Arthur v. Dunn et al

Filing 13

ORDER dismissing the Complaint with prejudice on the separate and independent grounds of res judicata and the special equitable principles governingeleventh-hour method-of-execution challenges brought by death row inmates. Plaintiff's Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction and Request for an Emergency Hearing (doc. 5) is denied as moot. Signed by District Judge William H. Steele on 5/18/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS D. ARTHUR,
Plaintiff,
v.
JEFFERSON DUNN, COMMISSIONER,
ALABAMA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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CIVIL ACTION 17-0221-WS-B

ORDER
This matter comes before the Court on sua sponte review of the court file.
Late in the afternoon of May 16, 2017, plaintiff, Thomas D. Arthur, filed a Complaint
(doc. 1) and an Emergency Motion for Temporary Restraining Order and/or Preliminary
Injunction and Request for an Emergency Hearing (doc. 5) in this District Court.1 Arthur is an
Alabama death row inmate scheduled to be executed on May 25, 2017. He brings this action and
petition for emergency injunctive relief pursuant to 42 U.S.C. § 1983, claiming that the State of
Alabama’s method of execution violates and threatens to violate his rights to be free from cruel
and unusual punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution.
The Complaint is centered on what Arthur calls “the State’s intent to execute Mr. Arthur using a
method the State knows will cause pain.” (Doc. 1, at 1.) Upon careful review, the Court finds
that the Complaint fails to state a claim upon which relief can be granted.
I.

Procedural History.
This brand-new action is not Arthur’s first § 1983 challenge to the State’s execution

protocols, nor his second or even his third. It is his fourth. On November 2, 2016, the Eleventh
1

The undersigned first became aware of the existence of this action on the
afternoon of May 17, 2017, upon notification by the Clerk of Court that it had been assigned to
the undersigned’s docket.

Circuit Court of Appeals documented Arthur’s protracted history of § 1983 method-of-execution
litigation in the federal courts as follows:
“[S]tarting nine years ago in 2007 and on three separate occasions, Arthur has
filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug protocol to be
used in his execution. This is Arthur’s third such § 1983 case, and this current §
1983 case was filed in 2011. For the last five years Arthur has pursued this §
1983 case with the benefit of lengthy discovery. The district court held a two-day
trial and entered two comprehensive orders denying Arthur § 1983 relief.”
Arthur v. Commissioner, Alabama Department of Corrections, 840 F.3d 1268, 1272 (11th Cir.
2016).
In his third § 1983 method-of-execution case, the one that was pending for five years
while extensive discovery occurred and that culminated in a two-day trial, Arthur “raised an
Eighth Amendment claim, alleging that the ADOC’s use of midazolam as the first drug creates a
substantial risk of serious harm because … there is a high likelihood that midazolam will fail to
render [him] insensate from the excruciatingly painful and agonizing effects of the second and
third drugs.” Id. at 1276 (citations omitted).2 In rejecting that claim, the Eleventh Circuit
recognized that “in order to succeed on an Eighth Amendment method-of-execution claim, the
Supreme Court has instructed that prisoners must demonstrate that the challenged method of
execution presents a risk that is sure or very likely to cause serious illness and needless suffering,
2

Notably, that five-year § 1983 method-of-execution litigation was brought by
Arthur in the United States District Court for the Middle District of Alabama, not in this District
Court. The Middle District of Alabama is well-versed in the details of Arthur’s legal challenges
to the State’s execution protocol, having been involved in that matter until 2016, having presided
over a trial of those issues, and having written multiple comprehensive orders addressing his
claims for relief. Yet, barely one week prior to his scheduled execution date, Arthur chose to file
his latest § 1983 action attacking the State’s lethal injection protocol not in the Middle District of
Alabama but in this District Court, where he last sought relief on a method-of-execution
challenge back in 2008. While he correctly pleads in his Complaint that venue is permissible in
this District Court pursuant to 28 U.S.C. § 1391, Arthur’s decision to file this new emergency
action (where time is of the essence) in a district other than the Middle District of Alabama
(which is highly familiar with his method-of-execution challenges since 2011 and which ruled
against him on all issues last year) smacks of forum-shopping. After all, the effect of plaintiff’s
strategic decision is to bypass the forum that had entered adverse rulings against him as to both
facts and law in his 2011-2016 challenge to method of execution, and to select a forum that
would be operating at a disadvantage in getting up to speed on the facts and law governing his
claims (which might in and of itself favor his attempt to obtain a stay of execution while the
Court orients itself to the applicable legal, factual and procedural landscape).

