id. Taylor’s complaint presents the
same Eighth Amendment method-of-execution claim challenging midazolam raised
in the Burton/West/McNabb/Borden complaints. Accordingly, Defendants’ motion
to dismiss Taylor’s Eighth Amendment method-of-execution claim vis-à-vis the
ADOC’s use of midazolam, pursuant to Rule 12(b)(6), is due to be denied with
respect to Taylor’s proposed alternative methods of execution employing either
compounded pentobarbital, sodium thiopental, or midazolam.
Taylor also proposed a fourth alternative method of execution with pure
nitrogen gas, which he claims would be a quick, painless death. (Doc. # 1 at 21.)
Procedurally, Taylor suggests this execution method could be accomplished by first
administering an anxiolytic, such as midazolam, and then delivering pure nitrogen
gas using a mask, “rendering the inmate unconscious within seconds and painlessly
dead within minutes.” (Id. at ¶ 74.)
Defendants counter that this “alternative” fails as a matter of law, time-barred
or not, and is no true alternative for several reasons. First, nitrogen asphyxiation is
not a known and available alternative that is feasible and can be readily implemented
because currently it is not permitted under Alabama law. Defendants point out that
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Ala. Code § 15-18-82(a) (1975) provides for one method of execution: lethal
injection, with the exception that, under certain conditions not applicable here, an
inmate may elect to be executed by electrocution. Ala. Code § 15-18-82.1(a)–(b)
(1975). Thus, pursuant to current Alabama law, an execution by either lethal
injection or electrocution are the only two possible lawful methods of execution in
Alabama. Defendants note that, if these two execution methods are held to be
unconstitutional by the Alabama Supreme Court or the U. S. Supreme Court, then a
death sentence may be carried out by “any constitutional method of execution.” Id.
§ 15-18-82.1(c).
In short, Defendants argue that, since nitrogen asphyxiation is not an
execution method authorized in the Code of Alabama, this method of execution
would be unlawful unless (1) lethal injection and electrocution were declared
unconstitutional, and (2) the statute was amended to authorize execution by nitrogen
asphyxiation. Therefore, Defendants submit that this method is neither feasible nor
readily implemented. Defendants are correct. The Eleventh Circuit has spoken on
this issue. It has rejected Eighth Amendment method-of-execution claims by
Alabama death-row inmates proposing a firing squad as an alternative to Alabama’s
current method of execution. See Boyd v. Warden, Holman Corr. Facility, 856 F.3d
853, 867 (11th Cir. 2017) (holding that prior precedent compelled it to hold that
“Boyd ha[d] failed to carry his burden of pleading facts sufficient to plausibly
12

suggest that execution by firing squad or hanging is feasible or readily
implementable in Alabama.” (citing Arthur v. Comm'r, Alabama Dep't of Corr., 840
F.3d 1268 (11th Cir. 2016), cert. denied sub nom. Arthur v. Dunn, 137 S. Ct. 725
(2017), reh’g denied, 137 S. Ct. 1838 (2017)). Likewise, Taylor cannot plausibly
plead nitrogen asphyxiation as an alternative method of execution.
Defendants’ Rule 12(b)(6) motion to dismiss Taylor’s Eighth Amendment
method-of-execution claim is due to be granted with respect to Taylor’s proposed
fourth alternative method of execution employing nitrogen asphyxiation.
2.

Eighth Amendment Consciousness Assessment Claim

Taylor also challenges as unconstitutional that portion of the ADOC’s
execution protocol known as the “consciousness assessment.” Specifically, he
claims that during an execution, the ADOC employs a procedure that is performed
by a correctional officer who has no medical training (Doc. # 1, ¶¶ 77–78), and that
this procedure is an inadequate procedure to assess anesthetic depth, all in violation
of the Eighth Amendment. (Doc. # 1, ¶ 85.) Taylor points out “[a]nesthesiologists
receive extensive training in order to assess and monitor a patient’s depth of
anesthesia. Not only must they graduate from college and medical school, they must
follow this with four years of training before they can be certified to practice
anesthesiology without supervision.”

(Doc. # 1, ¶ 79.)

He also states that

anesthesiologists rely on medical “devices that monitor vital signs” in assessing
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anesthetic depth. (Id., ¶ 80.) Taylor requests that Defendants be enjoined from
executing him with a constitutionally deficient consciousness assessment.
The consciousness assessment has been a mandatory component of the
ADOC’s execution protocol since 2007. For purposes of this discussion, it can be
assumed that this addition to the ADOC’s protocol is a “significant change in the
state’s execution protocol.” McNair, 515 F.3d at 1177; but see Arthur v. Ala. Dep’t
of Corrs., 285 F. App’x 707, 705 (11th Cir. 2008) (“[I]t does not appear that
Alabama’s 26 October 2007 minimal changes to its execution protocol materially
changed the procedures that were adopted in 2002.”). The statute of limitations for
a constitutional challenge to the ADOC’s consciousness assessment is two years.
See Ala. Code § 6-2-38 (1975); McNair, 515 F. 3d at 1173. Thus, to be timely,
Taylor had to file any Eighth Amendment claim challenging the consciousness
assessment by October of 2009, but he did not file this lawsuit until January 24,
2017.
Taylor argues that this claim is timely because it is based on facts, which were
not known about the consciousness assessment until it was performed during the
Christopher Brooks and Ronald Bert Smith, Jr., executions in January 2016 and
December 2016, respectively.
Taylor’s allegations concerning the Brooks and Smith executions do not
change the fact that his claim consists of a general complaint concerning the
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adequacy of the consciousness assessment. There is no allegation that the Brooks
and Smith executions involved any change, much less a significant change, in the
ADOC’s execution protocol concerning the consciousness assessment or that its
performance is related to midazolam becoming a part of the lethal-injection protocol
in 2014.

