No. ______

IN THE Supreme Court of the United States

ANTHONY BOYD, Petitioner,

v.

JEFFERSON DUNN, Commissioner, Alabama Department of Corrections, et al., Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOHN C. LA LIBERTE* MATTHEW C. MOSCHELLA SHERIN AND LODGEN LLP 101 Federal Street Boston, Massachusetts 02110 [email protected] [email protected] (617) 646-2000

*Counsel of Record October 19, 2017

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS QUESTIONS PRESENTED (CAPITAL CASE)

1. Do the Eleventh Circuit and the District Court’s decisions conflict with Supreme Court precedent set forth in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008) and Glossip v. Gross, 135 S. Ct. 2726, reh’g denied, 136 S. Ct. 20, 192 (2015)?

2. Did the Eleventh Circuit and the District Court erroneously dismiss Mr. Boyd’s complaint by concluding that he did not satisfy the standard for alleging an alternative method of execution set forth in Glossip?

3. Do the conclusions reached by the Eleventh Circuit, the District Court, and the majority in Arthur violate the Supremacy Clause?

4. Did the Eleventh Circuit, the District Court, and the Arthur majority incorrectly determine that an inmate must establish both lethal injection and electrocution are per se unconstitutional?

5. Did the District Court err by not granting Mr. Boyd leave to file an amended complaint?

i PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT

Counsel certifies that the following have an interest in the outcome of this case:

(i) Boyd, Anthony – Appellant/Plaintiff;

(ii) Davenport, Carter – Warden of Holman Correctional Facility, Alabama Department of Corrections;

(iii) Dunn, Jefferson – Appellee, Commissioner of the Alabama Department of Corrections.

(iv) Myers, Walter – Appellee, Former Warden of Holman Correctional Facility, Alabama Department of Corrections;

(v) Marshall, Steve – Appellee, Attorney General of Alabama;

(vi) Strange, Luther – Appellee, Former Attorney General of Alabama;

Counsel certifies that the following corporations may have an interest in the outcome of this case:

None. JOHN C. LA LIBERTE MATTHEW C. MOSCHELLA SHERIN AND LODGEN LLP 101 Federal Street Boston, Massachusetts 02110 [email protected] [email protected] (617) 646-2000

ii TABLE OF CONTENTS

QUESTIONS PRESENTED ...... i

PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT ...... ii

TABLE OF AUTHORITIES ...... vii

OPINIONS BELOW ...... 1

JURISDICTION ...... 1

CONSTITUTIONAL PROVISIONS INVOLVED ...... 1

STATEMENT OF THE CASE ...... 3

A. State Court Proceedings ...... 3

B. Alabama’s Method of Execution ...... 4

C. The District Court’s Judgment ...... 5

D. The Eleventh Circuit’s Opinion...... 5

REASONS FOR GRANTING THE PETITION ...... 6

I. THE ELEVENTH CIRCUIT ERRED IN CONCLUDING THAT MR. BOYD DID NOT SATISFY THE GLOSSIP STANDARD ...... 7

iii A. The Panel’s Conclusion That The Alternative Method Must Be Currently Permitted By State Law Was Erroneous ...... 7

B. Alabama’s Death Penalty Statute Permits The Use of Hanging Or The Firing Squad As Alternative Methods ...... 10

II. THE CONCLUSIONS REACHED BY THE PANEL AND THE ARTHUR MAJORITY VIOLATES THE SUPREMACY CLAUSE AND CREATED CONFUSION AMONG THE CIRCUIT COURTS...... 11

III. THE PANEL, AND THE ARTHUR MAJORITY, INCORRECTLY DETERMINED THAT AN INMATE MUST ESTABLISH THAT BOTH LETHAL INJECTION AND ELECTROCUTION ARE PER SE UNCONSTITUTIONAL ...... 15

IV. THE DECISION OF THE PANEL, AND THE ARTHUR MAJORITY, TERMINATES THE NECESSARY DIALOGUE SURROUNDING METHODS OF EXECUTION AND THEIR EVOLUTION ...... 17

iv V. THE PANEL ERRED IN DETERMINING THAT MR. BOYD’S COMPLAINT DID NOT SATISFY THE PLEADING REQUIREMENTS ...... 18

VI. THE DISTRICT COURT AND THE ELEVENTH CIRCUIT ERRED BY NOT GRANTING MR. BOYD LEAVE TO FILE AN AMENDED COMPLAINT TO PLEAD AN ALTERNATE INJECTION PROTOCOL ...... 21

CONCLUSION ...... 22

APPENDIX: Appendix A - Judgment from the United States Court of Appeals for the Eleventh Circuit, dated May 9, 2017 ...... 1a

Appendix B - Decision of the United States Court of Appeals for the Eleventh Circuit, dated May 9, 2017 ...... 5a

Appendix C - Final Judgment of the United States District Court Northern District of Alabama Middle Division, dated October 7, 2015 ...... 59a

Appendix D - Memorandum and Order of the United States District Court Northern District of Alabama Eastern Division, dated October 7, 2015 ...... 65a

Appendix E - U.S. Const. Amend. VIII ...... 81a

v Appendix F - 42 U.S.C. § 1983 ...... 82a

Appendix G - Ala. Code § 15-18-82.1 ...... 83a

Appendix H - Amended Complaint, dated December 1, 2014 ...... 86a

vi TABLE OF AUTHORITIES

CASES:

Arthur v. Comm’r. Ala. Dept. of Corrs., 840 F.3d 1268 (11th Cir. 2015), cert. denied sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017), reh’g denied, (U.S. Apr. 24, 2017) ...... passim

Arthur v. Dunn, 137 S. Ct. 725 (2017), reh’g denied, (U.S. Apr. 24, 2017) ...... passim

Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008) ... i, 6, 7, 19

Boyd v. Alabama, 525 U.S. 968 (1998) ...... 4

Boyd v. State, 715 So.2d 825 (Ala. Crim. App. 1997) ...... 3

Boyd v. Walter Myers, et al., Case No. 2:14-CV-1017-WKW, 2015 WL 5852948 (M.D. Ala. Oct. 7, 2015) ...... 1

Boyd v. Warden, Holman Corr. Facility, No. 15-14971, 2017 WL 1856071 (11th Cir. May 9, 2017) ...... 5, 7, 13

Boyd v. Warden, Holman, CF, et al., 856 F.3d 853 (11th Cir. 2017) .. 1, 18, 19, 20, 21

vii Ex parte Boyd, 715 So.2d 852 (Ala. 1998) ...... 3

Glossip v. Gross, 135 S. Ct. 2726, reh’g denied, 136 S. Ct. 20, 192 (2015) ...... passim

Grayson v. Warden, et al., 869 F.3d 1204 (11th Cir. 2017) ...... 21

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ...... 11-12

Wilkerson v. Utah, 99 U.S. 130 (1878) ...... 10

CONSTITUTIONAL PROVISIONS:

U.S. Const. Amend. VIII ...... passim

STATUTES:

28 U.S.C. § 1254(1) ...... 1 42 U.S.C. § 1983 ...... 1, 4

Ala. Code § 15-18-82.1 ...... 2, 10 Ala. Code § 15-18-82.1 (a) ...... 2, 9 Ala. Code § 15-18-82.1(c) ...... 2, 10 Ala. Code § 15–18–82.1(h) ...... 3

RULES:

Fed. R. Civ. P. 12(b)(6) ...... 6

viii OPINIONS BELOW

The Eleventh Circuit’s Order denying Mr. Boyd’s petition for rehearing is attached in the accompanying Appendix (“App.”) at 1a. The Eleventh Circuit’s Opinion affirming the State of Alabama’s motion to dismiss is reported at Boyd v. Warden, Holman, CF, et al., 856 F.3d 853 (11th Cir. 2017), and is attached at App. 5a. The United States District Court for the Northern District of Alabama’s decision granting the State of Alabama’s motion to dismiss, Boyd v. Walter Myers, et al., Case No. 2:14- CV-1017-WKW, 2015 WL 5852948 (M.D. Ala. Oct. 7, 2015), is attached at App. 59a.

JURISDICTION

The Court of Appeals entered its decision on May 9, 2017, and denied Boyd’s timely filed petition for rehearing on August 3, 2017. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute . . . subjects, or causes to be subjected any citizens of the United

1 states . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . [.]

Ala. Code § 15-18-82.1 provides in pertinent part:

(a) A death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution.

(c) If electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court under the Constitution of Alabama of 1901, or held to be unconstitutional by the United States Supreme Court under the United States Constitution, or if the United States Supreme Court declines to review any judgment holding a method of execution to be unconstitutional under the United States Constitution made by the Alabama Supreme Court or the United States Court of Appeals that has jurisdiction over Alabama, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution.

2 (h) No sentence of death shall be reduced as a result of a determination that a method of execution is declared unconstitutional under the Constitution of Alabama of 1901, or the Constitution of the United States. In any case in which an execution method is declared unconstitutional, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method of execution.

STATEMENT OF THE CASE

A. State Court Proceedings

Mr. Boyd was convicted of capital murder on March 16, 1995 in the Talladega County Circuit Court (the “Trial Court”), for the intentional murder during a kidnapping of Gregory Huguley. Boyd v. State, 715 So.2d 825, 831 (Ala. Crim. App. 1997). On that same day, the jury returned a 10-2 advisory verdict recommending imposition of the death penalty. Id. at 832. On May 19, 1995, the Talladega County Circuit Judge sentenced Mr. Boyd to death.

On January 17, 1997, the Alabama Court of Criminal Appeals affirmed Mr. Boyd’s conviction and sentence. Id. On March 13, 1998, the Alabama Supreme Court affirmed Mr. Boyd’s conviction and sentence. Ex parte Boyd, 715 So.2d 852 (Ala. 1998). Mr. Boyd timely filed a petition for writ of certiorari to the United States Supreme Court on August 20,

3 1998. The United States Supreme Court denied Mr. Boyd’s petition for writ of certiorari on November 2, 1998. Boyd v. Alabama, 525 U.S. 968 (1998).

B. Alabama’s Method of Execution

On September 10, 2014, Alabama adopted a new lethal injection protocol which substantially changed the way Alabama proposed to execute prisoners, including Mr. Boyd. For the first time, Alabama substituted Midazolam, a benzodiazepine, rather than a barbiturate, as the first drug in its three-drug protocol. The following day, Alabama filed motions in the Alabama Supreme Court to set execution dates for nine inmates, including Mr. Boyd. Mr. Boyd then brought an action in United States District Court for the Middle District of Alabama pursuant to 42 U.S.C. § 1983 (the “Action”).

Mr. Boyd’s Amended Complaint describes with specificity why Midazolam cannot reliably render inmates unconscious and insensate to pain, exposing them to a serious likelihood of substantial pain and suffering during execution in violation of the Eighth Amendment. For example, the Complaint alleged that Midazolam is not an anesthetic, is not likely to produce unconsciousness, and will not render Mr. Boyd insensate to pain. (App. at 096a; Am. Compl. ¶ 45). Accordingly, the use of Midazolam creates a substantial risk that he will suffer serious harm upon administration of the painful second and third drugs. (App. at 095a; Am. Compl. ¶ 41).

Mr. Boyd proposed two constitutionally permissible alternative methods of execution – firing

4 squad and hanging – and pleaded that these methods were known, available, and readily implementable, and would reduce the substantial risk of severe pain posed by Alabama’s current protocol. The allegations made to the District Court and reviewed by the Eleventh Circuit panel therefore sufficiently proved that Mr. Boyd’s suggested execution methods are constitutional.

C. The District Court’s Judgment

The District Court granted the State’s motion to dismiss, with prejudice, on October 7, 2015 and denied Mr. Boyd’s motion for leave to file a second amended complaint.

D. The Eleventh Circuit’s Opinion

Mr. Boyd filed a notice of appeal on November 6, 2015. On September 14, 2016, a three-judge panel of the Eleventh Circuit Court of Appeals (Tjoflat, Marcus and Wilson) heard argument on Mr. Boyd’s appeal. On May 9, 2017, the Eleventh Circuit Court of Appeals panel upheld the District Court’s grant of Alabama’s motion to dismiss. Boyd v. Warden, Holman Corr. Facility, No. 15-14971, 856 F.3d 853 (11th Cir. 2017). Judge Marcus wrote the majority opinion, which was joined by Judge Tjoflat. Judge Wilson wrote separately to concur in the result only, stating that, but for Arthur I’s precedential effect, he would reverse the dismissal of Boyd’s method of execution and due process claims, believing Arthur to be wrongly decided.

5 Mr. Boyd timely filed a Petition for Rehearing En Banc on or about May 30, 2017. On August 3, 2017, the Eleventh Circuit denied Mr. Boyd’s Petition for Rehearing En Banc and ordered that the opinion issued on May 9, 2017 be entered as the judgment of the Court. (App. 001a).

Mr. Boyd timely filed this petition for certiorari on or about October 19, 2017.

REASONS FOR GRANTING THE PETITION

Mr. Boyd’s petition presents a unique opportunity to rectify an egregious misapplication of this Court’s prior decision in Glossip v. Gross, 135 S. Ct. 2726 reh’g denied, 136 S. Ct. 20, 192 (2015). Unlike Arthur v. Comm’r. Ala. Dept. of Corrs., 840 F.3d 1268 (11th Cir. 2015) (“Arthur I”), cert. denied sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017), reh’g denied, (U.S. Apr. 24, 2017), which addressed similar claims under the heightened pleading standard applicable to stays of execution, this petition presents the Court with an opportunity to clarify how Courts should interpret Glossip and Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008) in the context of Fed. R. Civ. P. 12(b)(6). The Court should take advantage of the particular opportunity that this petition presents, and end the perverse misapplication of federal law, recognized by two Justices of this Court even under the heightened standard applicable in Arthur I. See Arthur v. Dunn, 137 S. Ct. 725, 729 (2017), (“Arthur II”) (Sotormayor, J. dissenting) reh’g denied, (U.S. Apr. 24, 2017).

