Marcus A. Wellons v. Commissioner, Georgia Department of Corrections , 754 F.3d 1260 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12663-P
________________________
D.C. Docket No. 1:14-cv-01827-WBH
MARCUS A. WELLONS
Plaintiff - Appellant,
versus
COMMISSIONER,
GEORGIA DEPARTMENT OF CORRECTIONS,
et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 17, 2014)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Petitioner Marcus A. Wellons has appealed today from the district court’s
denial of his 42 U.S.C. § 1983 action seeking a temporary restraining order, a stay
of his execution, a preliminary injunction, and a request for declaratory judgment.
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He is scheduled to be executed by lethal injection today at 7:00 p.m. Upon
thorough consideration of the parties’ arguments and prevailing law, we find that
Wellons has not established a substantial likelihood of success on the merits of his
Eighth Amendment or other constitutional claims.
I. BACKGROUND
Wellons was convicted of the malice murder and rape of fifteen-year-old
India Roberts on June 6, 1993. The Supreme Court denied his petition for writ of
certiorari on direct appeal. Wellons v. Georgia, 519 U.S. 830, 117 S. Ct. 97(1996). Following denial of state habeas relief, Wellons filed a federal petition for
writ of habeas corpus in the Northern District of Georgia, which was also denied.
This court affirmed the denial of habeas relief, Wellons v. Hall, 554 F.3d 923 (11th
Cir. 2006), but the Supreme Court granted his petition and remanded for further
consideration, Wellons v. Hall, 558 U.S. 220, 130 S. Ct. 727 (2010) (per curiam).
After remanding Wellons’s case to the district court for further proceedings
consistent with the Supreme Court’s opinion, we affirmed the district court’s
denial of Wellons’s habeas petition. Wellons v. Warden, 695 F.3d 1202 (2012).
The Supreme Court denied Wellons’s petition for writ of certiorari. Wellons v.
Humphrey, 134 S. Ct. 177 (2013).
Defendants have scheduled Wellons for execution on June 17, 2014.
Following denial of his state appeals, Wellons filed a Section 1983 complaint
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seeking a temporary restraining order and stay of execution before the district
court for the Northern District of Georgia. Wellons also sought a declaratory
judgment that Defendants’ refusal to disclose information concerning the
provenance of their lethal injection drugs and the qualification of their execution
team violates his rights pursuant to the First, Fifth, Eighth and Fourteenth
Amendments. Wellons argues that Defendants have refused to disclose how they
plan to execute him, relying upon Georgia’s recent legislation that classifies all
“identifying information” about a “person or entity who participates in or
administers the execution of a death sentence . . . [or] that manufactures, supplies,
compounds, or prescribes the drugs, medical supplies, or medical equipment” used
in an execution as a “confidential state secret” not subject to disclosure. O.C.G.A.
§ 42-5-36(d) (effective July 1, 2013) (the “Lethal Injection Secrecy Act”).
Wellons asserts that the only information Defendants have divulged
concerning his execution is a copy of the lethal injection procedure that they
adopted on July 17, 2012, which outlines a one-drug injection protocol of
“pentobarbital.” Because Defendants have not had any FDA-approved
pentobarbital in their possession since March of 2013, but have indicated that they
obtained pentobarbital for this execution, Wellons argues that they may use a
substance that purports to be pentobarbital, but that has been manufactured from
unknown ingredients and in unknown circumstances by a compounding pharmacy.
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Further, Wellons explains that the Supreme Court of Georgia has empowered
Defendants to change their protocol at will and with no supervision or meaningful
notice to the prisoner or public. See Hill v. Owens, 738 S.E. 2d 56 (Ga. 2013).
Wellons presents several arguments for why his lack of knowledge about the drug
that will be used at his execution violates his constitutional rights. First, he details
the risks of using a compounded pentobarbital from an undisclosed source, arguing
that it poses a substantial threat of undue pain and suffering. Second, Wellons
argues that Oklahoma’s recent botched execution of Clayton Lockett highlights the
risks of Defendants’ refusal to disclose the qualifications of the personnel who will
administer Wellons’s execution.
The district court held a hearing on June 16, 2014 on Wellons’s claims
regarding the provenance of the drugs to be used in his execution and the expertise
of the personnel who will carry out the execution. The district court concluded that
Wellons was not entitled to the declaratory or injunctive relief that he sought, and
granted the Defendants’ motion to dismiss Wellons’s Section 1983 claims.
