Saunders v. Dunn et al (DEATH PENALTY)
Filing
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MEMORANDUM OPINION AND ORDER: it is ORDERED that the Individual Dfts' 17 motion to dismiss is GRANTED and that Mr. Saunders's claims against the Individual Dfts are DISMISSED with prejudice. Signed by Honorable Judge William Keith Watkins on 9/29/2021. (bes, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TIMOTHY W. SAUNDERS,
Plaintiff,
v.
JEFFERSON S. DUNN, et al.,
Defendants.
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CASE NO. 2:20-CV-456-WKW
[WO]
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Timothy W. Saunders (“Saunders”) is an Alabama death row inmate
in the custody of the Alabama Department of Corrections (“ADOC”). Mr. Saunders
presently has no scheduled execution date. He has sued the Commissioner of
ADOC, the Warden of Holman Correctional Facility, the Attorney General of the
State of Alabama in their official capacities, and the ADOC (“State Defendants”),
as well as attorneys Michael L. Edwards and John G. Smith. Mr. Edwards and Mr.
Smith represented Mr. Saunders pro bono in post-conviction litigation in state and
federal courts (the “Individual Defendants”) from July 27, 2009, to March 12, 2020.
The State Defendants and the Individual Defendants, in separately filed
submissions, have moved to dismiss the Complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
This Order addresses only the Individual
Defendants’ motion to dismiss. (Doc. # 17.) Mr. Saunders brings claims against the
Individual Defendants pursuant to 42 U.S.C. § 1983, alleging violations of his rights
under the First, Eighth, and Fourteenth Amendments to the United States
Constitution. For the reasons to follow, the motion is due to be granted because Mr.
Saunders has not alleged facts plausibly demonstrating that the Individual
Defendants acted under color of state law.
II. JURISDICTION AND VENUE
Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal
jurisdiction and venue are uncontested.
III. STANDARD OF REVIEW
When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must
take the facts alleged in the complaint as true and construe them in the light most
favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22 (11th
Cir. 2012). To survive Rule 12(b)(6) scrutiny, “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)). “[F]acial plausibility” exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The
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well-pleaded factual allegations in the complaint, but not its legal conclusions, are
presumed true. Id. (citation omitted).
IV. BACKGROUND
Lethal injection is the default method of execution in the State of Alabama.
Ala. Code § 15-18-82.1(a). In March 2018, Alabama Governor Kay Ivey signed
into law Senate Bill 272, which added nitrogen hypoxia as an alternative method of
execution in Alabama.1 (Doc. # 1, ¶ 66); Ala. Code § 15-18-82.1(b)(2). The bill
became effective on June 1, 2018. (Doc. # 1, ¶ 70.)
Section 15-18-82.1(b)(2) permits a death row inmate one opportunity to elect
execution by nitrogen hypoxia. The timing and procedure an inmate must follow to
elect nitrogen hypoxia are set out in § 15-18-82(b)(2), which states:
The election for death by nitrogen hypoxia is waived unless it is
personally made by the person in writing and delivered to the warden
of the correctional facility within 30 days after the certificate of
judgment pursuant to a decision by the Alabama Supreme Court
affirming the sentence of death. If a certificate of judgment is issued
before June 1, 2018, the election must be made and delivered to the
warden within 30 days of that date. If a warrant of execution is pending
on June 1, 2018, or if a warrant is issued within 30 days of that date,
the person who is the subject of the warrant shall waive election of
nitrogen hypoxia as the method of execution unless a written election
signed by the person is submitted to the warden of the correctional
facility not later than 48 hours after June 1, 2018, or after the warrant is
issued, whichever is later.
1
Electrocution is also an alternative method of execution in Alabama, but is not at issue
in this case.
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Mr. Saunders’s certificate of judgment was issued prior to June 1, 2018. Thus,
from June 1, 2018, to June 30, 2018, Mr. Saunders had the opportunity to elect an
execution by nitrogen hypoxia. Mr. Saunders did not make that election during this
allotted time period. (Doc. # 1, ¶ 71.) Therefore, under § 15-18-82(b)(2), he waived
the election for death by nitrogen hypoxia.