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and give rise to sufficiently imminent dangers. … [T]he prisoner must demonstrate that the risk
of severe pain is substantial when compared to the known and available alternatives.” Id. at
1299 (citations, emphasis and internal quotation marks omitted). On that basis, the Eleventh
Circuit affirmed the district court’s denial of Arthur’s facial Eighth Amendment challenge to
ADOC’s execution protocol because “Arthur has failed to show not only that compounded
pentobarbital is an available alternative to the ADOC but also that ADOC’s protocol creates a
substantial risk of severe pain when compared to available alternatives.” Id. at 1304. On
November 3, 2016, just one day after the Eleventh Circuit affirmed the dismissal of Arthur’s §
1983 complaint, the U.S. Supreme Court stayed his execution “pending further review.” Arthur
v. Dunn, 137 S.Ct. 15 (2016). On February 21, 2017, however, the Supreme Court denied
Arthur’s petition for writ of certiorari. Arthur v. Dunn, 137 S.Ct. 725 (2017). Two and a half
months later, and a mere nine calendar days before his scheduled execution date, Arthur filed
this new, fourth iteration of a § 1983 method-of-execution lawsuit in this District Court.
II.

Analysis.
Upon scrutiny of plaintiff’s filings, the Court finds that Arthur’s Complaint is

procedurally improper and is therefore due to be dismissed for at least two independent reasons.
A.

Res Judicata.

First, the present claims are barred by the doctrine of res judicata. It is well-settled, of
course, that “a final judgment on the merits bars the parties to a prior action from re-litigating a
cause of action that was or could have been raised in that action.” In re Piper Aircraft Corp.,
244 F.3d 1289, 1296 (11th Cir. 2001). Res judicata requires that the following four elements be
present: “(1) there is a final judgment on the merits; (2) the decision was rendered by a court of
competent jurisdiction; (3) the parties, or those in privity with them, are identical in both suits;
and (4) the same cause of action is involved in both cases.” Maldonado v. U.S. Atty. Gen., 664
F.3d 1369, 1375 (11th Cir. 20110 (citation omitted). If all of those elements are present, “[t]he
court next determines whether the claim in the new suit was or could have been raised in the
prior action; if the answer is yes, res judicata applies.” Piper Aircraft, 244 F.3d at 1296.
There can be no reasonable dispute that the first three elements of res judicata are
satisfied here. After all, Arthur’s prior § 1983 action in the Middle District of Alabama attacking
the constitutionality of the State’s use of midazolam as the first drug in its execution protocol
was litigated to a final judgment on the merits before a court of competent jurisdiction, and

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included substantially identical parties to the present matter. Anticipating the res judicata
defense, Arthur posits that the same cause of action is not at issue in both cases. (Doc. 6, at 1415.) The Court disagrees. To be sure, Arthur is attempting to bring what he characterizes as a
different Eighth Amendment claim against the State’s use of a midazolam-based execution
protocol in this case than the Eighth Amendment claim he directed at that same protocol in the
2011-2016 litigation in the Middle District of Alabama.3 But res judicata extends beyond the
precise claims litigated in the prior action and “bars the parties to a prior action from re-litigating
a cause of action that was or could have been raised in that action.” Maldonado, 664 F.3d at
1377 (emphasis added and citation omitted). “[I]n order to determine whether two cases involve
the same cause of action for res judicata purposes, we are obliged to look at the common nucleus
of operative fact and ask what legal theories were used or could have been employed in the first
proceeding. … A new claim is barred by res judicata if it based on a legal theory that was or
could have been used in the prior action.” Id.
Arthur insists that there is a different “nucleus of operative fact” in this case because his
previous Eighth Amendment method-of-execution challenge “was dismissed before the Smith
execution and other operative facts and events” (doc. 6, at 14), as documented in the pleading he
filed yesterday. Arthur’s present Complaint purports to rely on the State’s execution of Ronald
Bert Smith, Jr., on December 8, 2016 using the midazolam-based protocol. According to the
Complaint, after midazolam was injected, Smith moved his head and limbs, coughed, attempted
to speak, reacted to an arm pinch, and opened his eyes. (Doc. 1, ¶ 4.) Arthur’s Complaint also
cites evidence that Arkansas implemented a similar protocol in carrying out the execution of
Kenneth D. Williams several weeks ago, and that Williams coughed and jerked after being
injected with midazolam. (Id., ¶ 6.) According to the Complaint, unspecified “[a]dditional
recent executions in other states using midazolam have similarly resulted in painful deaths.”
(Id.) The Complaint alleges that “[a]s a result of these executions, the ADOC now has actual
3

