Court denies State's motion to dismiss prisoners' challenges to lethal injection protocol
On Monday, a federal court Judge issued a 51-page, very well-written Order denying the State’s recent motion to dismiss Plaintiffs’ complaints challenging Florida's lethal injection protocol.
Florida death row prisoners Charles G. Brant, Fred Anderson, Jr., Etheria V. Jackson, Joe Elton Nixon, and William Roger Davis (referenced collectively as the “Prisoners”) each “initiated a nearly identical action challenging the constitutionality of Florida’s lethal injection protocol pursuant to 42 U.S.C. § 1983” in the U.S. District Court for the Middle District of Florida. The Prisoners raise two constitutional challenges against the protocol under the Eighth Amendment:
In their first claim for relief, Plaintiffs assert that the drug combination used in the Etomidate Protocol raises a substantial risk that they will suffer unnecessary pain during the execution. . . . Plaintiffs contend, however, that etomidate is an inadequate anesthetic because (1) its ultra-short sedating effects are insufficient to ensure that they will remain unconscious throughout the execution; (2) it causes significant pain upon injection; (3) it has no analgesic properties; (4) its side effects, including myoclonus, make the consciousness assessment more difficult; (5) if it comes into contact with rocuronium bromide in the IV, it will precipitate and lead to incomplete delivery; and (6) it can cause “flash pulmonary edema,” which will cause the inmate to experience excruciating pain akin to drowning.
. . . .
Plaintiffs next assert that Defendants’ written lethal injection protocol exacerbates the risk of serious harm associated with etomidate. According to Plaintiffs, the protocol overlooks how etomidate’s short-term anesthetic properties affect the consciousness test. And Plaintiffs maintain that the current protocol does not require personnel charged with carrying out specific lethal injection tasks to obtain an appropriate level of expertise.
. . . .
As their second claim for relief, Plaintiffs assert that “Defendants’ adoption of a protocol with no analgesic drugs and with a paralytic drug that suffocates the condemned and masks the extreme pain caused by all three drugs violates the evolving standards of decency” encompassed in the Eighth Amendment. According to Plaintiffs, many death penalty states have abandoned the use of a paralytic and potassium without an analgesic drug. They assert that since 2015, of the “64 executions using a paralytic, Florida accounted for 25% of them (16 executions).” Plaintiffs maintain that Virginia, which had accounted for three of those paralytic executions, has abolished the death penalty altogether, and Tennessee and Ohio, which accounted for five of those paralytic executions, now have a moratorium on lethal injection1
While each case is in a different procedural posture, in the interest of efficiency, the cases were consolidated for discovery and pretrial. The defendants are the Warden of Florida State Prison (where executions are conducted) and Ricky Dixon, the Secretary of the Florida Department of Corrections (DOC) (referenced collectively as the “State”).
The State filed a motion to dismiss the operative complaints. (The State’s prior motions to dismiss the Prisoners’ prior complaints were unsuccessful.) In the motion, the State argued the Prisoners’ claims should be dismissed for several reasons:
(1) Plaintiffs failed to properly exhaust their administrative remedies before filing suit; (2) all of Anderson, Jackson, and Nixon’s11 claims in their Amended Complaints, and all Plaintiffs’ general claims challenging the execution team’s lack of training and qualifications, are barred by the statute of limitations; (3) Plaintiffs fail to state an Eighth Amendment claim upon which relief can be granted; (4) Plaintiffs’ claims for declaratory and injunctive relief against Defendant Allen are redundant; and (5) Plaintiffs fail to state a Fourteenth Amendment claim upon which relief can be granted.
In response to the State’s motion, the Prisoners argue that the State “waived and forfeited any defenses and objections that were not raised in [its] previous motions to dismiss, and [the State has] not offered any persuasive arguments warranting the Court’s reconsideration of its previous denials of [its]’ prior motions to dismiss.”
On Monday, the Court issued a 51-page, very well-written Order denying the State’s recent motion to dismiss the Prisoners’ amended complaints.
As to the State’s first and second arguments, the Court stated that they are identical to the arguments raised in the State’s prior motions to dismiss as to each of the Prisoners except Nixon, which the Court previously “considered and rejected.” Because the State “neither articulated a new basis for dismissal on those grounds, nor . . . argued or highlighted any new legal or factual developments warranting the Court’s reconsideration of its prior Orders,” the Court found “it unnecessary to repeat its analysis” and denied the arguments for the same reasons stated in 2019.
The Court then addressed these arguments as to Nixon only and denied each in turn. On the first argument regarding Nixon’s failure to exhaust administrative remedies, the Court determined that Nixon’s allegations about his efforts to meet this requirement (which the Court must accept as true at this stage) were sufficient to defeat dismissal. The Court further commented on DOC’s “boilerplate responses” to Nixon’s grievances that the Court determined “show that it [DOC] does not intend to consider any challenge to its lethal injection protocol based on inmate grievances.”
As to the State’s argument on the statute of limitations (SOL), the Court stated that the claim is subject to a four-year SOL under Florida law. When Nixon’s death sentence became final in 1991, Florida did not have a lethal injection protocol. The Court determined that Nixon “needed to bring a lethal injection challenge by February 13, 2004”—four years after DOC implemented lethal injection as its primary method of execution. However, Nixton argued that Florida substituting midazolam for etomidate in its 2017 protocol when executions resumed after Hurst amounted to a “substantial change” in the protocol that reset the SOL clock. The State did “not dispute that no other federal or state court has decided whether the substitution of etomidate for midazolam is a ‘significant change’ in Florida’s lethal injection protocol for purposes of determining when the statute of limitations begins to run.” Therefore, the Court found that Nixon’s claims “about etomidate are not so similar to those presented and fully litigated in prior cases” about the midazolam protocol to warrant dismissal. Rather, the Court held that Nixon is entitled to discovery on his claims.
Third, the State argued that Nixon failed to state a claim under the Eighth Amendment. The Court “decline[d] to find that Nixon’s claims are foreclosed by the factual findings and legal conclusions” the Florida Supreme Court has made in Asay or Long—as the State argued it should. The Court reasoned that Nixon was not a party to either of those cases and “had no control over the claims.” The Court concluded that Nixon’s “assertions that etomidate is insufficient to render him insensate throughout the execution present a plausible claim that Florida’s lethal injection protocol creates a substantial risk of serious harm” and are, therefore, sufficient to defeat dismissal.
As to all of the Prisoners, the State argued that the Prisoners’ claims against Warden Allen should be dismissed because they are redundant to the Prisoners’ claims against Secretary Dixon. In response, the Prisoners argued in part that the claims against Warden Allen are not redundant “because the Secretary and the Warden ‘have independent and discreet obligations under Florida law with respect to carrying out executions.’” The Court agreed that the Prisoners’ “allegations highlight each Defendant’s different responsibilities under Florida law” and, therefore, denied dismissal on this basis.
The State further argued that any argument under the Fourteenth Amendment must be dismissed as immaterial. The Prisoners responded “that they do not raise a separate Fourteenth Amendment due process claim” but, rather, “incorporate the Fourteenth Amendment to apply their Eighth Amendment claim” to the State. The Court denied the State’s argument on this issue based on the Prisoners’ representations.
The State has until July 11 to respond to the Complaints.
The full Order can be downloaded here.
TFDP Prior Coverage
Citations omitted.