Price v. Thomas et al
ORDER granting in part and denying in part 19 Motion to Amend Complaint as set out. Plaintiff is to file an amended complaint by 8/6/15 in compliance with order. Signed by Judge Kristi K. DuBose on 7/23/2015. (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.,
Civil Action No. 14-0472-KD-C
This matter is before the Court on Plaintiff Christopher Price’s Motion for Leave to Amend
Complaint (Doc. 19), the Defendants’ objection (Doc. 26), and Price’s response (Doc. 29). Upon
consideration, Price’s motion to amend the complaint is GRANTED IN PART and DENIED IN
PART. Price is ORDERED to file an amended complaint on or before August 6, 2015 in
compliance with this Order.
Plaintiff’s Eighth Amendment Claim
Price contends that his proposed amended complaint (Doc. 19-1) “includes additional
allegations plausibly demonstrating and specifically identifying alternative lethal injection protocols,
not utilizing midazolam hydrochloride, that are (1) readily available to the State of Alabama, (2)
currently being used by other states that are similarly situated to the State of Alabama, and (3) that, if
administered properly, would satisfy Eighth Amendment requirements.” (Doc. 19 at 2). The Eleventh
Circuit recently explained,
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.’” Chavez, 742 F.3d at 1272 (quoting Baze, 553 U.S. at 50, 128
S.Ct. at 1531 (plurality opinion)). 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.’” Id. (quoting Baze, 553 U.S. at 50, 52, 61, 128 S.Ct. at 1531–32, 1537)
(alteration in Chavez ).
Gissendaner v. Comm'r, Georgia Dep't of Corr., 779 F.3d 1275, 1283 (11th Cir.) cert. denied sub
nom. Gissendaner v. Bryson, 135 S. Ct. 1580 (2015). The Supreme Court’s recent Glossip v. Gross
decision did not alter the two requirements set forth in Baze. Glossip v. Gross, 2015 WL 2473454 at
*1 (June 29, 2015). In Glossip, a number of Oklahoma death row inmates filed a 42 U.S.C. § 1983
action claiming Eighth Amendment violations due to Oklahoma’s three drug execution protocol.
Several of the inmates sought a preliminary injunction, which was denied. Glossip states:
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The parties agree that this case turns
on whether petitioners are able to establish a likelihood of success on the merits.
Glossip at *9. Ultimately, the Court held, inter alia, that the inmates failed to establish a likelihood of
success on the merits and the district court’s denial of the motion for preliminary injunction was
Here, however, Price seeks to amend his complaint, not to obtain a preliminary injunction.
The standard for amendment of a complaint differs from that required to obtain a preliminary
injunction. With regard to amendment of a complaint, the Eleventh Circuit has held:
Under Federal Rule of Civil Procedure 15(a), a court should give leave to amend
freely ‘when justice so requires.’ Fed.R.Civ.P. 15(a). Ordinarily, a party must be
given at least one opportunity to amend before the district court dismisses the
complaint. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). The district
court, however, need not ‘allow an amendment (1) where there has been undue delay,
bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments
previously allowed; (2) where allowing amendment would cause undue prejudice to
the opposing party; or (3) where amendment would be futile.’ Id.
Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). As none of those reasons are present
here, Price’s motion to amend the portion of his complaint related to his Eighth Amendment claim is
GRANTED. The Court has considered Defendants argument that amendment of Price’s Eighth
Amendment claims would be futile, but disagrees. (Doc. 26 at 1). Though the Defendants may
choose to file a motion to dismiss later in the litigation, at this stage, the Court’s only task is to
determine whether Price is entitled to amend his complaint.1
Plaintiff’s Fourteenth Amendment Claim
Price seeks to amend his complaint to include a §1983 claim based on alleged violations of
his Equal Protection rights guaranteed by the Fourteenth Amendment. “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.” Powell v. Thomas, 643 F.3d 1300,
1303 (11th Cir. 2011). In Alabama, that limitations period is two years. Id. Moreover, in method of
execution challenges, a “claim accrues on the later 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 execution
protocol.” McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir.2008).2
Price alleges that the State has deviated from its execution protocol in the past by failing to
perform a “pinch test.” (Doc. 19-1 at 27 “Deviations from the State’s lethal injection protocol and the
Defendants’ failure to adhere to Alabama’s purported safeguard to assess consciousness,
impermissibly burden Mr. Price’s fundamental right to Equal Protection under the Fourteenth
Amendment to the U.S. Constitution.”). Though Price does not tie his allegations to specific dates of
prior to executions, the Defendants note, “Presumably, Price’s claim is based on a similar allegation
raised by another inmate concerning the June 2011 execution of Eddie Powell.” (Doc. 26 at 12). In
his response to the State’s objection to his motion to amend the complaint, Price does not point to
any allegation of deviation more recent than this. (Doc. 29).