Specifically, the district court found that Wellons’s assertion that there may be a
problem with the pentobarbital or that the person placing the intravenous lines into
him may not be qualified to perform the task was mere speculation and “cannot
substitute for evidence that the use of the drug is sure or very likely to cause
serious illness and needless suffering.” Brewer v. Landrigan, __ U.S. __ , 131 S.
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Ct. 445 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50, 128 S. Ct. 1520 (2008)); see
Mann v. Palmer, 713 F.3d 1306, 1315 (11th Cir.), cert. denied, 133 S. Ct. 1752(2013).
II. STANDARD OF REVIEW
A temporary restraining order or a stay of execution is appropriate only if
the movant demonstrates: “(1) a substantial likelihood of success on the merits; (2)
that the preliminary injunction is necessary to prevent irreparable injury; (3) that
the threatened injury outweighs the harm the preliminary injunction would cause
the other litigant; and (4) that the preliminary injunction would not be averse to the
public interest.” Chavez v. Florida SP Warden, 742 F.3d 1267, 1271 (11th Cir.),
cert. denied 134 S. Ct. 1156 (2014).
We review a district court’s denial of a stay of execution for abuse of
discretion. Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011) (per curiam);
Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir. 2011) (per curiam).
III. DISCUSSION
A. Statute of Limitations
As a preliminary matter, we note that the district court did not address
whether Wellons’s § 1983 claims were time barred. Claims brought pursuant to 42
U.S. § 1983 are subject to the statute of limitations period governing personal
injury actions in the state where the action is brought. Crowe v. Donald, 528 F.3d
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1290, 1292 (11th Cir. 2008). In Georgia, the statute of limitations for tort actions
is two years. DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir. 2011). This
court has explained that a petitioner’s “method of execution 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 changes execution protocol.”
McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). In Arthur v. Thomas, we
held that whether a significant change has occurred in a state’s method of
execution is a fact dependent inquiry. 674 F.3d 1257, 1260 (11th Cir. 2012)
(remanding for a hearing to fully consider whether the change in Alabama’s
execution protocol constituted a “significant change” which would reset
petitioner’s statute of limitations).
Wellons argues that the Eighth Amendment entitles him to the information
necessary to determine whether Georgia’s method of execution is cruel and
unusual.1 Defendants gave Wellons the 2012 Georgia Department of Correction
Lethal Injection Protocol in May 2014, and Wellons concedes that Defendants
have indicated that they have obtained pentobarbital for his execution. This 2012
protocol sets forth the state’s one-drug lethal injection protocol of using five grams
of pentobarbital administered by trained medical personnel, including a physician
1
Wellons insists that he is not making a “method of execution” claim, but rather an
Eighth Amendment challenge premised on his lack of information regarding the method and
manner of his upcoming execution. As we see it, however, Wellons’s challenge boils down to a
method of execution challenge. Cf. Powell v. Thomas, 641 F.3d 1255, 1257-58 (11th Cir. 2011).
For the purposes of this case, the statute of limitations analysis is the same.
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and an IV nurse. However, because Defendants have not had any FDA-approved
pentobarbital in their possession since March of 2013, Wellons believes that they
will inject him with a compounded pentobarbital from an unknown manufacturer.
Wellons appears to be arguing that Defendants will not follow their Legal Injection
Protocol, or alternatively that changing from pentobarbital to a compound
pentobarbital could constitute a “significant change” restarting the statute of
limitations. Arthur, 674 F.3d at 1260. However, the Georgia Department of
Corrections’ anticipated use of an adulterated pentobarbital does not establish a
“significant alteration in the method of execution.” See Mann, 713 F.3d at 1314
(11th Cir. 2014) (“Because Mann cannot establish that the substitution of
pentobarbital constituted a significant alteration to the method of execution in
Florida, all of his claims not barred by res judicata are untimely.”). Nor has
Wellons alleged facts sufficient to show that Georgia’s legal injection procedure
has “substantially changed” based on the lethal injection secrecy act adopted by the
Georgia legislature in March of 2013, which the Georgia Supreme Court has
determined is constitutional. O.C.G.A. § 42-5-36; see Owens v. Hill, No.
S14A0092, 2014 Ga. LEXIS 400 (Ga. May 19, 2014).