Mr. Saunders faults his attorneys, Mr. Edwards and Mr. Smith, for his failure
to make a timely election under § 15-18-82(b)(2). He contends that, for at least six
years, and importantly during the thirty-day election period, the Individual
Defendants “labor[ed] under an irreconcilable conflict of interest” while
representing him in state post-conviction and federal habeas proceedings. (Doc. # 1,
¶ 16; see also Doc. # 1, ¶¶ 11, 12, 19.) According to Mr. Saunders, this conflict of
interest arose when the Alabama Attorney General appointed Mr. Edwards and Mr.
Smith as Deputy Attorneys General to represent ADOC, the Warden, and the
Commissioner in pending federal litigation. (Doc. # 1, ¶¶ 11, 12, 23, 25, 33–34, 38,
47.) In particular, Mr. Edwards and Mr. Smith represented ADOC defendants in a
§ 1983 class-action lawsuit—Braggs v. Dunn, 2:14-CV-601-MHT (M.D. Ala. June
17, 2014)—filed by ADOC inmates for alleged constitutional violations pertaining
to the custodial provision of medical care and mental health treatment.2 (See Doc.
2
The Complaint alleges that Mr. Edwards was appointed a Deputy Attorney General on
July 2, 2014. (Doc. # 1, ¶ 23.) The Complaint does not allege that date of Mr. Smith’s
appointment, but the allegations establish that Mr. Smith actively was representing the ADOC
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# 1, ¶¶ 33–34, 38.) Mr. Saunders alleges that he is a member of the class certified
in Braggs v. Dunn.3 (Doc. # 1, ¶ 36)
Mr. Saunders contends that, to his constitutional detriment, the Individuals
Defendants did not “consult or advise” him—either before, during, or after the thirtyday election period—about the enactment of § 15-18-82.1(b)(2), about “the
ramifications of not electing nitrogen hypoxia as the method of execution, or even
[about] nitrogen hypoxia generally.” (Doc. # 1, ¶ 86.) He alleges that they would
not even respond to his written and telephonic inquiries about the nitrogen hypoxia
election. (Doc. # 1, ¶ 87.)
Mr. Saunders brings three § 1983 causes of action against the Individual
Defendants. He alleges that the Individual Defendants “deprived [him] of his
statutory right to conflict-free counsel during his federal habeas proceedings” in
violation of “his constitutional right to Due Process and Equal Protection in the onetime statutory election of nitrogen hypoxia as his method of execution.” (Doc. # 1,
¶ 107.) Mr. Saunders also alleges that the Individual Defendants violated his
defendants in Braggs v. Dunn in 2016. (Doc. # 1, ¶¶ 33–34, 38; see also Doc. # 1, ¶ 47 (alleging
that Mr. Smith was appointed a Deputy Attorney General on November 7, 2018, to represent
ADOC defendants in a second lawsuit).)
3
Mr. Saunders admits that he signed a waiver on August 23, 2016, advising him of the
Individual Defendants’ “potential conflict of interest” arising from their representation of the
ADOC in Braggs v. Dunn. However, Mr. Saunders alleges that he did not knowingly execute the
waiver. (Doc. # 1, ¶¶ 35, 36.) The Complaint alleges that Mr. Edwards and Mr. Smith ceased
representing Mr. Saunders in federal court in his 28 U.S.C. § 2254 proceedings on March 12, 2020.
(Doc. # 1, ¶ 19; see also Doc. # 17-1.)
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constitutional right of access to the courts. As to this claim, Mr. Saunders contends
that the Individual Defendants deprived him of the “tools” he needed to make an
informed decision during the hypoxia election period, which included “statutorily
qualified conflict-free counsel,” thus causing him to miss the election deadline.
(Doc. # 1, ¶ 124.)
V. DISCUSSION
The Individual Defendants urge dismissal of Mr. Saunders’s claims against
them on several grounds. One ground is dispositive: The Complaint fails to allege
that Mr. Edwards and Mr. Smith acted under color of state law during their
representation of Mr. Saunders. Hence, they are not subject to suit under § 1983.
Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .
To state a claim for relief under § 1983, a plaintiff must allege that the
defendant committed the alleged deprivation “under color of state law.” Focus on
the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003)
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)). Section
1983 does not generally provide for suit arising from actions taken by private
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individuals. “Like the state-action requirement of the Fourteenth Amendment, the
under-color-of-state-law element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” Id. (quoting Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)).
The Supreme Court’s decision in Polk County v. Dodson, 454 U.S. 312
(1981), shows why the Complaint fails to state this essential element of a § 1983
claim against the Individual Defendants. In Polk, Russell Richard Dodson appealed
his criminal conviction for robbery to the Iowa Supreme Court. Martha Shepard, a
full-time public defender, was appointed to represent Mr. Dodson for the appeal.
After a review of the record, however, she concluded that the appeal was frivolous.
The Iowa Supreme Court concurred, granted her motion to withdraw, and dismissed
the appeal. Id. at 314. Disgruntled with the dismissal of his appeal, Mr. Dodson
sued Ms. Shepard under § 1983, alleging that her withdrawal had deprived him of
his right to counsel, denied him due process, and subjected him to cruel and unusual
punishment. See id. at 315. He argued that Ms. Shepard acted under color of state
law for the purpose of § 1983 because her employer was the county. The district
court disagreed and entered judgment for Ms. Shepard; the court of appeals reversed;
and the Supreme Court of the United States granted certiorari. See id. at 315–17.
The Supreme Court held that “a public defender does not act under color of
state law when performing a lawyer’s traditional functions as counsel to a defendant
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in a criminal proceeding.” Id. at 325. The lawyer-client relationship between a
public defender and an indigent client is “identical to that existing between any other
lawyer and client,” id. at 318; it bears the hallmark of “professional independence,”
id. at 321, which must remain “free of state control,” id. at 322. A defense lawyer—
whether retained or appointed—does not “act[] on behalf of the State or in concert
with it” when performing his professional obligations to his client, id. at 318
(alteration added). To the contrary, “he is the State’s adversary.” Id. at 323 n.13;
see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982) (observing that in
Polk, “[w]e concluded . . . that a public defender, although a state employee, in the
day-to-day defense of his client, acts under canons of professional ethics in a role
adversarial to the State,” and thus, a public defender’s representation “would not
support a § 1983 suit” (citing Polk, 454 U.S. at 320)).
Mr. Saunders’s habeas proceedings, as an offshoot of his underlying criminal
conviction, parallel the proceedings in Polk. However, it is the distinctions between
the representation of Mr. Dodson and Mr. Saunders in those proceedings that drives
home why Mr. Edwards’s and Mr. Smith’s representation of Mr. Saunders was not
undertaken under color of state law. As alleged, Mr. Edwards and Mr. Smith were
not paid by the State to represent Mr. Saunders; they were private attorneys working
pro bono on behalf of Mr. Saunders and “received no remuneration.” (Doc. # 1,
¶¶ 11, 12, 31.) There are no allegations that the State dictated how Mr. Edwards and
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Mr. Smith were to perform their professional duties in representing Mr. Saunders
during his post-conviction proceedings. Cf. Polk, 454 U.S. at 322 (“At least in the
absence of pleading and proof to the contrary, we therefore cannot assume that Polk
County, having employed public defenders to satisfy the State’s obligations under
Gideon v. Wainwright, has attempted to control their action in a manner inconsistent
with the principles on which Gideon rests.” (citing Gideon v. Wainwright, 372 U.S.
335 (1963))). Nor are there any allegations that Mr. Edwards and Mr. Smith would
have been acting on behalf of the State had they advised Mr. Saunders with regard
to the state statutory revision adding nitrogen hypoxia as a method of execution.
Even if it is assumed that Mr. Edwards and Mr. Smith had a professional obligation
to advise Mr. Saunders on the particulars of the election in § 15-18-82.1(b)(2),4 Polk
makes clear that this obligation would not convert Mr. Edwards and Mr. Smith into
state actors. Cf. id. at 322 n.12 (“Our factual inquiry into the professional obligations
and functions of a public defender persuades us that Shepard was not a ‘joint
participant’ with the State and that, when representing respondent, she was not acting
under color of state law.”).