6 I. THE ELEVENTH CIRCUIT ERRED IN CONCLUDING THAT MR. BOYD DID NOT SATISFY THE GLOSSIP STANDARD

An inmate challenging a method of execution must establish that “the method presents a risk that is ‘sure or very likely to cause serious illness and needless suffering,’ and give[s] rise to ‘sufficiently imminent dangers.’” Glossip v. Gross, 135 S. Ct. 2726, 2737, reh’g denied, 136 S. Ct. 20, 192 (2015) (internal citations omitted, emphasis in original).1 “[P]risoners must [also] identify an alternative that is feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” Id. (quoting Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008)). Mr. Boyd satisfied this standard by proposing hanging and the firing squad as alternative execution methods. The Panel’s conclusion to the contrary was erroneous and violated the Supreme Court’s mandate in Glossip.

A. The Panel’s Conclusion That The Alternative Method Must Be Currently Permitted By State Law Was Erroneous

Glossip does not suggest, much less require, that such alternative method be expressly sanctioned by the applicable state’s law at the time it is proffered by an inmate to be considered

1 As the Panel expressly confirmed, “[t]he appellees do not dispute that Boyd has alleged sufficient facts to satisfy this first element of his Eighth Amendment claim. The sole dispute on appeal concerns the second element identified by the Supreme Court in Baze and Glossip.” Boyd v. Warden, Holman Corr. Facility, No. 15-14971, 2017 WL 1856071, at *7 (11th Cir. May 9, 2017).

7 “feasible” or “readily implemented.” By finding that a condemned prisoner cannot plead an alternative method of execution if that method is not already expressly “permitted by statute” in the relevant state, the Panel misconstrued Glossip and its intent. The judgment should be reversed and the case remanded. Under the Panel’s conclusion, the State could amend its death penalty statute to require an otherwise unconstitutional method of execution and avoid Eighth Amendment scrutiny by allowing for no alternative method. As Justice Sotomayor stated in her Arthur II Dissent:

“the Court did not mention—or even imply—that a State must authorize the alternative by statute. To the contrary, Baze held that ‘[i]f a State refuses to adopt such an alternative in the face of these documented advantages,’ its ‘refusal to change its method can be viewed as ‘cruel and unusual’ under the Eighth Amendment.’” Id. (emphasis in original). The decision below turns this language on its head, holding that if the State refuses to adopt the alternative legislatively, the inquiry ends. That is an alarming misreading of Baze.” Arthur v. Dunn, 137 S. Ct. 725, 729 (2017), (“Arthur II”) (Sotormayor, J. dissenting) reh’g denied, (U.S. Apr. 24, 2017).

Denying plaintiffs the opportunity to plead an alternative method of execution that is not expressly permitted by state law violates the Eighth Amendment. Under the Eleventh Circuit’s interpretation of Glossip, any state could insulate its

8 method of execution from constitutional scrutiny by the simple task of specifying only a single method of execution with no alternatives. For example, Alabama currently provides that its primary method of execution is “lethal injection,” Ala. Code § 15-18- 82.1(a), but it could amend its death penalty statute to mandate its current three-drug protocol using midazolam as the only permissible method of execution. In such case, the Panel’s conclusion would prevent an inmate from challenging this method of execution because no other method would be “permitted by statute.” To take an extreme example, if Alabama were to pass a law providing for burning at the stake as the exclusive method of execution without an alternative method, condemned prisoners would be unable to challenge that method under the Panel’s decision. Such a result cannot be, and is not, the law. See Glossip, 135 S. Ct. at 2793-94 (Sotomayor, J., dissenting).

Even where, as here, a plaintiff could plead that a state’s protocol would subject him to “intolerable pain and suffering” and that other methods present a “substantially lower risk of pain and suffering,” the added “permitted by statute” requirement would bar any relief. As Justice Sotomayor stated, “under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method. This cannot be right.” 137 S. Ct. at 729.

9 B. Alabama’s Death Penalty Statute Permits The Use of Hanging Or The Firing Squad As Alternative Methods

Even if Glossip did require an alternative method of execution to be expressly “permitted by statute,” Alabama’s death penalty statute currently permits the firing squad and hanging as alternative methods. By rejecting the firing squad and hanging, the Panel did not give effect to the full text of Ala. Code § 15-18-82.1, which states:

If electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court under the Constitution of Alabama of 1901, or held to be unconstitutional by the United States Supreme Court under the United States Constitution . . . all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution. (Emphasis added.)

As the plain language of § 15-18-82.1 makes clear, “any constitutional method of execution” can be used as an alternative if the statutory method is found unconstitutional. Ala. Code § 15-18-82.1(c) (emphasis added). Both the firing squad and hanging are constitutional methods of execution, see Wilkerson v. Utah, 99 U.S. 130, 134-35 (1878), and were constitutional methods of execution when Alabama’s legislature passed Ala. Code § 15-18- 82.1(c) in 2002. See, e.g., Arthur v. Comm’r. Ala. Dept. of Corrs., 840 F.3d 1268, 1322 (11th Cir. 2015) (“Arthur I”) (Wilson, J., dissenting), cert. denied sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017), reh’g

10 denied, (U.S. Apr. 24, 2017). Accordingly, if a court were to conclude that lethal injection is unconstitutional, Alabama’s statute is no barrier to the “availability” of another constitutional method of execution.

As Justice Sotomayor stated in the Arthur II dissent, “the Alabama statute unambiguously reads as a codification of Glossip. If either of the specified methods—lethal injection or electrocution—is declared unconstitutional, the statute authorizes the State to execute prisoners by ‘any constitutional method of execution.’ (emphasis added). The state statute thus permits exactly what the Court required in Glossip—if a condemned prisoner can prove that the lethal-injection protocol presents an unconstitutional risk of needless suffering, he may propose an alternative, constitutional means of execution, which may include the firing squad.” 137 S.Ct. at 730, n. 3.

II. THE CONCLUSIONS REACHED BY THE PANEL AND THE ARTHUR MAJORITY VIOLATES THE SUPREMACY CLAUSE AND CREATED CONFUSION AMONG THE CIRCUIT COURTS

As stated in the Arthur I Dissent, because the Arthur Majority, and the Panel in this case, permit a state to insulate its death penalty statute from review, it “flouts the Supremacy Clause” and is improper because “states cannot override the Constitution’s protections.” 840 F.3d 1268, 1331 (Wilson, J., dissenting) (quoting Reynolds v. Sims, 377 U.S. 533, 582–84, 84 S.Ct. 1362, 1392–93, 12

11 L.Ed.2d 506 (1964)). As the Arthur I Dissent also stated:

The Majority’s state-law determination however does not merely allow states to constrict prisoners’ Eighth Amendment rights—it permits states to abrogate such rights. Moving forward, a state can pass legislation requiring all executions to be performed with a certain gas chamber protocol or a certain electrocution protocol, and since the legislation would authorize only those two particular protocols, no other protocol or method of execution would be feasible and readily implemented. As a result, even in the face of evidence that both protocols are excruciatingly painful, condemned prisoners could never obtain relief from the protocols— it would be impossible to meet Baze and Glossip’s “execution alternative” requirement, and Baze and Glossip provide the only avenue for method-of- execution relief. The state’s legislation would thus nullify prisoners’ right to a humane execution.

Although this example is merely a hypothetical, it underscores the troubling constitutional issues that arise from the Majority’s decision. The decision allows state law to trump the Eighth Amendment’s basic guarantee against cruel and unusual punishment. Contra U.S. Const. art. VI, cl. 2. Arthur I, 840 F.3d 1330–31.

12 Further, as the Concurrence summarized, there have been several developments since the date that the Arthur Majority incorrectly decided that case which further confirm that it was wrongly decided, and which have caused confusion among the circuits in deciding method of execution claims. Specifically, “[i]n the short time since Arthur was decided, two Supreme Court justices have expressed reservations about the holding; a court of appeals judge has penned a concurrence that highlights the tension between the holding and the Eighth Amendment; a district court judge has disagreed with the holding; and at least one circuit court has departed from the holding . . . .” Boyd v. Warden, Holman Corr. Facility, No. 15-14971, 2017 WL 1856071, at *15–17 (11th Cir. May 9, 2017). Indeed:

 “Justice Sotomayor, joined by Justice Breyer, dissented to the denial of certiorari in Arthur, and . . . voiced serious concerns about this court’s holding in the case. Our decision in Arthur, the Justices found, ‘contradicts the very decisions it purports to follow—Baze and Glossip’; violates the Supremacy Clause ‘by conditioning federal constitutional rights on the operation of state statutes’; and risks inconsistent application of the Constitution since, under the decision, whether a prisoner can obtain method-of-execution relief ‘depends not on the Constitution but on vagaries of state law.’ See Arthur II, 137 S.Ct. at 729–30. What’s more, the Justices found that the Arthur holding jeopardizes the ‘ongoing national conversation . . . around the methods of execution the [Eighth Amendment] tolerates.’ Id. at 731. That

13 constitutionally required conversation takes place through a dialectic exchange between courts and legislatures in which courts examine evolving standards of decency and apply those standards to state-execution practices. See id. at 731– 33. The Justices determined that Arthur, by finding that state legislation can thwart method-of-execution claims, empowers states to ‘silence’ that conversation. See id.” Boyd, 956 F.3d at 878-79 (Wilson, J. concurring).

 “Shortly after certiorari was denied in Arthur, Judge Stranch of the Sixth Circuit Court of Appeals cited Justice Sotomayor and Justice Breyer’s dissent in a concurrence that calls attention to the tension between our holding in Arthur and the Eighth Amendment. See In re Ohio Execution Protocol, 853 F.3d 822, 846–47 (6th Cir.) (Stranch, J., concurring), vacated for reh’g en banc, ––– F.3d ––––, 2017 WL 1457946 (6th Cir. Apr. 25 2017). The concurrence highlights the constitutional dilemma posed by a holding like Arthur’s that allows states to muzzle the national conversation about the death penalty.” Boyd, 956 F.3d at 879.

 “Following Judge Stranch’s concurrence, Judge Baker of the District Court for the Eastern District of Arkansas issued an order further calling into question our court’s holding in Arthur. In granting a preliminary injunction to halt a series of Arkansas executions, Judge Baker

14 disagreed with the holding. McGehee v. Hutchinson, No. 17-00179, slip op. at 80, 2017 WL 1399554 (E.D. Ark.), vacated on other grounds by McGehee v. Hutchinson (McGehee II), 854 F.3d 488 (8th Cir.) (en banc), cert. denied, 581 U.S. ––––, 137 S.Ct. 1275, ––– L.Ed.2d –––– (2017). She found ‘that the Eleventh Circuit’s limitation [in Arthur] of alternative methods [of execution] to those presently permitted under state law finds no textual basis in Baze or Glossip.’ See id. Although the Eighth Circuit Court of Appeals, sitting en banc, vacated Judge Baker’s preliminary injunction, it agreed with Judge Baker’s departure from the Arthur holding: ‘[W]e disagree with the legal standard that the district court applied in determining whether alternative methods of execution are known and available. [However, w]e do not say that an alternative method must be authorized by statute or ready to use immediately. . . .’” Boyd, 956 F.3d at 979-80.

III. THE PANEL, AND THE ARTHUR MAJORITY, INCORRECTLY DETERMINED THAT AN INMATE MUST ESTABLISH THAT BOTH LETHAL INJECTION AND ELECTROCUTION ARE PER SE UNCONSTITUTIONAL

The Arthur I Dissent confirms that a prisoner need not show that electrocution and lethal injection are per se unconstitutional before invoking the firing squad or hanging. As the Dissent noted in Arthur I:

15 The Majority also erroneously determines that under § 15–18–82.1 Alabama can turn to the firing squad only if lethal injection or electrocution is declared per se unconstitutional. See Maj. Op. at 1316 (suggesting that Alabama would have authority to use the firing squad if a court struck down “as unconstitutional either electrocution or lethal injection”). And since no court has declared either method per se unconstitutional, the Majority finds that § 15–18–82.1 precludes Alabama from using the firing squad in this case. A proper textual analysis reveals that subsection (h) forecloses this reading of the statute.

As noted above, subsection (h) states: “In any case in which an execution method is declared unconstitutional, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method of execution.” Ala. Code § 15–18–82.1(h). At first glance, it is possible to read this sentence in a manner consistent with the Majority’s interpretation of § 15– 18–82.1. That is, the sentence could be interpreted as permitting Alabama to turn to an alternative method of execution, such as the firing squad, only if lethal injection or electrocution is declared per se unconstitutional. But because, as the Majority concludes, subsection (c) stands for that exact proposition, interpreting subsection (h)

16 to convey the same message violates an elementary rule of statutory interpretation—that we must give effect to each provision. See United States v. Butler, 297 U.S. 1, 65, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936) (“These words cannot be meaningless, else they would not have been used”). The correct interpretation of subsection (h)—and the only interpretation that avoids surplusage—is that, if the specific “execution method” in a “case” is declared unconstitutional, Alabama can resort to “any valid method of execution.” See Ala. Code § 15–18– 82.1(h).