Indeed, Arthur would distinguish the claims in his Complaint by indicating that
his previous § 1983 method-of-execution challenge was an Eighth Amendment claim that the
State’s protocol has “an objectively intolerable risk of harm when compared to an alternative that
is feasible,” which “does not require any showing of intent.” (Doc. 1, ¶ 33.) By contrast, Arthur
says, his Eighth Amendment claim against the same protocol in this action is that the State
“plan[s] to execute Mr. Arthur using a method it knows will cause prolonged, excruciating pain.”
(Id., ¶ 8.)

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knowledge that its protocol is likely to produce an agonizing execution – and yet it intends to
execute Arthur using the same protocol.” (Id., ¶ 7.) Thus, Arthur’s contention is that res judicata
does not apply because his Complaint in this case is relying on these new, previously unavailable
facts about executions post-dating the dismissal of his previous § 1983 complaint challenging
Alabama’s execution protocol on Eighth Amendment grounds.
The fundamental defect in plaintiff’s attempt to circumvent the preclusive effect of res
judicata is that there is nothing new or different about these “new” factual allegations. To the
contrary, Arthur and other inmates have long been filing pleadings in § 1983 method-ofexecution challenges citing factual allegations relating to “botched executions” where midazolam
has purportedly not had the anticipated or expected anesthetic effect of rendering the inmate
unconscious. For example, in the Third Amended Complaint he filed in the Middle District of
Alabama on October 13, 2015, Arthur set forth in some detail factual allegations that “[f]our
recent executions demonstrate that … midazolam will fail to anesthetize adequately the inmate.”
(Case 2:11-cv-00438-WKW-TFM, M.D. Ala., doc. 267, at ¶ 103.) In that 2015 pleading, Arthur
documented the following allegations: (i) in October 2013, Florida executed William Happ with
a midazolam-based protocol, but Happ “made an unusual number of body movements after being
administered with midazolam” (id., ¶ 104); (ii) in January 2014, Ohio executed Dennis McGuire,
who “struggled, made guttural noises, gasped for air and choked” for 10 minutes after being
injected with midazolam (id., ¶ 105); (iii) in April 2014, Oklahoma executed Clayton Lockett,
who “began to writhe and gasp” and said “oh, man” after being injected with midazolam (id., ¶
106); and (iv) in July 2014, Arizona executed Joseph Wood, who “gasped for air over 600 times”
after being injected with midazolam (id., ¶ 107).
The “other executions” factual allegations in Arthur’s present Complaint are of similar
substance and tenor as those set forth in the pleadings of his prior method-of-execution lawsuit in
the Middle District of Alabama. Arthur does not identify anything different about the Smith
execution, the Williams execution, or the unspecified “[a]dditional recent executions in other
states using midazolam” in terms of the effects of the drug on the inmate, the observed reactions
or movements of the inmate, the result of the execution and the like. To the contrary, the
purportedly “botched executions” giving rise to Arthur’s current Complaint are simply more of
the same, a continuation of substantially similar factual allegations set forth in his pleadings in
his previous Eighth Amendment challenge to Alabama’s method of execution. As such, the

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Court readily concludes that the factual predicate of the two actions is factually
indistinguishable, such that Arthur could have raised his “intent”-based Eighth Amendment
theory in the prior action. The same cause of action is involved in both cases. Arthur could have
raised his Eighth Amendment “intent” theory in his prior method-of-execution lawsuit. As such,
the claims presented in his current complaint are barred by res judicata.4
B.

Laches / Specialized Equitable Principles.