Similar to another general challenge to the ADOC’s consciousness

assessment that was dismissed as being time-barred, “[n]othing prevented [Taylor]
from challenging the training and qualifications of ADOC’s execution personnel”
concerning the consciousness assessment “within Alabama’s two-year statute of
limitations, well before midazolam was introduced into the protocol.” Boyd v.
Myers, 2:14-cv-1017-WKW, 2015 WL 5852948, at *5 (M.D. Ala. Oct. 7, 2015).
Like the claim in Boyd, Taylor’s claim has “[nothing] to do with the State’s switch
from pentobarbital to midazolam, and [Taylor does] not allege anything specific
about midazolam in [this] claim [].” Id.
Consequently, on the face of Taylor’s complaint, his challenge to the
constitutionality of the consciousness assessment is untimely and due to be
dismissed as time-barred.
3.

First, Eighth, and Fourteenth Amendment Access-to-Court Claim

Taylor further claims that the ADOC’s policy prohibiting an inmate’s counsel
who is witnessing his execution from having access to a cellular or a landline phone
during the execution violates his right of access to the court under the First, Eighth,
15

and Fourteenth Amendments. (Doc. # 1, ¶¶ 87–94.)

Taylor contends that

enforcement of this ADOC policy will prevent his counsel from contacting the court
and seeking intervention if something arises during his execution that warrants a stay
or other relief. (Doc. # 1, ¶ 89.) Taylor asserts that the ADOC’s policy prohibiting
visitors from possessing cellular phones or devices within a facility should not apply
to an inmate’s counsel visiting the institution as a designated witness to an execution
and that such policy improperly interferes with the attorney/client relationship.
As relief, Taylor seeks to invalidate the ADOC’s policy prohibiting the
possession of cellular telephones, as applied to designated attorney witnesses, to
protect his right of meaningful access to the court and to be free from cruel and
unusual punishment. Alternatively, Taylor requests an order directing Defendants
to provide a land-line telephone in the viewing room set aside for his witnesses, to
which an attorney witness may have unfettered access during the execution. (Doc.
# 1 at 28.)
It is undisputed that the ADOC’s long-standing policy prohibits visitors to a
correctional facility from possessing cellular telephones or wireless devices within
the correctional facility. This policy applies to all visitors, even those who also
happen to be counsel for a death-row inmate and are at the facility as designated
witnesses to an execution. There is no exception for attorneys in this instance; a

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visitor is a visitor. The ADOC has not recently changed this policy; it has been in
effect for many years.
To reiterate, “[a]ll constitutional claims brought under § 1983 are tort actions,
subject to the statute of limitations governing personal injury actions in the state
where the § 1983 action has been brought,” McNair, 515 F.3d at 1173, and the statute
of limitations in Alabama is two years. Id. It is well settled that, “absent a significant
change in the state’s execution protocol,” Taylor was required to file this claim
within two years “of the date on which state review is complete, or the date on which
the capital litigant becomes subject to a new or substantially changed protocol.” Id.
at 1177.
Taylor argues that this claim is timely because the factual basis originates
from the executions of Christopher Brooks in January 2016 and Ronald Bert Smith,
Jr., in December 2106, where Defendants denied their counsel’s request for
permission to possess a cell phone during the execution or to have access to a
landline telephone at that time. Taylor’s argument is unpersuasive.
The events surrounding the Brooks and Smith executions did not give rise to
this claim; neither do they render this claim timely. Taylor does not allege that the
ADOC has ever allowed visitors to its facilities to have cell phone access or other
phone access during an execution or prior to the adoption of the ADOC’s current
protocol in September 2014. This claim is simply another belatedly raised claim
17

that Taylor could have raised years ago. Therefore, this claim is time-barred on the
face of the complaint and due to be dismissed, similar to the First Amendment claim
in Roberts v. Myers, 2:14-CV-1028-WKW, 2015 WL 1198666, at *2-3 (M.D. Ala.
Mar. 16, 2015) (Doc. # 21).
B.

Failure to State a Claim for Relief Under Fed. R. Civ. P. 12(b)(6)
In addition to asserting that the complaint is time-barred, Defendants also

submit that it should be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6).
1.