Based on the plain language of § 15– 18–82.1, the statute permits Alabama to turn to the firing squad when its planned execution protocol for a particular prisoner is declared unconstitutional. Arthur I, 840 F.3d at 1326–27.

IV. THE DECISION OF THE PANEL, AND THE ARTHUR MAJORITY, TERMINATES THE NECESSARY DIALOGUE SURROUNDING METHODS OF EXECUTION AND THEIR EVOLUTION

As noted in the Concurrence, the dissent of two Justices in Arthur II, and Judge Stranch’s Sixth Circuit concurrence, “the Arthur holding jeopardizes the ‘ongoing national conversation . . . around the methods of execution the [Eighth Amendment]

17 tolerates.’” Boyd, 856 F.3d at 879 (citing Arthur II, 137 S. Ct. at 731). As the Arthur II Dissent further noted, “[t]hat constitutionally required conversation takes place through a dialectic exchange between courts and legislatures in which courts examine evolving standards of decency and apply those standards to state-execution practices.” Boyd, 856 F.3d at 879 (citing Arthur II, 137 S. Ct. at 731–33). Arthur, by finding that state legislation can thwart method-of-execution claims, empowers states to “silence” that conversation.” Boyd, 856 F.3d at 879.

V. THE PANEL ERRED IN DETERMINING THAT MR. BOYD’S COMPLAINT DID NOT SATISFY THE PLEADING REQUIREMENTS

The Panel’s conclusion that Mr. Boyd failed to satisfy the pleading requirements was also erroneous. Mr. Boyd alleged that:

Both Utah and Oklahoma use or could use the firing squad, which makes it a known alternative. Use of a firing squad based on an existing protocol from one of these states is “available” because there are no impediments to obtaining the required materials, as there may be for lethal injection drugs. [Alabama] h[as] represented that [certain alternative lethal injection drugs] are not “available,” and the same cannot be said for the materials required for a firing squad execution. Id.

18 As the Concurrence explained, “[i]f we set aside Arthur, these allegations—viewed through the lens of judicial experience, common sense, and the context surrounding death by firing squad—are sufficient to support a ‘reasonable inference’ that the firing squad satisfies the requirements of Baze and Glossip.” Boyd, 856 F.3d at 880 (citation omitted).

“Boyd’s allegations support a reasonable inference that the firing squad is feasible and readily implemented.” Id. at *17. As the Concurrence stated:

“[D]rawing on our judicial experience and common sense,” we know that the firing squad is a straightforward, well- known procedure that has been performed for centuries. We also know that the materials necessary for the firing squad—guns and bullets—are abundant. Finally, we know that Alabama has ready access to guns, bullets, and personnel who are trained in firearms because Alabama is a modern militarized state with a national guard, a department of corrections, and a police force.

Considering this context and taking Boyd’s allegations as true, the allegations support a reasonable inference that death by firing squad is “known and available,” which means the allegations support a reasonable inference that the firing squad is feasible and readily implemented. . . .

19 . . . Boyd’s allegations make plausible his claim that the firing squad is available to Alabama. . . . Given that Alabama, like Utah and Oklahoma, is a modern militarized state with the death penalty, that allegation is plausible. A conclusion to the contrary would strain credulity. Boyd, 856 F.3d at 881-82 (internal citations omitted).

The Concurrence also correctly noted that “Boyd’s allegations support a reasonable inference that the firing squad significantly reduces a substantial risk of severe pain.” Id. at 881. It further states that:

 “Boyd pleads that death by firing squad poses minimal risk of pain because it is a certain, speedy method of execution. Taking into account judicial experience and common sense, that allegation is plausible.”

 “The Supreme Court has remarked that “there is some reason to think that [the firing squad] is relatively quick and painless.” See Glossip, 135 S.Ct. at 2739 (internal quotation marks omitted); id. at 2797 (Sotomayor, J., dissenting) (“[F]rom a condemned inmate’s perspective, . . . [the] relatively painless violence [of death by firing squad] may be vastly preferable to an excruciatingly painful death hidden behind a veneer of [lethal injection drugs.]”).”

20  “Similarly, Judge Kozinski of the Ninth Circuit Court of Appeals has recognized that a firing-squad execution limits a prisoner’s risk of pain. See Wood, 759 F.3d at 1103 (Kozinski, J., dissenting from denial of rehearing en banc) (“The firing squad strikes me as the most promising [method of execution].... [L]arge-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time.”).”

Boyd, 856 F.3d at 882. Mr. Boyd’s allegations concerning the feasibility and implementation of hanging were similarly sufficiently detailed. For example, Mr. Boyd alleged that hanging is a viable method of execution in Delaware, New Hampshire, and Washington, and he could be executed using the existing protocol from one of these states, as there are no impediments to obtaining the required materials. Mr. Boyd’s allegations are more than sufficient to satisfy the pleading requirements.

VI. THE DISTRICT COURT AND THE ELEVENTH CIRCUIT ERRED BY NOT GRANTING MR. BOYD LEAVE TO FILE AN AMENDED COMPLAINT TO PLEAD AN ALTERNATE INJECTION PROTOCOL

Mr. Boyd should have been granted leave to further amend his complaint to allege an alternative lethal injection protocol, particularly in light of the Eleventh Circuit’s recent decision in Grayson v. Warden, et al., 869 F.3d 1204 (11th Cir. 2017).

21 CONCLUSION

For the reasons stated above, this Court should grant this Petition for Writ of Certiorari.

Respectfully submitted,

JOHN C. LA LIBERTE* MATTHEW C. MOSCHELLA SHERIN AND LODGEN LLP 101 Federal Street Boston, Massachusetts 02110 [email protected] [email protected] (617) 646-2000

*Counsel of Record

Dated: October 19, 2017

22

APPENDIX APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303 David J. Smith For rules and forms visit Clerk of Court www.ca11.uscourts.gov August 03, 2017 Debra P. Hackett U.S. District Court PO BOX 711 Montgomery, AL 36101-0711

Appeal Number: 15-14971-P Case Style: Anthony Boyd v. Warden, Holman CF, et al. District Court Docket No: 2:14-cv-01017-WKW The enclosed judgment is hereby issued as the mandate of this court. A copy of this letter, and the judgment form if noted above, but not a copy of the court’s decision, is also being forwarded to counsel and pro se parties. A copy of the court’s decision was previously forwarded to counsel and pro se parties on the date it was issued. Sincerely, DAVID J. SMITH, Clerk of Court Reply to: David L. Thomas Phone #: (404) 335-6171 Enclosure(s) MDT-1 Letter Issuing Mandate

1a UNITED STATES COURT OF APPEALS For the Eleventh Circuit

No. 15-14971

District Court Docket No. 2:14-cv-01017-WKW

ANTHONY BOYD, Plaintiff - Appellant, versus

WARDEN, HOLMAN CORRECTIONAL FACILITY, ATTORNEY GENERAL OF ALABAMA, JEFFERSON S. DUNN,

Defendants - Appellees.

Appeal from the United States District Court for the Middle District of Alabama

JUDGMENT

It is hereby ordered, adjudged, and decreed that the opinion issued on this date in this appeal is entered as the judgment of this Court.

Entered: May 09, 2017 For the Court: DAVID J. SMITH, Clerk of Court By: David L. Thomas ISSUED AS MANDATE 08/03/2017

2a UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

David J. Smith For rules and forms visit Clerk of Court www.ca11.uscourts.gov

May 09, 2017

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 15-14971-P Case Style: Anthony Boyd v. Warden, Holman CF, et al District Court Docket No: 2:14-cv-01017-WKW

This Court requires all counsel to file documents electronically using the Electronic Case Files (“ECF”) system, unless exempted for good cause. Enclosed is a copy of the court’s decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court’s mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk’s office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for

3a attorney’s fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1.

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or [email protected] for questions regarding CJA vouchers or the eVoucher system.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call David L. Thomas at (404) 335-6171.

Sincerely, DAVID J. SMITH, Clerk of Court

Reply to: David L. Thomas Phone #: 404-335-6161

OPIN-1 Ntc of Issuance of Opinion

4a APPENDIX B

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 15-14971

D.C. Docket No. 2:14-cv-01017-WKW

ANTHONY BOYD,

Plaintiff - Appellant, versus

WARDEN, HOLMAN CORRECTIONAL FACILITY, ATTORNEY GENERAL OF ALABAMA, JEFFERSON S. DUNN,

Defendants - Appellees.

Appeal from the United States District Court for the Middle District of Alabama

(May 9, 2017)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

5a MARCUS, Circuit Judge: It is by now clear in capital cases that a plaintiff seeking to challenge a state’s method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state’s planned method of execution. Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court’s dismissal of his federal civil rights lawsuit challenging the constitutionality of Alabama’s lethal injection protocol. Boyd filed this lawsuit pursuant to Section 1983, alleging, among other things, that Alabama’s new lethal injection protocol, which substituted midazolam hydrochloride for pentobarbital as the first of three drugs, violates his Eighth Amendment right to be free from cruel and unusual punishment. Notably, however, he did not allege that execution by a lethal injection protocol generally is unconstitutional. Currently, Alabama law provides inmates sentenced to death with a choice between two methods of execution: lethal injection or electrocution. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, however, Boyd alleged that Alabama should execute him by hanging or firing squad. The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd’s proposed alternative methods of execution -- firing squad and hanging -- are not authorized methods of execution under Alabama law

6a and, therefore, are neither feasible nor readily implementable by that state. It further held that Boyd’s remaining claims challenging Alabama’s execution protocol, the execution facilities, and the state’s decision to keep certain information about the protocol secret were time-barred by the statute of limitations. Finally, the district court ruled that amending these claims would be futile and dismissed Boyd’s complaint. We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain. The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution. But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain. Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad. We also agree that Boyd’s remaining claims were filed well beyond the two-year statute of limitations governing § 1983 claims in Alabama. Accordingly, we affirm. I. A. The facts of the kidnapping and murder that Boyd committed have been laid out by the Alabama Court of Criminal Appeals. See Boyd v. State, 715 So. 2d 825, 832 (Ala. Crim. App. 1997). On July 31, 1993, Boyd and three accomplices kidnapped Gregory Huguley, who owed them $200.00 for

7a cocaine they had given him several days earlier. Id. The four men forced Mr. Huguley into a van at gun- point and drove him to a park, making a stop at a gas station to purchase some gasoline in a plastic container. Id. They then made him lie down on a bench; bound his hands, mouth, and feet with duct tape; and then taped him to the bench, ignoring his repeated pleas for mercy and his promises to repay them. Id. One of the men, Shawn Ingram, doused Huguley in gasoline, leaving a two-foot trail of gasoline leading away from the bench where he was bound. Id. Ingram then lit the trail of gasoline that led to Huguley, causing him to catch fire. Id. The four men watched Huguley burn for ten to fifteen minutes, and as he burned, he rolled over a few feet. Id. Huguley died as a result of his injuries. Id. After trial in Talladega County, Alabama, a state jury convicted Boyd of murder made capital because it occurred during the course of a kidnapping in the first degree, and recommended by a vote of 10- 2 that a death sentence be imposed. Id. at 831–32. After conducting a separate sentencing hearing, the trial court followed the jury’s recommendation and sentenced Boyd to death by electrocution. Id. at 832. Boyd’s conviction and death sentence were affirmed on direct appeal, see id. at 852, aff’d sub nom. Ex parte Boyd, 715 So. 2d 852 (Ala. 1998), cert. denied, Boyd v. Alabama, 525 U.S. 968 (1998), and his Rule 32 petition for state post-conviction relief was denied, see Boyd v. State, 913 So. 2d 1113 (Ala. Crim. App. 2003), cert. denied, No. 1030438 (Ala. May 27, 2005). Boyd then sought federal habeas corpus relief in the United States District Court for the Northern District of Alabama. The district court denied his habeas petition; we affirmed, see Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320 (11th Cir. 2012);

8a and the United States Supreme Court denied certiorari review, see Boyd v. Thomas, 133 S.Ct. 2857 (2013). B. When Boyd was sentenced to death in 1995, Alabama executed inmates by electrocution. See McNair v. Allen, 515 F.3d 1168, 1171 (11th Cir. 2008). On July 31, 2002, however, the Alabama legislature changed the state’s method of execution to “lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution.” Ala. Code § 15-18-82.1(a). The legislature allowed inmates already under a sentence of death at that time a 30-day window to choose electrocution as their method of execution, after which time they would be deemed to have waived the right to request a method other than lethal injection. Id. § 15-18-82.1(b). The method-of-execution statute further provides that “[i]f electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court under the Constitution of Alabama of 1901, or held to be unconstitutional by the United States Supreme Court under the United States Constitution, or if the United States Supreme Court declines to review any judgment holding a method of execution to be unconstitutional under the United States Constitution made by the Alabama Supreme Court or the United States Court of Appeals that has jurisdiction over Alabama, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution.” Id. § 15-18-82.1(c). The statute does not prescribe any particular method of lethal injection; the legislature left it to the Alabama Department of Corrections (“ADOC”) to devise the policies and procedures governing lethal injection executions, and