Second, Arthur’s present Complaint is procedurally improper under laches and
specialized equitable principles. Arthur commenced this action at the close of business on May
16, 2017, a scant nine days before his scheduled execution date of May 25, 2017. His Complaint
did not reach the undersigned’s desk until the afternoon of May 17, 2017. He asks for this Court
to “order an expedited briefing schedule,” conduct “an evidentiary hearing,” and “[e]njoin
4

In his current Complaint, Arthur does not distinguish among the Smith execution
in Alabama, the Williams execution in Arkansas, or the “[a]dditional executions in other states
using midazolam” for purposes of identifying the source of the State’s purported knowledge that
a midazolam-based protocol causes pain and suffering. Rather, he alleges that “[a]s a result of
these executions, the ADOC now has actual knowledge that its protocol is likely to produce an
agonizing execution.” (Doc. 1, ¶ 7 (emphasis added).) There is no suggestion, for example, that
the State of Alabama was unaware of the painful effects of a midazolam-based execution
protocol until it carried out the Smith execution in December 2016; rather, Arthur alleges that the
collective experience of various jurisdictions using midazolam-based protocols informs the State
of Alabama’s purported “knowledge.” That being the case, the executions identified in Arthur’s
October 2015 pleading in the prior lawsuit could and should have given the State the same
“knowledge” on which his current claims are predicated. Even if Arthur’s theory of liability in
this case were that the State of Alabama did not know of midazolam’s shortcomings until it
experienced a “botched execution” using that procedure firsthand (which he has neither alleged
nor articulated), he still could not avoid res judicata. After all, as Arthur is well aware, the State
of Alabama executed Christopher Brooks on January 21, 2016 using the midazolam-based
protocol, and a witness reported seeing Brooks open his eyes well after midazolam was injected.
(Case No. 16-0473-WS-B, S.D. Ala., doc. 1, ¶¶ 2, 54-61.) The Brooks execution took place
nearly three months before the Middle District of Alabama dismissed Arthur’s Eighth
Amendment claim; therefore, Arthur’s contention that res judicata is inapplicable because his
current theory was “not otherwise available at the time of the prior proceeding” (doc. 6, at 14-15)
is demonstrably incorrect, even if the Court were to accept the (unarticulated by Arthur) premise
that the State of Alabama lacked “actual knowledge” of the effects of a midazolam protocol until
it conducted “botched executions” of its own using that protocol. The undersigned readily
concludes that Arthur’s ostensibly “new claims’ herein are grounded in legal theories that were
or could have been used in the prior action, and that were available to him at the time of the prior
proceeding.

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Defendants from executing Mr. Arthur with inadequate anesthesia and execution procedures that
violate Mr. Arthur’s right to be free from cruel and unusual punishment.” (Docs. 5 & 6.)5
Arthur’s last § 1983 method-of-execution challenge took five years to resolve, yet he filed his
new § 1983 action with less than ten days to spare before his execution date. Because of the
unreasonably compressed temporal parameters resulting from Arthur’s dilatory filing and
presentation of these claims, either this entire case (from the filing of the Complaint through final
judgment and all associated appeals) will need to be completed in eight days on an emergency /
expedited basis, or his execution date will need to be stayed to allow sufficient time for
adjudication and resolution of this action in its entirety. Plaintiff has thus needlessly placed this
Court, the appellate courts, and the State in a terrible bind by waiting until the last possible
moment to file this Complaint and to raise these claims, even though the factual grounds for
those claims were known and available to him long before now.6
The Eleventh Circuit has taken a dim view of such last-minute strategic filings made by
death-row inmates on the eve of execution, given their obvious ulterior motive of delaying the
execution. See, e.g., Grayson v. Allen, 491 F.3d 1318, 1326 (11th Cir. 2007) (“If Grayson truly
had intended to challenge Alabama’s lethal injection protocol, he would not have deliberately
waited to file suit until a decision on the merits would be impossible without entry of a stay or an
5

In his “Emergency Motion” for relief, Arthur states as his lead argument that “A
STAY OF EXECUTION IS WARRANTED IN THIS CASE.” (Doc. 6, at 10.) It is thus
manifestly clear that he filed this action with the intent of obtaining an indefinite stay of his
imminent execution date, while his latest constitutional theories of relief pertaining to Alabama’s
lethal injection protocol are litigated to conclusion.
6