Therefore, Wellons last became subject to a substantially changed execution
protocol in October 2001, when the Georgia Supreme Court declared that
execution by electrocution violated the state constitution and directed any further
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executions to be carried out by lethal injection. Dawson v. State, 554 S.E. 2d 137,
139 (2001); see DeYoung, 646 F.3d at 1324. Thus, it appears to us that the statute
of limitations began to run in 2001 and has expired. Nevertheless, given the
critical nature of Wellons’s challenges and district court’s treatment of Wellons’s
claims, we proceed to the merits of his claims as well.
B. Wellons’s Eighth Amendment Challenge
Wellons argues that the Eighth Amendment entitles him to the information
required to determine whether Georgia’s lethal injection procedure is cruel and
unusual. Specifically, the use of pentobarbital from a compounding pharmacy can
add an unacceptable risk of pain, suffering, and harm because compounding
pharmacies are not subject to the FDA regulation. Wellons maintains that the lack
of oversight can lead compounding pharmacies, even those operating in good faith,
to make critical mistakes in the production of drugs. Wellons also argues that he
has not been permitted to learn about the qualifications of the individuals who will
carry out his execution and has presented evidence that if pentobarbital is injected
improperly, it can cause serious chemical burns.
Wellons argues that the Supreme Court has not hesitated to recognize a due
process right to the information necessary to determine whether an Eighth
Amendment violation exists. See Ford v. Wainwright, 477 U.S. 399, 417–18, 106
S. Ct. 2595 (1986) (holding that Florida’s procedures for determining sanity of a
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death row prisoner were inadequate to afford a full and fair hearing on the issue
and that the petitioner was entitled to an evidentiary hearing on the issue of his
competence to be executed). In short, Wellons insists that Defendants are denying
the information necessary to determine whether his Eighth Amendment rights are
being violated—while claiming not to implicate his rights at all. Defendants insist,
however, that Wellons’s claim is speculative because he is arguing that the
compounded pentobarbital could be imperfect, or that something could go wrong
with the administration of the drug by prison personnel. Defendants argue that just
because an execution may inadvertently result in pain, this does not establish the
“objectively intolerable risk of harm” necessary to establish an Eighth Amendment
violation. Baze, 553 U.S. at 51, 128 S. Ct. at 1531 (internal quotation marks
omitted).
In order to prevail on an Eighth Amendment challenge, Wellons must
demonstrate that the State is being deliberately indifferent to a condition that poses
a substantial risk of serious harm to him. Indeed, where an Eighth Amendment
cruel and unusual punishment claim alleges the risk of future harm, “the conditions
presenting the risk must be ‘sure or very likely to cause serious illness and needless
suffering,’ and give rise to ‘sufficiently imminent dangers.’” Baze, 553 U.S. at 50(quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)). “In the lethal
injection context, this standard requires an inmate to show an objectively
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intolerable risk of harm that prevents prison officials from pleading that they were
subjectively blameless for purposes of the Eighth Amendment.” DeYoung, 646
F.3d at 1325 (internal quotations and citation omitted). A plaintiff must also show
that the risk of severe pain is “substantial when compared to the known and
available alternatives.” Baze, 553 U.S. at 61.
The district court concluded that Wellons failed to establish a claim that the
state has prevented him from asserting an Eighth Amendment claim, noting that
state government officials are presumed to carry out their duties in a good-faith
manner and in compliance with federal laws, citing Alas. Dep’t of Envtl.
Conservation v. E.P.A., 540 U.S. 461, 507, 124 S. Ct. 983, 1013 (2004). The
district court presumes that Defendants will act in good faith in selecting the
pentobarbital and appointing the team that will carry out Wellons’s execution.
Accordingly, the district court concluded that Wellons’s arguments were mere
speculation which “cannot substitute for evidence that the use of the drug is sure or
very likely to cause serious illness and needless suffering.” Landrigan, 131 S. Ct.
at 445 (internal quotation marks omitted).
Upon independent review, Wellons has not established that the trial court
abused its discretion in denying the stay of his execution. We have held that
speculation that a drug that has not been approved will lead to severe pain or
suffering “cannot substitute for evidence that the use of the drug is sure or very
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likely to cause serious illness and needless suffering.” Mann, 713 F.3d at 1315.