9a exempted the ADOC from the Alabama Administrative Procedure Act in exercising that authority. Id. § 15-18-82.1(g). The ADOC has used a three-drug lethal injection protocol since it began performing executions by lethal injection in 2002. See Brooks v. Warden, 810 F.3d 812, 823 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, 136 S. Ct. 979 (2016). Each drug in a three-drug protocol is intended to serve a specific purpose: the first drug should render the inmate unconscious to “ensure[] that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs”; the second drug is a paralytic agent that “inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration”; and the third drug “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Baze v. Rees, 553 U.S. 35, 44 (2008) (plurality op.). The third drug in the ADOC protocol has always been potassium chloride, and the second drug has always been a paralytic agent -- either pancuronium bromide or rocuronium bromide. Brooks, 810 F.3d at 823. However, the ADOC has changed the first drug in the protocol twice: From 2002 until April 2011, it used sodium thiopental as the first drug in the three-drug sequence; from April 2011 until September 10, 2014, it used pentobarbital as the first drug; and from September 11, 2014, until the present, it has used midazolam hydrochloride as the first drug. Id. C. Boyd’s present suit is one of several challenges brought by Alabama death row inmates pursuant to 42 U.S.C. § 1983 in the Middle District of Alabama, alleging that Alabama’s current lethal injection

10a protocol is unconstitutional. On October 2, 2014, less than a month after the ADOC substituted midazolam for pentobarbital as the first drug in the lethal injection protocol, Boyd brought suit in that court and, in December 2014, filed an amended complaint that alleged the following facts. Boyd asserts that the ADOC’s switch from pentobarbital to midazolam renders it substantially more likely that he will suffer unnecessarily during the execution. Unlike pentobarbital, Boyd says, midazolam is “wholly unsuitable as the first drug in a three-drug lethal injection protocol because it will not render [him] unconscious, numb, and insensate from the administration of the painful second and third drugs, rocuronium bromide and potassium chloride.” Boyd also contends that the ADOC’s manner of determining whether inmates are rendered insensate to pain by the first drug -- the “pinch test” -- is “wholly ineffective” because, even if an inmate cannot feel a pinch, he may be able to feel the far more painful sensations caused by asphyxiation. Boyd further alleges that the ADOC has kept important information concerning its lethal injection protocol secret, which prevents inmates from seeking effective judicial review of the ADOC’s protocol. He says that the ADOC does not ensure that the lethal injection personnel are sufficiently trained to administer anesthesia during the execution, and that the execution team “is wholly unprepared and inadequately trained as to constitutional execution procedures.” Finally, Boyd alleges that the ADOC’s execution facilities are deficient because the ADOC may not have the equipment necessary to achieve and maintain venous access in the event of a complication, and the physical condition of the execution facilities is “highly questionable.”

11a The amended complaint asserted seven claims for relief: (I) Alabama’s method of execution is cruel and unusual in violation of the Eighth Amendment because midazolam will not render him sufficiently insensate to the pain caused by the second and third drugs in the protocol; (II) Alabama’s execution squad personnel are inadequately trained and, therefore, there is a substantial risk that they will err during Boyd’s execution and cause him unnecessary pain and suffering, in violation of his Eighth Amendment rights; (III) Alabama’s execution facility is deficient, creating a substantial risk of maladministration of Boyd’s execution in violation of his Eighth Amendment rights; (IV) the Alabama Department of Corrections (“ADOC”) has adopted and revised processes and procedures for carrying out executions in secret, thus preventing Boyd from effectively being able to comment on the new procedures or challenge them in court, in violation of his Fourteenth Amendment due process rights; (V) during his execution, ADOC employees will fail to perform the “pinch test” to ensure that the midazolam renders Boyd unconscious as required by Alabama’s lethal injection protocol, which will violate his right to equal protection of the laws under the Fourteenth Amendment; (VI) a claim for declaratory relief that Alabama’s execution protocol is unlawful; and (VII) a claim for injunctive relief enjoining Alabama from executing Boyd or other inmates until the constitutional defects he identified are remedied. D. The defendants moved to dismiss Boyd’s amended complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). In March 2015, the district court entered orders staying Boyd’s suit, as well as the six other § 1983 lethal injection cases

12a pending before it, until after the Supreme Court issued its decision in Glossip v. Gross, 135 S. Ct. 2726 (2015), a case concerning the constitutionality of Oklahoma’s lethal injection protocol. Pursuant to the stay order, the district court denied the defendants’ motion to dismiss, affording the defendants leave to refile the motion after the Supreme Court decided Glossip. On June 29, 2015, the Supreme Court decided Glossip, holding that, in order to successfully challenge a method of execution, a plaintiff must plead and prove: (1) that the proposed execution method presents a risk that is “‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers,’” Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 50 (plurality op.)); and (2) that there is “an alternative [method of execution] that is ‘feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain,’” id. (alteration adopted) (quoting Baze, 553 U.S. at 52 (plurality op.)). Following the Supreme Court’s decision in Glossip, the defendants renewed their motion to dismiss Boyd’s amended complaint. During briefing on the renewed motion, Boyd sought leave to file a second amended complaint. The proposed amendation makes all of the same factual allegations contained in the first amended complaint, and includes additional allegations concerning Alabama’s execution team and potential alternative methods of execution that are available to Alabama. Regarding the execution team, Boyd claims that a member of the team was hospitalized in July 2015, and that in August 2015, two officers on the execution team abruptly quit the execution team. He also proposes two alternatives to Alabama’s current lethal injection

13a protocol: execution by firing squad or hanging. Boyd alleges that the legislatures in both Utah and Oklahoma have approved the firing squad as a method of execution, and that there are no impediments to Alabama obtaining the necessary materials for performing an execution by firing squad. Furthermore, firing squad executions have a good track record of “speed and certainty for the condemned.” Moreover, Boyd says, in the alternative, Alabama could execute him by hanging, which has been approved by state legislatures as an available method of execution in Delaware, New Hampshire, and Washington, and which poses a lesser risk of pain than he faces under Alabama’s current protocol. He alleges that, like these other states, the Alabama legislature is “fully capable of” approving either firing squad or hanging as a method of execution. Notably, Boyd did not propose an alternative drug cocktail that the state could use in his execution. On October 7, 2015, the district court granted the defendants’ renewed motion to dismiss and denied Boyd’s motion for leave to file a second amended complaint. The court first addressed Boyd’s motion for leave to file. It determined that the proposed second amended complaint failed to state an Eighth Amendment method-of-execution claim in Count I because it did not propose a feasible and readily available alternative method of execution, as it was plainly required to do under controlling Supreme Court law. The district court determined that Boyd’s proposed alternatives -- firing squad and hanging -- are neither feasible nor readily available for use in Alabama because they have not been approved for use as methods of execution by Alabama’s legislature. Moreover, the

14a court observed, Boyd’s allegations that execution by firing squad or hanging entail a lesser risk of pain than Alabama’s current lethal injection protocol “are nothing more than bare-bone legal conclusions unsupported by facts.” Therefore, the district court concluded, Count I of the proposed second amended complaint failed to state a method-of-execution claim and amending that claim would be futile. The court further determined that amending the remaining six claims also would be futile because the claims, even as amended, were barred by the statute of limitations. Relying on this Court’s controlling precedent in McNair v. Allen, 515 F.3d 1168 (11th Cir. 2008), and Powell v. Thomas, 643 F.3d 1300 (11th Cir. 2011), the district court observed that Boyd’s claims were subject to a two- year statute of limitations and accrued on July 31, 2002, when Boyd became subject to execution by lethal injection, unless there had been a “significant change” to Alabama’s lethal injection protocol that would restart the statute of limitations clock. The court observed that, unlike the method-of-execution challenge asserted in Count I, Counts II and III -- challenging the training of the execution squad personnel and adequacy of the facilities under the Eighth Amendment -- had nothing to do with the ADOC’s switch from pentobarbital to midazolam. And, the court said, nothing prevented Boyd from bringing these claims within two years after he became subject to death by electrocution. The district court similarly determined that Count IV, the due process challenge to the secrecy of Alabama’s lethal injection protocol, accrued when the legislature changed the method of execution in 2002 because the secrecy policy has remained unchanged since then. Moreover, the court said, Count IV also

15a failed to state a due process claim under our decision in Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1267 (11th Cir. 2014), which rejected a similar challenge to Georgia’s secrecy statute. The district court also found that Count V -- alleging that Boyd’s equal protection rights would be violated by the state’s failure to adequately perform the pinch test during his execution -- was time-barred because Boyd did not allege any facts to establish that the claim was timely, such as by identifying recent executions in which the state had failed to perform the pinch test. And Counts VI and VII, seeking declaratory and injunctive relief, were unnecessary and repetitive of the preceding claims. Thus, the district court concluded that the proposed amendments were futile. And because the operative amended complaint was entirely subsumed by the proposed second amended complaint, the district court granted the defendant’s motion to dismiss and entered final judgment in favor of the defendants. This timely appeal followed. II. We review a district court’s grant of a motion to dismiss with prejudice de novo, “accepting the [factual] allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008) (quotation omitted). Fed. R. Civ. P. 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

16a “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. A complaint need not contain “detailed factual allegations,” but must include enough facts “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (internal citation and footnote omitted). Moreover, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”). The Supreme Court has employed a “two-pronged approach” in applying the foregoing principles: first, a reviewing court should eliminate any allegations in the complaint that are merely legal conclusions; and second, where there are well-pleaded factual allegations, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. We generally review a district court’s decision to deny leave to amend for abuse of discretion, but review de novo an order denying leave to amend on the grounds of futility, because it is a conclusion of law that an amended complaint would necessarily fail. Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264 (11th Cir. 2011).

17a An amendment is considered futile when the claim, as amended, would still be subject to dismissal. See Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999). III. We proceed in two parts. First, we address Boyd’s Eighth Amendment method-of-execution claim asserted in Count I, challenging the state’s new midazolam protocol. Then, we address whether Boyd’s remaining claims are time-barred or otherwise fail as a matter of law. Like the district court, we analyze the allegations in Boyd’s proposed Second Amended Complaint because, if those allegations are insufficient as a matter of law, then so are the less thorough allegations contained in the operative Amended Complaint. A. 1. For state prisoners, “[f]ederal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004). The federal habeas statute allows “a person in custody pursuant to the judgment of a State court” to seek relief in federal court “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), imposes meaningful procedural requirements on state prisoners seeking federal review of their convictions, 28 U.S.C. § 2254(b), (c), and places restrictions on a federal court’s power to

18a grant habeas relief, 28 U.S.C. § 2254(d). Section 1983 is a broad remedial statute that authorizes suit against any person who, under color of state law, “subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Read literally, § 1983 could apply to all claims alleging constitutional violations by inmates in state custody. However, habeas and § 1983 are “mutually exclusive” avenues for relief, and the line of demarcation between them “is based on the effect of the claim on the inmate’s conviction and/or sentence.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006). “Simply put, if the relief sought by the inmate would either invalidate his conviction or sentence or change the nature or duration of his sentence, the inmate’s claim must be raised in a § 2254 habeas petition, not a § 1983 civil rights action.” Id. “Although method-of-execution challenges brought under § 1983 are not governed by AEDPA, they do fall at the margins of habeas, and therefore implicate many of the same comity concerns AEDPA was designed to address.” McNair v. Allen, 515 F.3d 1168, 1175 (11th Cir. 2008) (internal citation and quotation omitted). In two cases, the Supreme Court has permitted inmates to bring method-of-execution challenges brought pursuant to § 1983. See Nelson v. Campbell, 541 U.S. 637, 643 (2004); Hill v. McDonough, 547 U.S. 573, 580 (2006). In both cases, the inmates challenged particular facets of the state’s intended method of lethal injection -- in Nelson, 541 U.S. at 641–42, the plaintiff challenged the use of a painful “cut-down” procedure to gain vein access, and in Hill, 547 U.S. at 578, it was the adequacy of the

19a first-drug in the protocol -- and conceded that the state could constitutionally execute them using other methods of lethal injection that were authorized by state law, see Nelson, 541 U.S. at 645–46; Hill, 547 U.S. at 581. Following Nelson and Hill, we have entertained method-of-execution challenges to specific aspects of a state’s lethal injection protocol pursuant to § 1983. See, e.g., Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d 1288, 1295 (11th Cir.), cert. denied sub nom. Jones v. Bryson, 136 S. Ct. 998 (2016); Brooks v. Warden, 810 F.3d 812, 819 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, 136 S. Ct. 979 (2016); Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir. 2016), cert denied sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017). 2. The Eighth Amendment to the United States Constitution provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibition against cruel and unusual punishments protects against punishments that are “incompatible with the evolving standards of decency that mark the progress of a maturing society” or that involve the “unnecessary and wanton infliction of pain” on a prisoner. Estelle v. Gamble, 429 U.S. 97, 102, 104 (1976) (quotation omitted). A state’s method of executing condemned inmates must comport with these basic principles, but the Supreme Court “has never invalidated a State’s chosen procedure of carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip, 135 S. Ct. at 2732 (quotation mark omitted) (quoting Baze, 553 U.S. at 48 (plurality op.)).

20a The Supreme Court’s decisions in cases challenging methods of execution have been “animated in part by the recognition that because it is settled that capital punishment is constitutional, ‘it necessarily follows that there must be a constitutional means of carrying it out.’” Id. (alterations adopted) (quoting Baze, 553 U.S. at 47 (plurality op.)). Debates over methods of execution involve complex, ever-evolving scientific and medical questions, and, therefore, method-of-execution challenges pose a risk of “embroil[ing] the courts in ongoing scientific controversies beyond their expertise[ and] . . . substantially intrud[ing] on the role of the state legislatures in implementing their execution procedures -- a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death.” Baze, 553 U.S. at 51 (plurality op.). To mitigate this risk and to protect the “State’s legitimate interest in carrying out a sentence of death in a timely manner,” id. at 61, the Supreme Court has required prisoners seeking to challenge a state’s method of execution to meet a “heavy burden,” id. at 53 (quotation omitted). Thus, in order to state an Eighth Amendment method-of-execution claim, a plaintiff must plead facts sufficient to establish that (1) the state’s lethal injection protocol “‘creates a demonstrated risk of severe pain,’” and (2) there is a “known and available” alternative method of execution that is “‘feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.’” Glossip, 135 S. Ct. at 2737 (alteration adopted) (quoting Baze, 553 US. at 52, 61 (plurality op.)); see also Jones, 811 F.3d at 1294-95; Brooks, 810 F.3d at 818–19.