Eighth Amendment Midazolam Claim

The Eleventh Circuit has ruled that the Eighth Amendment method-ofexecution claim raised in the Burton/West/McNabb/Borden complaints, a claim
identical to Taylor’s, contained allegations regarding midazolam that, “if proven true
. . . would satisfy Baze’s two-prong standard,” West v. Warden, 869 F.3d at 1298,
and that “the Complaint states a claim sufficient to survive a Rule 12(b)(6) motion
to dismiss,” Id. Thus, Taylor’s identical Eighth Amendment method-of-execution
claim plausibly states a claim and is not subject to dismissal on Defendants’ Rule
12(b)(6) motion.
2.

Eighth Amendment Consciousness Assessment Claim

In Arthur v. Thomas, No. 2:11-cv-438-WKW (M. D. Ala. 2011), plaintiff
Thomas Arthur also challenged the ADOC’s consciousness assessment as being
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constitutionally deficient for the same reasons as Taylor. In Arthur, this court
addressed that claim as follows:
Arthur’s Equal Protection challenge to the general adequacy
of the ADOC’s consciousness assessment, claiming that it should
meet certain training and medical standards but does not, also fails.
The Eighth Amendment does not require that such medical training
and standards or procedures be employed in a consciousness
assessment during an execution, nor is there a constitutional
requirement that a state’s execution protocol include a
consciousness assessment at all. See Baze, 553 U. S. at 58-61. The
consciousness assessment is simply an additional safeguard that is
not required by the Constitution. In Baze, the Court rejected the
condemned inmates’ arguments that Kentucky’s execution protocol
for checking consciousness, which was much less substantial than
the ADOC’s, could not pass Eighth Amendment scrutiny and that
more sophisticated procedures involving medical procedures,
medical equipment, and/or medical personnel, such as
anesthesiologists, were required by the Eighth Amendment. The
Baze Court held that such “sophisticated procedures” are not
required to monitor anesthetic depth and that the administration of a
consciousness assessment much simpler than the one implemented
by the ADOC is not required by the Eighth Amendment. Baze, 553
U. S. at 59-60. (footnote omitted).
Glossip reinforced this tenet, holding, “We recognized this
point in Baze, where we concluded that although the medical
standard of care might require the use of a blood pressure cuff and
an electrocardiogram during surgeries, this does not mean those
procedures are required for an execution to pass Eighth Amendment
scrutiny.” 135 S. Ct. at 2742. Arthur’s attempt to apply a medical
standard of care to execution procedures and training for them, in
this case, procedures that are not required by the Eighth
Amendment, does not state a plausible equal protection claim. This
principle is applicable to Arthur’s Equal Protection claim
challenging the “adequacy” of the consciousness assessment and the
training therefor, including the force used in the pinch test.

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Arthur v. Dunn, No. 2:11-CV-438-WKW, 2016 WL 1551475 *1, *22-23 (M.D. Ala.
Apr. 15, 2016), appeal dismissed (July 12, 2016), aff’d sub nom. Arthur v. Comm’r,
Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir. 2016), cert. denied sub nom. Arthur v.
Dunn, 137 S. Ct. 725 (2017), reh’g denied, 137 S. Ct. 1838 (2017).
Likewise, Taylor’s claim challenging the adequacy of the ADOC’s
consciousness assessment, similar to Arthur’s, fails to state a claim upon which relief
can be granted.
3.

First, Eighth, and Fourteenth Amendment Access-to-Court Claim

This court also has considered and rejected an access-to-court claim similar
to Taylor’s. See Arthur v. Dunn, No. 2:16-CV-866-WKW, 2017 WL 1362861, at
*1 (M.D. Ala. Apr. 12, 2017), aff’d sub nom. Arthur v. Comm’r, Alabama Dep't of
Corr., 680 F. App’x 894 (11th Cir. 2017), cert. denied sub nom. Arthur v. Dunn, 137
S. Ct. 1521 (2017). This claim in Arthur was dismissed on Defendants’ Rule
12(b)(6) for failure to state a claim upon which relief can be granted. Taylor’s
cookie-cutter claim to Arthur’s fares no better; it, too, is insufficient to survive a
Rule 12(b)(6) motion.
IV. CONCLUSION
For the reasons stated, it is ORDERED that Defendants’ Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. # 14) is GRANTED IN
PART and DENIED IN PART, as follows:
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1.

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

Eighth Amendment method-of-execution claim in Count 1 in that (a) Taylor has
plausibly pleaded that the ADOC’s execution protocol entails a substantial risk of
severe pain, and (b) Taylor has plausibly pleaded three alternative methods of
execution with either compounded pentobarbital, sodium thiopental, or midazolam
in a single-drug execution. Defendants’ Motion to Dismiss is GRANTED with
respect to Taylor’s fourth proposed alternative method of execution by nitrogen
asphyxiation.
2.

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

Eighth Amendment consciousness assessment claim (Count 2).
3.

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

First Amendment “right of access” claim for cell phone access (Count 3).
DONE this 21st day of November, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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