Price v. Thomas et al
ORDER ADOPTING IN PART 15 REPORT AND RECOMMENDATIONS re 10 MOTION to Dismiss (Defendants' Motion to Dismiss) filed by Walter Myers, Kim Thomas, Alabama Department of Corrections. The Court adopts Part A, B, and D. The Court will withhold ruling for 30 days on the current motion to dismiss to allow the Plaintiff to file a motion to amend the complaint, as set out. If the amended complaint is allowed, the previously filed motion to dismiss based on failure to state a claim will be determined to be moot. Signed by Judge Kristi K. DuBose on 3/23/2015. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CHRISTOPHER LEE PRICE,
WILLIAM G. SHARP, JR., ACTING
DEPARTMENT OF CORRECTIONS, in :
his official capacity, et al.,
After due and proper consideration of the issues raised, and a de novo
determination of those portions of the recommendation to which objection is made, the
recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(l)(B) and dated
February 24, 2015, is ADOPTED, in part, as follows, as the opinion of this Court.
The Court adopts Part A, B, and D.
However, as to Part C and the conclusion,
when Magistrate Judge Cassady issued his thorough report and recommendation he
did not have the benefit of Gissendaner v. Commissioner, Georgia Dept. of Corrections, - - F. 3d - - -, 2015 WL 859534 (11th Cir. March 2, 2015).
The Court will withhold ruling
In Gissendaner, the Eleventh Circuit explained as follows: “To succeed in an Eighth
Amendment challenge to a lethal injection protocol, a prisoner must establish an
objectively intolerable risk of harm that prevents prison officials from pleading that
they were subjectively blameless for purposes of the Eighth Amendment. That requires
the prisoner to show two things: (1) the lethal injection protocol in question creates a
substantial risk of serious harm, and (2) there are known and available alternatives that
are feasible, readily implemented, and that will in fact significantly reduce [the]
substantial risk of severe pain. ” 2015 WL 859534, at *6 (internal quotation marks
for thirty (30) days on the current motion to dismiss (based on failure to state a claim),
to allow the Plaintiff to file a motion to amend the complaint. The motion should
include a proposed amended complaint with sufficient facts addressing the second
prong of Baze v. Rees, 553 U.S. 35, 50–52, 128 S. Ct. 1520, 1531–32, 170 L.Ed.2d 420 (2008)
(plurality opinion)(Plaintiff must show that there are “known and available
alternatives” that are “feasible, readily implemented, and in fact significantly reduce a
substantial risk of severe pain.”)
If an amended complaint is allowed, the previously filed motion to dismiss based
on failure to state a claim will be determined to be moot.
DONE this 23rd day of March 2015.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
omitted) (quoting Chavez v. Fla. SP Warden, 742 F.3d 1267, 1272 (11th Cir. 2014) (quoting
Baze, 553 U.S. at 50, 128 S.Ct. at 1531 (plurality opinion)).
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