21a As we’ve explained, in Count I, Boyd is challenging only a single aspect of the ADOC’s current execution protocol. His sole claim is that the ADOC’s switch from pentobarbital to midazolam as the first of three drugs has rendered the ADOC’s protocol likely to cause a “demonstrated risk of severe pain,” Glossip, 135 S. Ct. at 2737, because midazolam is a less effective anesthetic and sedative than pentobarbital. The appellees do not dispute that Boyd has alleged sufficient facts to satisfy this first element of his Eighth Amendment claim. The sole dispute on appeal concerns the second element identified by the Supreme Court in Baze and Glossip. The first question we confront, then, is whether -- taking Boyd’s allegations as true -- he has pled sufficient factual matter to make it plausible that the firing squad and hanging are known and available methods of execution that are feasible for use in and can be readily implemented by Alabama. Until recently, precedent provided little guidance in answering this question because, each time this Court or the Supreme Court had considered a method-of-execution challenge to a lethal injection protocol, the plaintiffs proposed alternative methods of lethal injection. Thus, for example, in Baze, the Supreme Court’s discussion of the alternative method element focused on the “comparative efficacy” of the prisoner’s proposed alternative lethal injection procedures, and did not discuss whether the alternatives were feasible or readily implemented. See Baze, 553 U.S. at 56–61 (plurality op.). And in Glossip, the Supreme Court held that the plaintiffs had failed to satisfy their burden to identify a “known and available alternative method of execution” because the record showed that Oklahoma had been unable to obtain the drugs necessary for

22a the plaintiffs’ proposed alternative single-drug execution protocol “despite a good-faith effort to do so.” Glossip, 135 S. Ct. at 2738. Similarly, our decisions applying this element focused on the feasibility of obtaining the drugs necessary for the alternative lethal injection protocols proposed by the plaintiffs. See Jones, 811 F.3d at 1295 (finding that the plaintiff’s allegation that Georgia could “obtain their drugs from a different source” insufficient to satisfy this element); Brooks, 810 F.3d at 820 (finding that the plaintiff had failed to show a substantial likelihood that pentobarbital “is available to Alabama now”); Gissendaner v. Comm’r, Georgia Dep’t of Corr., 779 F.3d 1275, 1283 (11th Cir.) (faulting the plaintiff for failing to plead “an alternative drug that would substantially reduce the risks she identifies with compounded pentobarbital” as well as “an alternative means of procuring that alternative drug”), cert. denied sub nom. Gissendaner v. Bryson, 135 S. Ct. 1580 (2015). In Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir. 2016), cert denied sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017), this Court considered for the first time a method-of-execution challenge to a lethal injection protocol that proposed as its alternative a completely different method of execution. Thomas Arthur challenged the use of midazolam in Alabama’s three-drug lethal injection protocol, and proposed as alternatives single-drug protocols of compounded pentobarbital or sodium thiopental. Id. at 1276–77. But he also sought leave to amend his complaint to add the firing squad as an additional execution alternative. Id. at 1277. The district court denied Arthur leave to amend, concluding that “execution by firing squad is not permitted by [Alabama] statute and, therefore, is not

23a a method of execution that could be considered either feasible or readily implemented by Alabama at this time.” Id. We affirmed that denial; we said that Arthur had not met his burden to show that “execution by firing squad,” which was not authorized by statute, “[wa]s a feasible, readily implemented, and significantly safer alternative method of execution when compared to” the authorized and unchallenged methods of lethal injection and electrocution. Id. at 1315. We are bound by that precedent here, and conclude that, like Arthur, Boyd has failed to carry his burden of pleading facts sufficient to plausibly suggest that execution by firing squad or hanging is feasible or readily implementable in Alabama. The concurring opinion agrees that we are bound by Arthur, but believes that case was incorrectly decided. We disagree for these reasons. Glossip’s second prong requires that a proposed alternative method of execution be “known and available” -- or, as the Court also puts it, “feasible[ and] readily implemented.” See Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 52, 61 (plurality op.)). This requirement plainly imposes real, practical limitations on the acceptable alternative methods of execution that a prisoner can plead in order to state a claim for an Eighth Amendment method-of-execution challenge. “Feasible” means “capable of being done, executed, or effected.” Webster’s Third New International Dictionary 831 (2002). And “readily” means “with fairly quick efficiency,” “without needless loss of time,” “reasonably fast,” or “with a fair degree of

24a ease.” Id. at 1889. 1 Moreover, the method of execution must be feasible and readily implemented for the state seeking to carry out the execution. See Jones, 811 F.3d at 1295; Brooks, 810 F.3d at 820. Accordingly, for a proposed method of execution to satisfy Glossip’s second prong, the state must be able to implement and carry out that method of execution relatively easily and reasonably quickly, and in a manner that “in fact significantly reduces a substantial risk of severe pain” relative to the intended method of execution. Glossip, 135 S. Ct. at 2737 (alteration adopted quotation omitted). Often, courts are confronted only with factual issues in addressing whether an alternative is sufficiently feasible and readily implementable to satisfy Glossip’s second prong -- for instance, that is generally the case when a plaintiff challenges a state’s lethal injection protocol and proposes some modification to that protocol as an alternative. Thus, in Glossip, the plaintiffs had alleged that Oklahoma could use a single-drug lethal injection protocol instead of its intended three-drug protocol, and the only question the Supreme Court asked was whether, as a matter of fact, Oklahoma could obtain the necessary alternative drugs. See id. at 2738. But Boyd has injected a distinct legal question into our analysis of this element (along with factual ones) by proposing an alternative method of execution

1 Generally, “[w]ords are to be understood in their ordinary, everyday meanings.” Alberts v. Royal Caribbean Cruises, Ltd., 834 F.3d 1202, 1204 (11th Cir. 2016) (quoting Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012)). “To determine the ordinary meaning of a term, courts often turn to dictionary definitions for guidance.” Castillo v. U.S. Atty. Gen., 756 F.3d 1268, 1273 (11th Cir. 2014) (quotation omitted).

25a that, under present conditions, appears unavailable to the ADOC under the state’s method of execution statute. Considering the legal obstacles that would prevent the ADOC from carrying out Boyd’s execution by hanging or firing squad, as well as the many factual deficiencies in Boyd’s pleading, we have little trouble concluding that Boyd has failed to state an Eighth Amendment claim. For starters, neither hanging nor firing squad is a currently lawful method of execution in Alabama. Therefore, a state trial court would be without any authority to order Boyd to be executed by firing squad or hanging, just as the ADOC would be without authority to execute Boyd by either method, without the Alabama legislature fundamentally rewriting the state’s method-of- execution statute or one of the courts named in the statute striking down as unconstitutional either electrocution or lethal injection. See Arthur, 840 F.3d at 1316. Again, Alabama’s method-of-execution statute allows all persons sentenced to death to choose between two methods of execution, providing that death sentences “shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution.” Ala. Code § 15-18-82.1(a) (emphasis added). Only if “electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court . . . [or] the United States Supreme Court . . . , or if the United States Supreme Court declines to review any judgment holding a method of execution to be unconstitutional . . . made by the Alabama Supreme Court or the United States Court of Appeals that has jurisdiction over Alabama” can the ADOC carry out Boyd’s execution by “any constitutional method of execution.” Id. § 15-18-82.1(c). But, as the parties

26a readily concede, neither electrocution nor lethal injection has been declared unconstitutional by this Court, the Alabama Supreme Court, or the United States Supreme Court. Moreover, in this suit, Boyd brings a narrow challenge to a single aspect of Alabama’s new lethal injection protocol and does not argue or even suggest that lethal injection is per se unconstitutional -- in fact, the very premise of his attack on the midazolam protocol is that it is more painful than the prior Alabama protocol using pentobarbital. Also, notably, he does not challenge the constitutionality of death by electrocution, or allege any facts establishing that electrocution involves a substantial risk of severe pain. Therefore, even if we were to agree with him that the midazolam protocol poses a substantial risk of serious harm, the ADOC would not be able to carry out Boyd’s death sentence by hanging or firing squad without the Alabama legislature fundamentally rewriting its method-of-execution statute. See Arthur, 840 F.3d at 1316. Boyd alleges, however, that, since the Oklahoma and Utah legislatures have approved death by firing squad and the Delaware, New Hampshire, and Washington legislatures have approved death by hanging, the Alabama legislature could easily do the same. But Boyd “misunderstands the state’s obligation under the Eighth Amendment.” Id. States that continue to have capital punishment may choose any method of execution they deem appropriate, subject only to the constraints of the United States Constitution. Id. Boyd argues that under the district court’s reading of the law a state could effectively negate the protections of the Eighth Amendment simply by enacting a method-of- execution statute that provides for only a single

27a method of execution -- even if that method “creates a demonstrated risk of severe pain,” Glossip, 135 S. Ct. at 2737 (quotation marks omitted) -- thereby preventing challengers from identifying a statutorily authorized alternative method. We rejected this argument in Arthur. See Arthur, 840 F.3d at 1317. In that case, we acknowledged that “if a state’s sole method of execution is deemed unconstitutional, while other methods remain constitutional (even if they are not authorized by state statute), our inquiry into whether those other options are feasible and readily implemented would be a different one.” Id. at 1319. But, notably, “the Alabama legislature has authorized two methods of execution -- lethal injection in any form and electrocution -- and neither of its authorized methods has been deemed unconstitutional.” Id. at 1317–18. Even if Boyd’s allegations about the midazolam protocol prove true, it would not entitle him to veto the Alabama legislature’s choice as to how Alabama inmates will be executed because there would still be other statutorily authorized (and wholly unchallenged) methods available. “Absent a showing that Alabama’s chosen methods of execution present an unconstitutional risk of severe pain, Alabama is under no obligation to deviate from its widely accepted, presumptively constitutional methods in favor of [Boyd’s] retrogressive alternative[s].” Id. at 1318. As we explained in Arthur, in considering whether Boyd’s proposed alternatives are “feasible” and “readily implemented,” it is also important to note that hanging and firing squad are vastly different methods of execution from electrocution and lethal injection -- the only methods of execution that Alabama has employed in the past ninety years. See

28a id. Hanging was an available method of execution in Alabama until 1927, when the legislature passed a statute providing electrocution as the sole method of execution. See Bachelor v. State, 113 So. 67, 72 (Ala. 1927). And, as far as we can tell, Alabama has never carried out an execution by firing squad or statutorily recognized it as a method for carrying out executions. Moreover, while it is technically true that a handful of states have authorized executions by hanging and firing squad, lethal injection is still the primary method of execution in each of those states, as it is in every state that allows for capital punishment. Delaware law provides that “[p]unishment of death shall, in all cases, be inflicted by [lethal injection].” Del. Code. tit. 11, § 4209(f). Only if lethal injection “is held unconstitutional by a court of competent jurisdiction” does the statute allow for execution “by hanging by the neck.” Id. Similarly, New Hampshire law provides that an inmate must be executed by lethal injection, and may only be executed by hanging “if for any reason the commissioner [of corrections] finds it to be impractical to carry out the punishment of death by [lethal injection].” N.H. Rev. Stat. § 630:5(XIV). Washington law also provides that executions “shall be inflicted by [lethal injection] . . . or, at the election of the defendant, by hanging by the neck.” Wash. Rev. Code § 10.95.180(1). Utah law provides that “lethal injection is the method of execution” for all defendants “sentenced to death on or after May 3, 2004,” Utah Code § 77-18- 5.5(1), but allows for execution by firing squad if “a court holds that a defendant has a right to be executed by firing squad,” id. § 77-18-5.5(2), “a court holds that lethal injection is unconstitutional on its

29a face” or “as applied,” id. § 77-18-5.5(3), or “the sentencing court determines the state is unable to lawfully obtain the substance or substances necessary to conduct an execution by lethal intravenous injection,” id. § 77-18-5.5(4). And Oklahoma law provides for firing squad as the quaternary option for carrying out an execution, making it available only after execution by lethal injection, nitrogen hypoxia, and electrocution are all declared unconstitutional. See Okla. Stat. tit. 22, § 1014. Thus, none of these states provide for hanging or firing squad as a primary method of execution, and they generally only make either of those methods available if certain contingencies are satisfied. And, indeed, Boyd’s complaint does not so much as allege that any of these states have actually used hanging or firing squad to carry out executions. Boyd has given us no indication of how often these methods are actually used, nor has he told us when the last time anyone was hung or shot by an American jurisdiction. This sits in stark contrast to the numerous executions by lethal injection that are carried out across the country each year. The fact that a few other states could theoretically carry out an execution by hanging or firing squad without violating their own laws tells us nothing about whether the methods are, in fact, readily implementable for use in actual executions in Alabama today. The Supreme Court has recognized that requiring a state to amend its method-of-execution statute or to authorize a variance from that statute “impos[es] significant costs on the State and the administration of its penal system.” Nelson, 541 U.S. at 644. That is particularly true where, as here, the necessary amendment would retreat from a