As noted, Arthur’s present § 1983 action is rooted in what he calls “the State’s
intent to execute Mr. Arthur using a method the State knows will cause pain.” (Doc. 1, ¶ 1.) The
“method” in question has been the State of Alabama’s announced protocol for conducting
executions since September 2014. See, e.g., Grayson v. Warden, --- Fed.Appx. ----, 2016 WL
7118393, *2 (11th Cir. Dec. 7, 2016) (“Pentobarbital became unavailable in 2014. …
Consequently, Alabama announced in September 2014 that it would begin using midazolam as
the first drug in its lethal injection protocol.”) (citations omitted). As for the State’s
“knowledge,” presumably such knowledge would have come from the “botched executions”
involving midazolam in 2013 and 2014 that Arthur recounted in his Third Amended Complaint
in the Middle District of Alabama in October 2015, or (at the absolute latest) from the
Christopher Brooks execution in January 2016. Yet Arthur inexplicably waited until mid-May
2017 to unveil this legal theory to the courts for the first time.

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expedited litigation schedule.”).7 Where, as here, a plaintiff has engaged in such unreasonable
delay, there is a strong presumption against the granting of dilatory equitable relief, and if the
plaintiff cannot overcome such presumption, the district court has discretion as a matter of equity
to dismiss the § 1983 action altogether. See Arthur v. King, 500 F.3d 1335, 1341 (11th Cir. 2007)
(“In considering the dismissal of a § 1983 challenge, courts are to apply equitable principles
which mandate dismissal when the plaintiff delayed unnecessarily in bringing the claim, …
knowing full well that the discovery, evidentiary hearing, and decision on the merits that he
demands could not possibly be accomplished within the short period of time between filing and
the scheduled execution date.”) (citations and internal quotation marks omitted).8
7

See also Ledford v. Commissioner, Georgia Dep’t of Corrections, --- F.3d ----,
2017 WL 2104682, *6 (11th Cir. May 15, 2017) (“Ledford’s claims are barred because he has not
timely made them, given he waited until five days before his execution” to challenge Georgia’s
lethal injection protocol, and “we must take into account the fact that the State and the relatives
of Ledford’s victims have a strong interest in the finality of the criminal judgments and in seeing
lawfully imposed sentences carried out in a timely manner”); Brooks v. Warden, 810 F.3d 812,
826 (11th Cir. 2016) (denying relief on equitable grounds, given plaintiff’s “unnecessary and
unjustifiable delay in challenging Alabama’s lethal injection protocol”); Henyard v. Secretary,
DOC, 543 F.3d 644, 648 (11th Cir. 2008) (“[T]he district court did not abuse its discretion in
concluding that Henyard is not entitled to a stay based on his undue delay in filing this § 1983
action on the eve of his execution and laches grounds. … As in other last-minute § 1983
challenges to lethal injection, laches bars Henyard’s motion”); Williams v. Allen, 496 F.3d 1210,
1214 (11th Cir. 2007) (“Both the State and the victim’s family have a strong interest in the timely
enforcement of Williams’s death sentence. … As such, if Williams were allowed to proceed on
his § 1983 challenge in district court, the implementation of the State’s judgment would be
delayed by many months, if not years. Williams, in essence, would receive a reprieve from his
judgment.”) (citations omitted); Jones v. Allen, 485 F.3d 635, 640 (11th Cir. 2007) (“By waiting
until November 2006 to file his challenge to the State’s lethal injection protocol, Jones leaves
little doubt that the real purpose behind his claim is to seek a delay of his execution, not merely
to effect an alteration of the manner in which it is carried out.”) (citation and internal quotation
marks omitted); Rutherford v. McDonough, 466 F.3d 970, 974 (11th Cir. 2006) (“The federal
courts can and should protect States from dilatory … suits” or “suits … filed too late in the
day.”) (citations omitted); Grayson, 2016 WL 7118393, at *8 (“Smith has offered no reason for
the delay, but if he truly had intended to challenge Alabama’s lethal injection protocol, rather
than simply delay his execution, he would not have deliberately waited to file suit until a
decision on the merits would be impossible without entry of a stay or an expedited litigation
schedule.”) (citation and internal quotation marks omitted).
8