Here, Wellons’s argument that the compounded pentobarbital may be defective or
the personnel administering the execution may be untrained is insufficient to
establish a substantial likelihood of success on the merits of his Eighth
Amendment claim. See, e.g., Chavez, 742 F.3d at 1272; see also Mann, 713 F.3d
at 1315 (“The Supreme Court has rejected the notion that the absence of approval
by the Administration is sufficient to establish a substantial risk of severe pain.”);
Sells v. Livingston, No. 14-70014, 2014 WL 1316339 (5th Cir. Apr. 2, 2014)
(“Plaintiff argues that because the State has transitioned to a new source for the
compounded pentobarbital, there are unknowns because of the possibility of
improper compounding or contamination. But plaintiff cannot rely on speculation
alone. Plaintiffs must point to facts or evidence based on science and fact showing
the likelihood of severe pain.”), cert. denied, 134 S. Ct. 1787, 188 L. Ed. 2d 612(2014); In re Lombardi, 741 F.3d 888, 896-97 (8th Cir. Jan. 24, 2014) (“Without a
plausible allegation of a feasible and more humane alternative method of
execution, or a purposeful design by the State to inflict unnecessary pain, the
plaintiffs have not stated an Eighth Amendment claim based on the use of
compounded pentobarbital. . . . As to the other claims raised by the plaintiffs, the
identities of the prescribing physician, pharmacist, and laboratory are plainly not
relevant.”), cert. denied, 134 S. Ct. 1790 (2014) and reh’g denied, 741 F.3d 90311
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(8th Cir. 2014). Moreover, Wellons has “failed to show that any . . . alternative
procedure or drug is ‘feasible, readily implemented, and in fact significantly
reduce[s] a substantial risk of severe pain.’” Mann, 713 F.3d at 1315 (alteration in
original) (quoting Baze, 553 U.S. at 52).
C. Wellons’s First, Fifth, and Fourteenth Amendment Challenges
Wellons maintains that due process entitles a person whose constitutional
rights will be affected by state actions to, at minimum, both notice of those actions
and an opportunity to be heard in a meaningful manner. See Fuentes v. Shevin,
407 U.S. 67, 80, 92 S. Ct. 1983, 1994 (1972) (“Parties whose rights are to be
affected are entitled to be heard; and in order that they may enjoy that right they
must first be notified.” (internal quotation marks omitted)). Additionally, Wellons
argues that Defendants’ refusal to provide him with information regarding his
execution denies him his First Amendment right of access to governmental
proceedings. Wellons maintains that the Supreme Court has guaranteed a qualified
right of access to governmental proceedings, in order to “ensure that the individual
citizen can effectively participate in and contribute to our republican system of
self-government.” Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457
U.S. 596, 604, 102 S. Ct. 2613, 2619 (1982). When determining whether the
public has a First Amendment right of access to a particular governmental
proceeding, reviewing courts must inquire into two “complementary
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considerations”: (1) “whether the place and process have historically been open to
the press and general public” and (2) “whether public access plays a significant
positive role in the functioning of the particular process in question.” Press-
Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9, 106 S. Ct. 2735, 2740 (1986).
Wellons argues that both criteria are met. First, executions have historically been
open events. Indeed, prior to Georgia’s adoption of the Lethal Injection Secrecy
Act, Wellons insists that Defendants would, in response to Open Records Act
requests, provide prisoners and the public with detailed information about the
drugs used in executions. Second, public access to information certainly plays a
positive role in the functioning of capital punishment. Wellons insists that an
informed public debate is critical in determining “‘whether execution by lethal
injection comports with the evolving standards of decency which mark the
progress of a maturing society.’” Cal. First Amendment Coalition v. Woodford,
299 F.3d 868, 876 (9th Cir. 2002) (citing Trop v. Dulles, 356 U.S. 86, 101, 78 S.
Ct. 590 (1958)).