30a method of execution that is employed by the overwhelming majority of states that still authorize the death penalty and is widely considered the “most humane available,” and would replace it with methods of execution that have long been abandoned by almost every state in this country. See Baze, 553 U.S. at 62 (plurality op.). As the Supreme Court has recognized, “[t]he firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods[ of execution], culminating in today’s consensus on lethal injection.” Id.; see also id. at 42 (“A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States.”); Furman v. Georgia, 408 U.S. 238, 296–97 (1972) (Brennan, J., concurring) (“Our practice of punishing criminals by death has changed greatly over the years. One significant change has been in our methods of inflicting death. Although this country never embraced the more violent and repulsive methods employed in England, we did for a long time rely almost exclusively upon the gallows and the firing squad. Since the development of the supposedly more humane methods of electrocution late in the 19th century and lethal gas in the 20th, however, hanging and shooting have virtually ceased.”). Having authorized two unchallenged methods of execution to inmates under sentence of death, the Alabama legislature is under no obligation to make this type of regressive change to Alabama’s method- of-execution statute, and there is nothing offered by way of fact in Boyd’s pleading to suggest that the

31a ADOC could execute him by hanging or firing squad given the current state of Alabama law.2

2 It is also not clear that Boyd’s proposed second amended complaint contained sufficient factual allegations to establish that the ADOC could readily carry out an execution by hanging. See Iqbal, 556 U.S. at 678. He claims, only at the highest order of generality and without any factual development, that hanging is feasible and readily implementable by the ADOC. He says that the materials necessary are more easily obtained than are lethal injection drugs, but he provides no details about how any state carries out executions at the gallows. He does not allege that any state has actually carried out an execution by hanging, let alone has done so recently, or that the ADOC has access to any employee or other person who would know how to effectively carry out executions with this largely forsaken method. To be sure, it is “conceivable” that the ADOC could acquire the necessary supplies, hire experts to develop an execution protocol for hanging, assemble an execution team that is willing to carry out the protocol, train the team to be able to execute the protocol in an acceptably risk-free manner, and eventually carry out an execution by hanging, but Boyd’s cursory allegations appear to fall far short of pushing his claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Boyd’s allegations do not seem to plausibly suggest that the ADOC could readily accomplish the steps necessary to perform an execution by hanging. And there is good reason to think that Boyd could not plead sufficient facts to show that hanging “‘significantly reduces a substantial risk of severe pain.’” Glossip, 135 S. Ct. at 2737 (alteration adopted) (quoting Baze, 553 U.S. at 52, 61 (plurality op.)). The risks of hanging, which include strangulation and decapitation, are well known. See, e.g., Martin R. Gardner, Executions and Indignities -- An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L.J. 96 (1978): Although hanging has become something of an art in modern times, and may well be painless if properly performed, evidence of bungled hangings abounds: inadvertent decapitation when victims are dropped too long; strangulation when they are dropped too short to break their necks. Strangulation may be the rule

32a Boyd’s lawsuit is one of several filed by Alabama death-row inmates to challenge Alabama’s lethal injection protocol. After Glossip was decided, other inmates amended their complaints to allege alternative lethal injection methods of execution that Alabama could employ, and all of their complaints survived motions to dismiss and proceeded to evidentiary hearings. See, e.g., Frazier v. Thomas, 2:13-CV-781-WKW, 2015 WL 65096 (M.D. Ala. Jan. 5, 2015). Boyd has employed a different strategy than those other plaintiffs, alleging instead that the ADOC should employ profoundly different methods of execution that are not legal in Alabama and that have long been abandoned by states seeking to

rather than the exception. Unconsciousness is supposedly instantaneous even when the neck is not broken, but it is not entirely certain that this is true. If the victim is conscious, death by strangulation must be extremely painful. Id. at 120 (footnotes omitted); see also Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) (Reinhardt, J., concurring in part and dissenting in part): There is absolutely no question that every hanging involves a risk that the prisoner will not die immediately, but will instead strangle or asphyxiate to death. This process, which may take several minutes, is extremely painful. Not only does the prisoner experience the pain felt by any strangulation victim, but he does so while dangling at the end of a rope, after a severe trauma has been inflicted on his neck and spine. Although such a slow and painful death will occur in only a comparatively small percentage of cases, every single hanging involves a significant risk that it will occur. Id. at 712. “[D]raw[ing] on [our] judicial experience and common sense,” Iqbal, 556 U.S. at 679, we suspect that there are no facts Boyd could have pled regarding the risks of hanging that would be sufficient to meet his Glossip burden.

33a employ the “most humane” method of execution available, lethal injection. Baze, 553 U.S. at 62 (plurality op.). Boyd’s strategic choice left him with a steep hill to climb, requiring him to plead sufficient facts to render it plausible that methods of execution that are outdated, rarely (if ever) used, and beyond the ADOC’s statutory authority could be feasible and readily implemented by the ADOC. As we see it, Boyd’s allegations regarding death by hanging or firing squad fall far short of meeting the pleading burden unequivocally imposed by Glossip. “Alabama has chosen two constitutional methods of execution,” and Boyd “has not shown that they are, or that either one is, unconstitutional (per se or as applied to him).” Arthur, 840 F.3d at 1319. Absent making this showing, Boyd “is not entitled to veto the Alabama legislature’s choice of two constitutional methods of execution.” Id. Accordingly, we find that amending Count I would be futile, affirm the district court’s denial of leave to amend, and affirm its dismissal of Boyd’s claim. B. We now turn to Boyd’s remaining claims. All constitutional claims brought under § 1983 are tort actions and, thus, are subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought. See Wallace v. Kato, 549 U.S. 384, 387 (2007). Alabama law creates a two-year statute of limitations for personal injury actions. See Ala. Code § 6-2-38. Therefore, if any of Boyd’s claims accrued prior to October 2, 2012 -- two years prior to the date he filed this lawsuit -- they are time barred by the statute of limitations. The statute of limitations is an affirmative defense, so “a Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it

34a is apparent from the face of the complaint that the claim is time-barred.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845–46 (11th Cir. 2004) (quotation omitted). In McNair v. Allen, we addressed when a method of execution challenge under § 1983 accrues. Applying the general principle that “a federal claim accrues when the prospective plaintiff knows or has reason to know of the injury which is the basis of the action,” we considered four possible dates on which a method-of-execution claim could accrue: (1) the date the defendant’s death sentence became final; (2) the date that Alabama enacted its new lethal injection protocol; (3) the date the denial of the defendant’s federal habeas petition became final; or (4) the day of the defendant’s execution, “when the ultimate injury will occur.” McNair, 515 F.3d at 1173–74 (quotation omitted). We rejected the day of the execution as the accrual date because, for § 1983 claims seeking prospective relief from a future injury, a claim accrues when the litigant knows, or should have known, all of the facts necessary to pursue a cause of action, and death-sentenced inmates plainly know enough to challenge the state’s method of execution well before their execution date. Id. at 1174–75. And we rejected the completion of federal habeas review as the start date as well, since delaying accrual until that date “would provide capital defendants with a means of delaying execution even after their sentences have been found lawful by both state and federal courts,” id. at 1175, and would “diminish the interest of states and crime victims ‘in the timely enforcement of a sentence,’” id. at 1776 (quoting Hill, 547 U.S. at 584). We held that a method of execution claim will ordinarily accrue on the “date on which a litigant’s

35a death sentence becomes final following direct appeal” for the following reasons: First, by requiring a defendant to wait to bring a claim after direct review is complete (as opposed, say, to when the sentence is first imposed), we ensure claims are not brought prematurely, before state courts have had an adequate opportunity to correct any infirmities in the defendant’s conviction or sentence. Second, by requiring a claim to be brought within two years of the completion of state review, we guarantee defendants’ constitutional challenges to the method of their execution can be fully adjudicated and at the same time protect states from unnecessary interference in carrying out their judgments. Finally, selecting the completion of direct appeal as the moment a § 1983 claim accrues has the added benefit of mirroring the time at which a defendant’s habeas limitations period begins to run, see 28 U.S.C. § 2244(d)(1)(A), thereby simplifying the postconviction labyrinth of filing deadlines through which capital litigants must navigate. Id. at 1176–77. However, if there is a “significant change in the state’s execution protocol” after the inmate’s death sentence becomes final on direct appeal, the inmate has a new Eighth Amendment claim that accrues on the date of that significant change. Id. at 1177. Thus, it is now well established that “a 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 changed execution protocol.” Id.

36a at 1174; see also, e.g., Gissendaner, 779 F.3d at 1280; Wellons, 754 F.3d at 1263, cert. denied sub nom. Wellons v. Owens, 134 S. Ct. 2838 (2014); Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011); DeYoung v. Owens, 646 F.3d 1319, 1325 (11th Cir. 2011). However, a substantial change to a state’s lethal injection protocol doesn’t create an open season on all aspects of the state’s protocol. Rather, “a claim that accrues by virtue of a substantial change in a state’s execution protocol is limited to the particular part of the protocol that changed.” Gissendaner, 779 F.3d at 1280–81. “In other words, a substantial change to one aspect of a state’s execution protocol does not allow a prisoner whose complaint would otherwise be time-barred to make a ‘wholesale challenge’ to the State’s protocol.” Id. at 1281. “[W]hether a significant change has occurred in a state’s method of execution is a fact dependent inquiry.” Wellons, 754 F.3d at 1263. Boyd’s conviction became final in 1998, when the United States Supreme Court denied certiorari review of his state direct appeal. See Boyd, 525 U.S. at 968; see also Pugh v. Smith, 465 F.3d 1295, 1299 (11th Cir. 2006). The statute of limitations for Boyd’s method-of-execution claims had not yet began to run on that date because Alabama did not adopt lethal injection as its primary method of execution until July 31, 2002. Therefore, Boyd’s constitutional challenges to execution by lethal injection “accrued on July 31, 2002, absent a later ‘significant change’ in the state execution protocol.” Powell, 643 F.3d at 1304. We find that Boyd’s claims asserted in Counts II through V of his proposed second amended complaint are barred by the statute of limitations and, therefore, affirm the district court’s determination that amending them would be futile.

37a In Count II, Boyd alleges that the ADOC’s lethal injection protocol subjects him to a substantial risk of serious harm in violation of the Eighth Amendment because the officers who will carry out his execution are inadequately trained to establish an appropriate “plane of anesthesia” throughout the lethal injection process. In Count III, Boyd alleges that the ADOC’s execution facilities have deteriorated and that the ADOC lacks certain necessary equipment, and that these deficiencies create a substantial risk that his execution will not be carried out properly in violation of the Eighth Amendment. Boyd readily concedes that Counts II and III are unrelated to the adoption of the new midazolam protocol, but argues that they are timely anyway because they relate to the present training of the execution team and the current condition of the ADOC’s facilities, each of which has substantially changed within two-years prior to filing his complaint. We remain unpersuaded. In support of Count II, Boyd makes several allegations about seemingly longstanding facets of the ADOC lethal injection protocol. For example, he alleges that the ADOC’s protocol is unconstitutional because the ADOC fails to “adequately ensure that the individuals responsible for inducing and maintaining unconsciousness are credentialed, licensed and proficient in the knowledge, skills, and procedures necessary to establish an appropriate plane of anesthesia throughout the lethal injection process.” He makes no claim that the ADOC has recently altered its training and credentialing requirements for members of its execution team. Similarly, he alleges generally that the ADOC doesn’t have any guidelines in place for the execution team to rely on in exercising its discretion during the

38a execution process, but does not say that this is the result of any change to the ADOC’s lethal injection practices that have been in place since 2002. Because these allegations relate to aspects of (or deficiencies in) the ADOC’s lethal injection protocol that have been in place since July 2002, Boyd’s claim that they violate the Eighth Amendment is time barred. Boyd also alleges that recent changes in the composition of the ADOC’s execution team render it unprepared to perform his execution. Boyd says that, over the course of three years, the execution team lost three members and has not performed enough training exercises. Even taking these allegations as true and drawing all reasonable inferences therefrom, we do not think that Boyd has said enough to plead a “significant change” in the ADOC’s execution protocol. Indeed, apart from the alleged fact that the ADOC does not adequately train its execution team -- which, as we just explained, is time-barred from challenge -- Boyd provides no reason to think that the ADOC has not hired new team members or that these new members will be any less fit to carry out an execution than the officers they’re replacing. To allow each instance of employee turnover in a state’s execution team to create a new Eighth Amendment violation would render the “significant change” requirement meaningless. We agree with the district court that Count II was time barred. In support of Count III, Boyd again offers general allegations about the conditions of the ADOC’s execution facilities and the dearth of necessary equipment, as well as more specific claims about recent changes in the conditions of the facilities and equipment. Thus, for example, he alleges that the ADOC has not demonstrated that it

39a has the equipment necessary to achieve and maintain venous access in the event of a complication during his execution. This, again, is a general allegation that is not related to any change in the ADOC’s protocol, facilities, or equipment and, therefore, is time-barred from challenge. Boyd also alleges that, “[s]hortly before” the new midazolam protocol was announced, “reports indicate[d]” that the ADOC’s execution chamber was in poor condition and had suffered water damage, and that the equipment in the chamber was moved out of place and may have been damaged. But, apart from the conclusory allegation that these conditions are “insufficient for performing a constitutional execution,” Boyd provides no allegations to support the inference that water damage to the execution chamber or possible damage to certain unspecified equipment renders it substantially more likely that his execution will be unnecessarily painful. Because Boyd became subject to death by lethal injection in the William C. Holman execution chamber when the legislature amended the method of execution in July 2002, see Ala. Code § 15-18-82, and has not provided sufficient factual allegations to show that there has been a constitutionally significant change to the quality of those facilities since that time, we find Count III to be time barred as well. In Count IV, Boyd alleges that the ADOC’s secrecy surrounding its lethal injection protocol violates his right to due process of law because it deprives him of the information necessary to effectively enforce his Eighth Amendment rights in court. He also alleges that the ADOC’s ability to amend the protocol without affording him and other death row inmates notice and an opportunity to challenge the proposed amendments violates due

40a process. As we see it, Boyd’s secrecy claim is time- barred because the ADOC’s protocol has been protected by the same secrecy since the Alabama legislature enacted lethal injection as its method of execution on July 31, 2002.3 See Powell, 643 F.3d at 1305 (finding time-barred plaintiff’s claim that “his rights under the Eighth and Fourteenth Amendments were violated because Alabama’s private execution protocol was changed secretly and without any oversight” because “Powell could have challenged the ADOC’s ‘secrecy’ surrounding the method of execution beginning July 31, 2002, as the facts supporting this cause of action ‘should have been apparent to any person with a reasonably prudent regard for his rights’”) (quoting McNair, 515 F.3d at 1177). Boyd argues that this claim did not accrue until the new midazolam policy was announced, but his due process claim is not in any way “limited to the particular part of the protocol that changed.” Gissendaner, 779 F.3d at 1280–81. Indeed, his complaint avers that “the type and dosage of the [ ] drugs used” in the protocol is one of the few pieces of information that Alabama does not keep secret -- so this claim on its face does not pertain to those drugs or their replacements. Boyd instead challenges other aspects of Alabama’s execution protocol -- secrecy and the ability to amend the protocol without affording inmates an opportunity to comment on proposed changes -- that

3 The parties do not point to any rule or regulation that requires that the ADOC keep its lethal injection protocol confidential. The “secrecy” Boyd seeks to challenge stems from the fact that, under the July 31, 2002 method-of-execution statute, the ADOC’s execution protocols are exempt from the notice and comment requirements of the Alabama Administrative Procedure Act in exercising that authority. See Ala. Code. § 15-18-82.1(g).