See also Williams, 496 F.3d at 1215 (“We conclude that the district court did not
abuse its discretion in dismissing Williams’s § 1983 action due to his unnecessary delay,
especially given the strong presumption against the grant of equitable relief.”); Grayson, 491
(Continued)
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Here, Arthur has not even attempted to overcome the strong presumption against the
granting of equitable relief in these circumstances. He could have brought this particular action
challenging Alabama’s lethal injection protocol years ago, or at least no later than the Brooks
execution in January 2016. He could have litigated his claim that the State intends to inflict
gratuitous pain on him as part and parcel of his previous § 1983 method-of-execution lawsuit in
the Middle District of Alabama from 2011 through 2016. Yet he did not. Instead, Arthur waited
until barely a week before his scheduled execution date to assert this claim as part of a brand new
§ 1983 lawsuit, his fourth method-of-execution challenge in the last decade. Under these
circumstances, the Court perceives no possible justification for Arthur’s failure to bring this
particular challenge earlier to allow sufficient time for full adjudication on the merits of his
claim. Arthur bears sole responsibility for this unreasonable, unnecessary and inexcusable delay
in bringing suit, which prevents his method-of-execution claim from being adjudicated without
granting a stay of execution. He has not carried his burden to plead facts that might plausibly
demonstrate entitlement to equitable relief under the facts and circumstances of this case.
Therefore, even if this action were not barred by res judicata (which it is), dismissal would
remain appropriate because of Arthur’s unnecessary and unreasonable delay in filing his
Complaint.9

F.3d at 1326 (“Given the strong presumption against the grant of dilatory equitable relief, we
conclude that the district court did not abuse its discretion in dismissing Grayson’s § 1983 action
due to his unnecessary delay.”); Arthur v. Allen, 248 Fed.Appx. 128, 132-33 (11th Cir. Sept. 17,
2007) (“There was no justification for Arthur’s failure to bring his lethal injection challenge
earlier to allow sufficient time for full adjudication on the merits of this claim. Accordingly, the
district court’s judgment of dismissal is AFFIRMED.”); Hallford v. Allen, 634 F. Supp.2d 1267,
1275-76 (S.D. Ala. 2007) (“Hallford has unreasonably delayed in bringing this § 1983 action,
and … a consequence of his unreasonable delay is that a final decision on the merits is not
reasonably possible without entry of a stay of execution and/or an expedited litigation schedule.
These circumstances trigger the ‘strong equitable presumption’ against the grant of injunctive
relief. … Plaintiff having made no showing to rebut that presumption, dismissal is appropriate.”)
(citations omitted).
9

In light of this Court’s determinations that Arthur’s claims are barred by both res
judicata and the special equitable principles governing emergency § 1983 petitions filed by
death-row inmates on the eve of execution for the purpose of delaying their execution dates, it is
not necessary to address the merits of the Complaint. Nonetheless, the Court observes that the
legal premise of Arthur’s Eighth Amendment claim – namely, that a method-of-execution
(Continued)
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challenge to the use of midazolam in a three-drug protocol is cognizable even in the absence of
alternative methods where the State has “actual knowledge” that its method causes pain and
suffering – appears devoid of legal support. Arthur attempts to sidestep his lack of evidence of a
readily available alternative method of carrying out his execution (which ultimately defeated his
previous method-of-execution challenge filed in the Middle District of Alabama) by blithely
asserting that such proof “is not an element of Mr. Arthur’s current claim.” (Doc. 6, at 15.) In
support of this theory, Arthur cites only concurring and dissenting opinions authored by specific
Supreme Court justices. But Arthur’s theory appears to fly in the face of the Glossip / Baze line
of authorities. It does not appear that the Supreme Court or the Eleventh Circuit has ever
recognized an Eighth Amendment method-of-execution challenge to a lethal injection protocol
without proof by the plaintiff of a readily available alternative method. The Supreme Court has
repeatedly recognized that “because it is settled that capital punishment is constitutional, it
necessarily follows that there must be a constitutional means of carrying it out.” Glossip v.
Gross, --- U.S. ----, 135 S.Ct. 2726, 2732-33, 192 L.Ed.2d 761 (2015) (citation and internal
marks omitted). Arthur’s present legal theory would throw that principle out the window,
effectively saying that the State of Alabama is forbidden to execute him at all where it is aware
that its method causes pain and suffering, even though the defendant has failed to identify any
readily available alternative method that might alleviate such pain and suffering. Arthur is
effectively calling for erasure of the entire Glossip/Baze framework, based on nothing more than
a cursory allegation of “actual knowledge” by the State. From a factual standpoint, Arthur has
alleged no facts supporting a plausible inference that Alabama’s lethal-injection protocol was (to
cite from the same concurring opinion on which Arthur relies) “designed to inflict torture as a
way of enhancing a death sentence … [or] intended to produce a penalty worse than death.”
Baze v. Rees, 553 U.S. 35, 101-02, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (Thomas, J.,
concurring). At best, plaintiff’s factual allegations may support a plausible inference that the
State of Alabama’s lethal injection protocol may not function in a pain-free or even error-free
manner, but that no one (especially not Arthur, despite five years of prior litigation and extensive
discovery on the subject) has identified any readily available alternative means by which the
State of Alabama might carry out his death sentence in a manner that substantially reduces the
risk of severe pain. This is not the kind of gratuitous infliction of pain that Justice Thomas was
referring to in his Baze concurrence. Thus, Arthur has identified neither facts nor law that
Alabama’s lethal-injection protocol (which has been intensely litigated by Arthur and other
Alabama death-row inmates in recent years) is “[t]he evil the Eighth Amendment targets.” Id. at
102. After all, the “evil” identified by Arthur – the State’s use of midazolam in a three-drug
protocol – has been described by the U.S. Supreme Court not as a sadistic medieval instrument
of torture intended to inflict pain for the sake of pain or to produce a penalty worse than death,
but instead as a pain-reducing safeguard approved by many federal courts as a means of
rendering the inmate insensate to pain. See Glossip, 135 S.Ct. at 2739-40 (“numerous courts
have concluded that the use of midazolam as the first drug in a three-drug protocol is likely to
render an inmate insensate to pain that might result from administration of the paralytic agent
and potassium chloride”). Therefore, even if the Court were to reach the merits (which it does
not), it would conclude that Arthur’s claims are meritless because he has identified neither facts
nor law that might plausibly allow him to circumvent the Glossip/Baze requirement (which he
(Continued)
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III.