4
The Individual Defendants argue that the scope of their representation of Mr. Saunders in
his post-conviction proceedings did not encompass a duty to advise Mr. Saunders on Alabama’s
statutory revision adding nitrogen hypoxia as a method of execution. This opinion does not express
any view on the Individual Defendants’ position.
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Mr. Saunders’s brief omits mention of the Polk decision.
Presumably
recognizing Polk’s blockade, Mr. Saunders attempts to divert the focus to the alleged
conflict of interest created when the State deputized Mr. Edwards and Mr. Smith to
represent the Commissioner and ADOC in other lawsuits. Mr. Saunders argues that,
as a result of their deputized status, Mr. Edwards and Mr. Smith “had strong ties to
the State.” (Doc. # 18, at 8.) Relying on Focus on the Family v. Pinellas Suncoast
Transit Authority, 344 F.3d 1263 (11th Cir. 2003), Mr. Saunders contends that,
because of those strong ties, the joint-action test applies to convert the Individual
Defendants’ action (or lack thereof) into state action for purposes of § 1983’s colorof-law requirement. (Doc. # 18, at 8.)
The joint-action test determines whether a private party has taken on the role
of a state actor. Under this test, “‘the governmental body and private party must be
intertwined in a symbiotic relationship.’” Focus on the Family, 344 F.3d at 1278
(quoting Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir. 2001)).
That relationship also must “involve ‘the specific conduct of which the plaintiff
complains.’” Id. (quoting Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1348
(11th Cir. 2001)).
In Focus on the Family, invoking § 1983 as a remedy for alleged constitutional
violations, Focus on the Family sued a county transit authority for refusing to sell it
advertising on the bus shelters. Id. at 1270. The district court found that the private
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company the county had subcontracted to sell the advertising space, not the county,
rejected Focus on the Family’s advertisement, and, thus, there was no state action
under § 1983. See id. at 1271.
The Eleventh Circuit reversed. It applied the joint-action test to hold that the
county could be held responsible for the private subcontractor’s rejection of the
advertisements. The county “retain[ed] final decision-making authority over the
acceptability of all proposed advertisements.” Id. at 1278. “[T]his [was] not a case
where a private actor in a contractual relationship with a governmental entity acted
independently in harming a third party, but rather that the state, acting through a
private entity, caused the third party’s harm.” Id.
Mr. Saunders’s reliance on Focus on the Family is misguided. The conduct
at the heart of Mr. Saunders’s Complaint is Mr. Edwards’s and Mr. Smith’s allegedly
ineffective assistance of counsel that resulted in Mr. Saunders’s failing to make a
timely election for death by nitrogen hypoxia under § 15-18-82.1(b)(2).
Mr.
Saunders has not alleged that the State contracted with Mr. Edwards and Mr. Smith
to represent him in his post-conviction proceedings. Nor has he alleged that the State
directed Mr. Edwards and Mr. Smith not to counsel Mr. Saunders about the revision
to the Alabama statute, its election procedures and temporal limitations, and the
consequences of the failure to make a timely election. Rather, the contractual
relationship Mr. Saunders identifies is the one deputizing Mr. Edwards and Mr.
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Smith to represent the State in Braggs v. Dunn. There also are no allegations that
the State’s contractual arrangement with Mr. Edwards and Mr. Smith had anything
to do with the amendment to § 15-18-82.1, with adding an election for a death
sentence by nitrogen hypoxia, with the statute’s implementation in state prisons, or
with Mr. Edwards’s and Mr. Smith’s professional obligations, if any, to counsel Mr.
Saunders on the statutory revision. At best, the harm Mr. Saunders complains of is
a collateral consequence of a third-party contract. Focus on the Family is, therefore,
inapposite.
VI. CONCLUSION
For the foregoing reasons, because there are no allegations establishing that
the Individual Defendants—Michael L. Edwards and John G. Smith—acted under
color of state law, Mr. Saunders fails to state a § 1983 claim for which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). Accordingly, it is ORDERED that the
Individual Defendants’ motion to dismiss (Doc. # 17) is GRANTED and that Mr.
Saunders’s claims against the Individual Defendants are DISMISSED with
prejudice.
DONE this 29th day of September, 2021.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE
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