As Price has been permitted to amend his Eighth Amendment claim, Defendants’ motion to dismiss and
supplemental motion to dismiss (Docs. 10 and 19) are MOOT.
Price’s conviction became final in 1999 and Alabama adopted lethal injection as its method of execution in July
2002. (Doc. 26 at 12). See also McNair v. Allen, 515 F.3d 1168, 1171 (11th Cir. 2008)(“On July 1, 2002, Alabama
adopted lethal injection as its preferred form of execution…”).
Price argues that the statute of limitations began to run when the state announced a protocol
employing midazolam, however, he does not point to any circumstances in Alabama where
midazolam was used but no pinch test was administered. 3 Thus, the Court presumes he is relying on
the alleged failure to administer the pinch test in Powell’s 2011 execution.4 Price first filed his
complaint on October 8, 2014. He moved to amend the complaint, and first raised the Fourteenth
Amendment claim on April 21, 2015. Thus, Price’s Fourteenth Amendment claims falls outside the
The Middle District of Alabama has arrived at the same conclusion in at least three similar
cases. See Hunt v. Myers, No. 2:14-CV-1030-WKW, 2015 WL 1198688, at *3 (M.D. Ala. Mar. 16,
2015)(Holding: “This [Fourteenth Amendment Equal Protection] claim is based on the State’s
purported material deviations from its execution protocol in past executions, specifically, the
executions of Eddie Powell in 2011 and Jeff Land in 2010, with respect to the non-performance of
the third graded stimuli in the State's consciousness assessment (i.e., the pinch test) and [Plaintiff’s]
contention that the State will make the same material deviation during his execution. Yet [Plaintiff]
does not attempt to allege or to show how his equal protection claim based on executions that
admittedly took place in 2010 and 2011—almost four years ago, at the earliest—falls within the twoyear statute of limitations. Moreover, as with his First Amendment and Fourteenth Amendment
secrecy claims, the September 2014 changes to Alabama's lethal injection protocol do not revive
[Plaintiff’s] otherwise untimely equal protection claim, as the alleged non-performance of the pinch
Price argues, “[I]t is irrelevant that executions revealing the disparities in the State’s consciousness checks may
have taken place more than two years before Mr. Price filed this action. When Alabama substituted midazolam for
pentobarbital, the State instituted a significant change that raised the failings of the State’s consciousness check
procedures to the level of an Equal Protection Clause violation.” (Doc. 29 at 7). The Court disagrees. Price’s Equal
Protection claim is based on the claim that State officials have failed to administer the pinch test in the past and that
there is a significant likelihood that they will fail to do so during Price’s execution. These alleged deviations most
recently occurred in 2011. The switch in drugs is immaterial to whether a pinch test was administered or whether it
will be administered in the future.
Though there may be allegations that the pinch test was not administered in other executions prior to Powell’s
2011 execution, the 2011 date is the most recent and for purposes of the statute of limitations inquiry, the Court will
consider the most recent occurrence.
test in Land’s and Powell’s executions could have been challenged immediately after those
executions, irrespective of the drugs used. [Plaintiff], however, waited almost four years to make this
challenge and, again, did so only after a motion to set his execution date was filed. Accordingly,
[Plaintiff’s] First Amendment and Fourteenth Amendment due process and equal protection claims
(Counts II–IV) are time-barred and due to be dismissed.); Myers v. Myers, No. 2:14-CV-1029WKW, 2015 WL 1138268, at *3 (M.D. Ala. Mar. 16, 2015)(holding the same); and Roberts v.
Myers, No. 2:14-CV-1028-WKW, 2015 WL 1198666, at *3 (M.D. Ala. Mar. 16, 2015)(holding the
Accordingly, as it is barred by the statute of limitations, Price’s motion to amend his
complaint to include a Fourteenth Amendment Equal Protection (Doc. 19-1, Count Two) claim is
DENIED AS FUTILE.
Price’s motion to amend the complaint (Doc. 19) is GRANTED IN PART and DENIED IN
PART. Price is ORDERED to file an amended complaint, which complies with this Order on or
before August 6, 2015.
DONE and ORDERED this 23rd day of July 2015.
s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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