41a have been in place since lethal injection was adopted as Alabama’s method of execution on July 31, 2002. See Powell, 634 F.3d at 1305.4 In Count V, Boyd alleges that there is a substantial risk that the ADOC execution team will treat him differently from other inmates by failing to perform a “pinch test” on him during his execution, which will make it more likely that he will be conscious when he is injected with the painful second and third drugs in the protocol and will deny him equal protection of the laws under the Fourteenth Amendment. We find this claim to be time-barred as well. Boyd does not allege that the pinch test is a new component of the lethal injection protocol, nor does he contend that some recent change to the protocol has rendered the consciousness test less reliable. While he says that the state failed to perform a pinch test on Eddie Powell prior to injecting him with the second and third drugs in the protocol, Powell’s execution was in 2011, more than two years before Boyd filed his complaint. See

4 The district court also held that Boyd’s secrecy claim fails as a matter of law under our decision in Wellons, 754 F.3d at 1267, where we held that inmates do not have a “broad right to know where, how, and by whom the lethal injection drugs will be manufactured, as well as the qualifications of the persons who will manufacture the drugs, and who will place the catheters.” Our holding in Wellons and subsequent cases, see, e.g., Jones, 811 F.3d at 1292–94, plainly bars Boyd’s claim that he has a due process right to know the details of Alabama’s execution protocol so he can challenge that protocol in court. However, Boyd’s due process claim arguably has a distinct component -- challenging the lack of notice and comment afforded to inmates prior to amending Alabama’s execution protocol -- that we have never squarely addressed. Since our decision in Powell makes clear that Boyd’s due process claim is untimely, we need not and do not decide whether it is also fails to state a claim for a due process violation.

42a Arthur v. Thomas, 674 F.3d 1257, 1263 (11th Cir. 2012). Therefore, Boyd concedes that the pinch test and any associated risk was part of the execution protocol more than two years before he filed his complaint. Even so, Boyd argues that his equal protection claim is timely because he is challenging an “ongoing circumstance” that constitutes a “continuing violation” of his right to equal protection of the laws, and that his cause of action will not accrue until the alleged unlawful conduct ceases. However, this Court has already rejected that argument in McNair, where we recognized that a method-of-execution challenge is seeking prospective relief against a future injury, 515 F.3d at 1174, but nevertheless held that the cause of action accrues (and the statute of limitation begins to run) when “the facts which would support a cause of action should have been apparent to any person with a reasonably prudent regard for his rights,” id. at 1177. We are bound by that prior decision, see Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001), and we agree with the district court that this claim, too, is untimely.5 C. While Boyd’s case was pending on appeal, the Supreme Court decided Hurst Florida, 136 S. Ct. 616 (2016), holding that Florida’s capital sentencing scheme ran afoul of the Sixth Amendment right to a jury trial because it enabled a judge to increase the maximum authorized penalty from life imprisonment to death “based on her own factfinding.” Id. at 622. For the first time on appeal in this Court, Boyd

5 On appeal, Boyd does not challenge the district court’s dismissal of Counts VI and VII, seeking declaratory and injunctive relief.

43a argues that Alabama’s capital sentencing scheme suffers from the same infirmity, and asks that we reform Alabama’s capital sentencing scheme to comply with Hurst. We understand Boyd to be arguing that his death sentence is unconstitutional based on the Supreme Court’s Hurst decision. We will not consider this claim because we have “repeatedly held that ‘an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.’” Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994) (quoting Depree v. Thomas, 946 F.2d 784, 793 (11th Cir. 1991)). Moreover, Boyd’s Hurst claim plainly falls within the province of habeas corpus and cannot be brought pursuant to § 1983. Habeas and § 1983 are “mutually exclusive” avenues for relief; if a claim can be raised in a federal habeas petition, “§ 1983 must yield to the more specific federal habeas statute, with its attendant procedural and exhaustion requirements.” Nelson v. Campbell, 541 U.S. 637, 643 (2004). This requirement is consonant with the “explicit congressional intent” that prisoners whose claims fall within the “core” of habeas corpus not be able to “evade [its] requirement[s] by the simple expedient of putting a different label on their pleadings.” Preiser v. Rodriguez, 411 U.S. 475, 489– 90 (1973). The line of demarcation between habeas and § 1983 “is based on the effect of the claim on the inmate’s conviction and/or sentence.” Hutcherson, 468 F.3d at 754. By arguing that the death sentence he received is unconstitutional in light of Alabama’s capital sentencing scheme, Boyd undeniably seeks to “invalidate his . . . sentence or change the nature or duration of his sentence,” and so this claim “must be

44a raised in a § 2254 habeas petition, not a § 1983 civil rights action.” Id. The long and short of it is Boyd’s proposed second amended complaint falls well short of plausibly pleading an alternative method of execution that is feasible, readily implemented, and in fact significantly less risky or painful than ADOC’s current three-drug midazolam protocol and, therefore, fails to state a claim for an Eighth Amendment violation regarding the new protocol. The remainder of Boyd’s claims are untimely as they were filed well beyond the two-year statute of limitations that govern § 1983 claims in Alabama. Accordingly, we affirm the district court’s determination that granting Boyd leave to amend his complaint would be futile, and affirm its dismissal of Boyd’s suit. AFFIRMED.

45a WILSON, Circuit Judge, concurring in judgment:

Arthur 1 is binding law in this circuit, and under that precedent, we must dismiss Anthony Boyd’s method-of-execution claim and ancillary due process claim. However, I dissented in Arthur and continue to believe it was wrongly decided. But for Arthur, I would reverse the district court’s dismissal of Boyd’s method-of-execution and due process claims. I write separately to explain why, and to note that much of the Majority opinion is dicta with which I disagree. I. METHOD-OF-EXECUTION CLAIM The Majority affirms the dismissal of Boyd’s method-of-execution claim based on the finding that Boyd has not sufficiently alleged an execution alternative. Boyd proposes death by firing squad as an execution alternative, but the Majority correctly determines that, under Arthur, § 15-18-82.1 of the Alabama Code precludes Boyd from relying on the firing squad as an alternative. 2 The Majority however does not end its analysis of Boyd’s method- of-execution claim with Arthur’s dispositive finding— it continues to discuss the claim for several pages. See Maj. Op. at 23–34. That unnecessary discussion of the claim is non-binding dicta. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010) (stating that dicta is language in an opinion “not necessary to the decision”); Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010)

1 Arthur v. Comm’r, Ala. Dept. of Corrs., 840 F.3d 1268 (11th Cir. 2016), cert. denied sub nom. Arthur v. Dunn (Arthur II), 580 U.S. ___ 137 S. Ct. 725 (2017). 2 Boyd relies on hanging as another execution alternative, but Arthur forecloses that alternative as well.

46a (“[D]icta is not binding on anyone for any purpose.”). And in that dicta the Majority suggests that Boyd’s claim fails not only because of § 15-18-82.1 but also because Boyd’s allegations are insufficient to support a finding that the firing squad is a practicable execution alternative in Alabama. As I discussed in my Arthur dissent, I do not believe that § 15-18-82.1 precludes claimants like Boyd from relying on death by firing squad. Arthur, 840 F.3d at 1321–33 (Wilson, J., dissenting). Also, I disagree with the Majority’s suggestion that Boyd’s allegations about the firing squad are insufficient. But for Arthur, I would allow Boyd to proceed to discovery on his method-of-execution claim. A. Arthur was wrongly decided. In concluding that § 15–18–82.1 forecloses method-of-execution claims that rely on death by firing squad as an execution alternative, our decision in Arthur promulgated a startling holding: that state legislation can thwart constitutional claims for relief from cruel and unusual punishment. See id. at 1327–28. In my view, that holding is deeply flawed and Arthur was wrongly decided. But rather than revisit why I believe the holding is flawed, I defer to my Arthur dissent and limit my discussion to developments subsequent to Arthur that further lament the holding. In the short time since Arthur was decided, two Supreme Court justices have expressed reservations about the holding; a court of appeals judge has penned a concurrence that highlights the tension between the holding and the Eighth Amendment; a district court judge has disagreed with the holding; and at least one circuit court has departed from the holding, creating a circuit split.

47a Justice Sotomayor, joined by Justice Breyer, dissented to the denial of certiorari in Arthur, and in the dissent, the Justices voiced serious concerns about this court’s holding in the case. Our decision in Arthur, the Justices found, “contradicts the very decisions it purports to follow—Baze and Glossip”;3 violates the Supremacy Clause “by conditioning federal constitutional rights on the operation of state statutes”; and risks inconsistent application of the Constitution since, under the decision, whether a prisoner can obtain method-of-execution relief “depends not on the Constitution but on vagaries of state law.” See Arthur II, 137 Ct. at 729–30 (Sotomayor, J., joined by Breyer, J., dissenting from denial of certiorari). What’s more, the Justices found that the Arthur holding jeopardizes the “ongoing national conversation . . . around the methods of execution the [Eighth Amendment] tolerates.” Id. at 731. That constitutionally required conversation takes place through a dialectic exchange between courts and legislatures in which courts examine evolving standards of decency and apply those standards to state-execution practices. See id. at 731–33. The Justices determined that Arthur, by finding that state legislation can thwart method-of- execution claims, empowers states to “silence” that conversation. See id. Shortly after certiorari was denied in Arthur, Judge Stranch of the Sixth Circuit Court of Appeals cited Justice Sotomayor and Justice Breyer’s dissent in a concurrence that calls attention to the tension between our holding in Arthur and the Eighth Amendment. See In re Ohio Execution Protocol, 853

3 Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008); Glossip v. Gross, 576 U.S. ___, 135 S. Ct. 2726 (2015).

48a F.3d 822, 846–47 (6th Cir.) (Stranch, J., concurring), vacated for reh’g en banc, ___ F.3d ___ (6th Cir. Apr. 25 2017). The concurrence highlights the constitutional dilemma posed by a holding like Arthur’s that allows states to muzzle the national conversation about the death penalty. Judge Stranch stressed that the Eighth Amendment requires “a continuing dialogue” between courts, legislatures, and the American people “on the meaning of the Amendment’s prohibition on cruel and unusual punishments.” See id. “[T]he meaning of th[e] prohibition is derived from the evolving standards of decency that mark the progress of a maturing society,” and without a continuing dialogue, courts cannot fulfill their duty under the Eighth Amendment to identify, clarify, and enforce those standards. See id. (internal quotation marks omitted). Pointing to recent developments in our society that bear on the death penalty and evolving standards of decency, Judge Stranch deftly illustrated this point. Judge Stranch noted that countless drug companies in recent years have refused “to sell execution drugs” and that this development may evidence “changing societal attitudes toward the death penalty and a conclusion . . . that the business in which drug companies engage, selling drugs that improve health and preserve life, is not consistent with selling drugs that are used to put people to death.” Id. at 846. She also noted that a “2015 survey found that a majority of Americans prefer life without parole over the death penalty for people convicted of murder” and that the survey “matches polling in 2016 finding that public support for the death penalty has dropped below 50%, to its lowest level in 45 years.” Id. at 847.