The district court concluded, however, that Wellons’s due process claim was
merely a restatement of his Eighth Amendment claims, and was too speculative to
succeed on the merits. With respect to Wellons’s First Amendment claim, the
district court agreed with Defendants that while there may be First Amendment
implications involved in the openness of government operations, the cases Wellons
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relies upon turn on the public’s, rather than the individual’s, need to be informed
so as to foster debate. See Pell v. Procunier, 417 U.S. 817, 831, 94 S. Ct. 2800,
2808 (1974). The district court determined that Wellons did not have a First
Amendment right to access this information from Defendants. 2
We agree with the judgment of the district court. Neither the Fifth,
Fourteenth, or First Amendments afford Wellons the broad right “to know where,
how, and by whom the lethal injection drugs will be manufactured,” as well as “the
qualifications of the person or persons who will manufacture the drugs, and who
will place the catheters.” See Lewis v. Casey, 518 U.S. 343, 354 (1996)
(“[S]tatements [in Bounds] appear to suggest that the State must enable the
prisoner to discover grievances, and to litigate effectively once in court. . . .These
elaborations upon the right of access to the courts have no antecedent in our pre-
Bounds cases, and we now disclaim them.” (citing Bounds v. Smith, 430 U.S. 817,
825 (1977)); Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013) (“There is no
violation of the Due Process Clause from the uncertainty that Louisiana has
imposed on Sepulvado by withholding the details of its execution protocol.”);
Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011) (holding that the prisoners,
who argued that the Arkansas Method of Execution Act violated the due process
2
Although the district court did not explicitly cite Wellons’s burden for achieving the
injunctive relief he seeks, see Chavez, 742 F.3d at 1271, we interpret its conclusion as a finding
that Wellons did not establish a substantial likelihood of success on the merits of his due process
or First Amendment claims.
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clause because its secrecy denied them “an opportunity to litigate” their claim that
the execution protocol violated the Eighth Amendment, failed to state a plausible
due process access-to-the-courts claim). Wellons has not established a substantial
likelihood of success on the merits of his claim that the dearth of information
regarding the nature of the pentobarbital that will be used in his execution and the
expertise of those who will carry it out violates the First Amendment or his right to
due process. This ground is also a sufficient basis to conclude that the district
court did not abuse its discretion in concluding that Wellons is not entitled to
injunctive relief on these claims.
IV. CONCLUSION
We conclude that the district court’s determination, following an evidentiary
hearing, to deny Wellons a stay of execution or a temporary restraining order was
not an abuse of discretion. Wellons’s Motion for a Stay of Execution is DENIED.
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WILSON, Circuit Judge, concurring in judgment:
With respect to Wellons’s Eighth Amendment claim, I agree that the district
court did not abuse its discretion in concluding that Wellons failed to show the
likelihood of success on the merits required for injunctive relief. However, I write
separately to highlight the disturbing circularity problem created by Georgia’s
secrecy law regarding methods of execution in light of our circuit precedent.
We explained in Mann v. Palmer that “[a]fter Baze, an inmate who seeks a
stay of execution must establish that the lethal injection protocol of his state creates
a demonstrated risk of severe pain that is substantial when compared to the known
alternatives.” 713 F.3d 1306, 1315 (11th Cir. 2013) (emphasis added). Although
Wellons insists that his is not a “method of execution” claim, in order to succeed
under the Eighth Amendment, he must show that the manner in which Georgia
intends to execute him generates “a substantial risk of serious harm or an
objectively intolerable risk of harm.” Baze v. Rees, 553 U.S. 35, 51, 128 S. Ct.
1520, 1532 (2008) (internal quotation marks omitted). Possibly due to his lack of
information about the compound pentobarbital that will be used and the expertise
of the people who will administer his execution, Wellons has not shown such a
risk. Indeed, how could he when the state has passed a law prohibiting him from
learning about the compound it plans to use to execute him? Although Wellons
has been given the 2012 Lethal Injection Protocol which indicates that
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pentobarbital will be used, he also knows that Defendants have not had any FDA-
approved pentobarbital in their possession since March of 2013, and thus can only
assume they will be using a substance that purports to be pentobarbital but has
been manufactured from unknown ingredients and in unknown circumstances by a
compounding pharmacy. Without additional information about the method of his
execution, it seems nearly impossible for Wellons to make the argument that
Defendants’ planned execution creates an “objectively intolerable risk of harm.”
Id.Similarly, while I agree that Wellons has not provided sufficient support for
his general due process or First Amendment claim, I have serious concerns about
the Defendants’ need to keep information relating to the procurement and nature of
lethal injection protocol concealed from him, the public, and this court, especially
given the recent much publicized botched execution in Oklahoma. Unless judges
have information about the specific nature of a method of execution, we cannot
fulfill our constitutional role of determining whether a state’s method of execution
violates the Eighth Amendment’s prohibition against cruel and unusual punishment
before it becomes too late.
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