Conclusion.
For all of the foregoing reasons, the Complaint is dismissed with prejudice on the

separate and independent grounds of res judicata and the special equitable principles governing
eleventh-hour method-of-execution challenges brought by death row inmates. In light of this
determination, plaintiff’s Emergency Motion for Temporary Restraining Order and/or
Preliminary Injunction and Request for an Emergency Hearing (doc. 5) is denied as moot. A
separate judgment will enter.10
DONE and ORDERED this 18th day of May, 2017.
s/WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

has previously tried and failed to meet in many years of litigation) that he identify a “feasible,
readily available alternative method of execution that would substantially reduce the risk of an
unconstitutional level of pain.” Grayson, 2016 WL 7118393, at *6. He has pleaded no facts
plausibly suggesting that Alabama designed its lethal injection protocol as a means of inflicting
gratuitous pain or torture on the condemned.
10

In what appears to be an afterthought (because the facts and reasoning of such a
claim are not addressed in any meaningful way in the 14 pages of his Complaint preceding Count
Two), Arthur has tacked on a Fourteenth Amendment Equal Protection claim as Count Two of
his Complaint. Arthur posits that “[d]efendants’ failure to adhere to Alabama’s purported
safeguard burdens Mr. Arthur’s right to Equal Protection.” (Doc. 1, ¶ 56.) The factual basis of
this claim is, apparently, Arthur’s contention that there was “a significant deviation from the
ADOC’s protocol” in Ronald Smith’s execution on December 8, 2016 when ADOC injected him
with the second and third drugs despite Arthur’s belief that Smith “was not insensate.” (Id., ¶
54.) However, Arthur concedes in the same pleading that, following the Smith execution,
defendant Dunn stated, “we do know we followed our protocol. We are absolutely convinced of
that.” (Doc. 1, ¶ 39.) The fundamental problem with Arthur’s equal protection claim is that
“[t]o state an equal protection claim, [Arthur] must show that the State will treat him disparately
from other similarly situated persons.” DeYoung v. Owens, 646 F.3d 1319, 1327 (11th Cir.
2011). Arthur does not identify any facts raising a plausible inference that he will be treated any
differently than any other Alabama death row inmate facing execution in the future. Thus, even
if Count Two were not procedurally barred on grounds of laches / equitable principles (which it
is), this claim would be properly dismissed on the merits for want of any plausible factual
allegation in the Complaint that the State will treat Arthur disparately from other similarly
situated persons, which is a cornerstone of an equal protection claim.

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