49a Absent a continuing dialogue among courts, legislatures, and the American people that takes into account these types of developments, our jurisprudence and state-execution practices would inevitably become divorced from evolving standards of decency. See Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 2036 (2010) (Stevens, J., concurring) (“Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time . . . .”). Following Judge Stranch’s concurrence, Judge Baker of the District Court for the Eastern District of Arkansas issued an order further calling into question our court’s holding in Arthur. In granting a preliminary injunction to halt a series of Arkansas executions, Judge Baker disagreed with the holding. McGehee v. Hutchinson, No. 17-00179, slip op. at 80 (E.D. Ark.), vacated on other grounds by McGehee v. Hutchinson (McGehee II), ___ F.3d ___, No. 17-1804 (8th Cir.) (en banc), cert. denied, 581 U.S. ___, No. 16-8787 (Apr. 20, 2017). She found “that the Eleventh Circuit’s limitation [in Arthur] of alternative methods [of execution] to those presently permitted under state law finds no textual basis in Baze or Glossip.” See id. Although the Eighth Circuit Court of Appeals, sitting en banc, vacated Judge Baker’s preliminary injunction, it agreed with Judge Baker’s departure from the Arthur holding: “[W]e disagree with the legal standard that the district court applied in determining whether alternative methods of execution are known and available. [However, w]e do not say that an alternative method must be

50a authorized by statute or ready to use immediately . . . .” See McGehee II, slip op. at 6. These critiques of our decision in Arthur underscore its serious flaws. I suspect that as time passes the body of jurisprudence casting doubt on Arthur will only continue to grow. B. Boyd’s allegations are sufficient. Boyd is entitled to proceed to discovery if his complaint includes allegations sufficient to support a reasonable inference that death by firing squad (1) is “feasible [and] readily implemented” and (2) “significantly reduces a substantial risk of severe pain.” See Glossip, 135 S. Ct. at 2737 (internal quotation marks omitted); Baze, 553 U.S. at 52, 128 S. Ct. at 1532 (plurality opinion); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). In considering whether Boyd’s allegations satisfy these requirements, we must accept the allegations as true. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. We must also “draw on [our] judicial experience and common sense” and take into account the specific “context” surrounding the firing squad. See id. at 679, 129 S. Ct. at 1950; Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1062 n.5 (11th Cir. 2010) (“[A] district court must examine a claim’s context and draw on the court’s judicial experience and common sense, when evaluating whether a complaint sufficiently pleads a claim . . . .” (internal quotation marks omitted) (emphasis in original)). Boyd alleges: Both Utah and Oklahoma use or could use the firing squad, which makes it a known alternative. Use of a firing squad based on an existing protocol from one of these states

51a is “available” because there are no impediments to obtaining the required materials, as there may be for lethal injection drugs. [Alabama] h[as] represented that [certain alternative lethal injection drugs] are not “available,” and the same cannot be said for the materials required for a firing squad execution. For instance, Utah’s protocol contemplates five trained shooters, four of whose guns are loaded and the fifth loaded with a non-lethal wax bullet. Both of these other states evaluated and approved the firing squad as a method of execution through the legislative process, as states, including [Alabama] are fully capable of doing. Use of a firing squad, a known and available alternative based on one of these other states’ protocols, would entail a lesser risk of pain than the substantial risk of severe pain Mr. Boyd faces under Alabama’s existing protocol. This is so even though firing squad execution—while more unpleasant to observe than lethal injections, and while described as “barbaric”—are viewed as having a record of relative speed and certainty for the condemned, whose constitutional rights are actually at stake. If we set aside Arthur, these allegations— viewed through the lens of judicial experience, common sense, and the context surrounding death by firing squad—are sufficient to support a “reasonable inference” that the firing squad satisfies the requirements of Baze and Glossip. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.

52a 1. Boyd’s allegations support a reasonable inference that the firing squad is feasible and readily implemented. The context specific to death by firing squad provides an important backdrop for our analysis of whether Boyd has sufficiently alleged that the firing squad is feasible and readily implemented. See id. at 679, 129 S. Ct. at 1950; Roe, 613 F.3d at 1062 n.5. “[D]rawing on our judicial experience and common sense,” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950, we know that the firing squad is a straightforward, well- known procedure that has been performed for centuries, see Baze, 553 U.S. at 42, 48, 128 S. Ct. at 1526, 1530; Glossip, 135 S. Ct. at 2732, 2739; Wilkerson v. Utah, 99 U.S. 130, 134–36 (1878) (holding that death by firing squad is constitutional and noting that in the nineteenth century the military “commonly” used the firing squad); Guardian News & Media LLC v. Ryan, ___ F. Supp. 3d ___, No. 14-02363, slip op. at 18 (D. Ariz. Dec. 21, 2016) (referring to the firing squad as a “still-used historical execution technique[]”). We also know that the materials necessary for the firing squad—guns and bullets—are abundant. Finally, we know that Alabama has ready access to guns, bullets, and personnel who are trained in firearms because Alabama is a modern militarized state with a national guard, a department of corrections, and a police force. Considering this context and taking Boyd’s allegations as true, the allegations support a reasonable inference that death by firing squad is “known and available,” which means the allegations support a reasonable inference that the firing squad is feasible and readily implemented. See Baze, 553 U.S. at 61, 128 S. Ct. at 1537 (equating “feasible and

53a readily implemented” with “known and available” when articulating the standard for method-of- execution claims); Glossip, 135 S. Ct. at 2737–38 (same). First, the firing squad itself, the possible procedures for administering the firing squad, and the materials and personnel needed to perform the firing squad are clearly “known.” The long history of the firing squad and the straightforward process for implementing the firing squad compel this conclusion. Second, Boyd’s allegations make plausible his claim that the firing squad is available to Alabama. Boyd alleges that Utah and Oklahoma use or could use the firing squad4 and that no impediments exist to Alabama employing the firing squad in a manner similar to those states’. Given that Alabama, like Utah and Oklahoma, is a modern militarized state with the death penalty, that allegation is plausible. See Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir.) (Kozinski, J., dissenting from denial of rehearing en banc) (“There are plenty of people employed by [a] state who can pull the trigger [for a firing-squad execution] and have the training to aim true. [And t]he weapons and ammunition are bought by the state in massive quantities for law enforcement purposes.”), vacated, 135 S. Ct. 21 (2014). A conclusion to the contrary would strain credulity. Firing-squad executions were carried out in this country as early as the nineteenth century. See Wilkerson, 99 U.S. at 134–36. Surely Alabama has

4 Bolstering this allegation, Utah successfully carried out a firing-squad execution as recently as 2010—a fact of which judicial notice can be taken at this stage in the proceedings. See Fed. R. Evid. 201(b), (d).

54a the capacity in the age of drones and space travel to assemble a firing squad, especially considering that Alabama could look to Utah and Oklahoma for assistance. See Watts v. State of Ind., 338 U.S. 49, 52, 69 S. Ct. 1347, 1349 (1949) (plurality opinion) (“[T]his Court should not be ignorant as judges of what we know as men.”). Indeed, Alabama has been able to assemble the equipment, personnel, and protocols needed for lethal injection—a much more complicated procedure than the firing squad. 2. Boyd’s allegations support a reasonable inference that the firing squad significantly reduces a substantial risk of severe pain. Boyd extensively alleges that Alabama’s current execution method—lethal injection using midazolam—poses a substantial risk of severe pain, and Alabama does not dispute the sufficiency of those allegations. 5 Accordingly, if Boyd has sufficiently alleged that death by firing squad does not involve such a risk, his allegations support a finding that the firing squad significantly reduces a substantial risk of severe pain. He has done exactly that. Boyd pleads that death by firing squad poses minimal risk of pain because it is a certain, speedy method of execution. Taking into account judicial experience and common sense, that allegation is plausible. The Supreme Court has remarked that

5 Alabama would likely have difficulty challenging Boyd’s allegations given that “[s]cience and experience are now revealing that, at least with respect to midazolam-centered protocols, prisoners executed by lethal injection are suffering horrifying deaths . . . .” See Arthur II, 137 S. Ct. at 733 (Sotomayor, J., joined by Breyer, J., dissenting from denial of certiorari).

55a “there is some reason to think that [the firing squad] is relatively quick and painless.” See Glossip, 135 S. Ct. at 2739 (internal quotation marks omitted); id. at 2797 (Sotomayor, J., dissenting) (“[F]rom a condemned inmate’s perspective, . . . [the] relatively painless violence [of death by firing squad] may be vastly preferable to an excruciatingly painful death hidden behind a veneer of [lethal injection drugs.]”). Similarly, Judge Kozinski of the Ninth Circuit Court of Appeals has recognized that a firing-squad execution limits a prisoner’s risk of pain. See Wood, 759 F.3d at 1103 (Kozinski, J., dissenting from denial of rehearing en banc) (“The firing squad strikes me as the most promising [method of execution]. . . . [L]arge-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time.”).6 II. DUE PROCESS CLAIM The Majority also dismisses Boyd’s due process claim, finding that the claim is time barred. See Maj. Op. at 41–42. I do not believe the claim is time barred, but I agree with the Majority’s ultimate determination that the claim is subject to dismissal.

6 Moreover, a number of scholars have opined that states should turn to death by firing squad because, among other things, it is a relatively quick and painless method of execution. See, e.g., Deborah W. Denno, The Firing Squad As “A Known and Available Alternative Method of Execution” Post-Glossip, 49 U. Mich. J. L. Reform 749, 792–93 (2016); Alexander Vey, Note, No Clean Hands in A Dirty Business: Firing Squads and the Euphemism of “Evolving Standards of Decency”, 69 Vand. L. Rev. 545, 575–78 (2016); Kristen Loveland, Note, Death and Its Dignities, 91 N.Y.U. L. Rev. 1279, 1313 (2016); P. Thomas Distanislao, III, Note, A Shot in the Dark: Why Virginia Should Adopt the Firing Squad As Its Primary Method of Execution, 49 U. Rich. L. Rev. 779, 805 (2015).

56a Because Boyd’s method-of-execution claim is timely, see id. at 3, so is his due process claim. The same two-year limitations period governs both claims, and the claims accrued at the same time. Boyd argues that the secrecy surrounding Alabama’s execution protocol violates his due process rights because the secrecy denies him a fair opportunity to pursue his method-of-execution claim. Boyd’s due process claim is therefore ancillary to his method-of- execution claim, 7 and it did not accrue until the method-of-execution claim accrued. Boyd’s due process right to be afforded “an opportunity . . . to substantiate [his method-of-execution] claim before it is rejected” could not have been infringed before his method-of-execution claim even arose. See Ford v. Wainwright, 477 U.S. 399, 414, 106 S. Ct. 2595, 2604 (1986) (plurality opinion) (internal quotation marks omitted).

7 Citing Wellons v. Commissioner, Georgia Department of Corrections, 754 F.3d 1260 (11th Cir. 2014) (per curiam), and Jones v. Commissioner, Georgia Department of Corrections, 811 F.3d 1288 (11th Cir. 2016), the Majority suggests that Boyd has not stated a valid due process claim because a prisoner does not have a standalone right to know the details of his state’s method of execution. See Maj. Op. at 42 n.2. However, Boyd’s due process claim includes allegations that Alabama’s “secrecy policy” infringes his opportunity to litigate his method- of-execution claim. The claim is not based on a standalone right to execution-related information; the claim is ancillary to Boyd’s method-of-execution claim and implicates established due process rights. The “elementary rights of men” require “fairness” and “[a]n opportunity to be heard.” See Joint Anti- Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170–71, 71 S. Ct. 624, 647–48 (1951) (Frankfurter, J., concurring). When a state policy impairs a prisoner’s opportunity to litigate a constitutional claim, the prisoner can challenge the policy as part of his constitutional claim. See id. Neither Wellons nor Jones forecloses this type of ancillary due process claim.

57a Even so, we must dismiss Boyd’s due process claim since it is ancillary to, and thus shares the fate of, his method-of-execution claim. III. CONCLUSION Although Arthur compels us to affirm the dismissal of Anthony Boyd’s method-of-execution and due process claims, I continue to believe Arthur was wrongly decided. This case highlights the tension between that decision and the Eighth Amendment. Boyd faces a controversial method of execution— midazolam-based lethal injection—that has resulted in botched and inhumane executions, and he has identified a viable execution alternative. Yet because of Arthur, Boyd cannot even access discovery. I concur in the result only.

58a APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

ANTHONY BOYD, ) ) Plaintiff, ) ) v. ) CASE NO. ) 2:14-CV-1017-WKW WALTER MYERS, et al., ) ) Defendants. )

FINAL JUDGMENT

In accordance with the court’s Memorandum Opinion and Order entered on October 7, 2015, it is ORDERED, ADJUDGED, and DECREED that judgment is entered in favor of Defendants Walter Myers, Luther Strange, and Jefferson S. Dunn, and against Plaintiff Anthony Boyd as to all claims in his amended complaint, and those claims are DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure and to close the file. DONE this 7th day of October, 2015.

/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE

59a A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the new fee to file an appeal will increase from $455.00 to $505.00.

CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 (11th Cir. 1983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c). (b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A

60a judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721- 22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.2d 832, 837 (11th Cir. 1998). (c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[interlocutory decrees . . . from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable. (e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine

61a Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04 2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits: (a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below. (b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”

62a (c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

63a 3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant. 4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

64a APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

ANTHONY BOYD, ) ) Plaintiff, ) ) v. ) CASE NO. ) 2:14-CV-1017-WKW WALTER MYERS, et al., ) WO – Do Not Publish ) Defendants. )

MEMORANDUM OPINION AND ORDER

This is one of seven 42 U.S.C. § 1983 lethal injection challenges pending before the court. On October 2, 2014, Plaintiff Anthony Boyd (“Boyd”), a death row inmate, filed a complaint challenging the constitutionality of Alabama’s lethal injection protocol. (Doc. # 1.) Boyd filed an amended complaint on December 1, 2014, asserting the following claims: (1) an Eighth Amendment method-of-execution claim based on the State’s substitution of midazolam hydrochloride as the first drug in its three- drug lethal injection cocktail (Count I); (2) an Eighth Amendment claim based on a substantial risk of “maladministration” of Boyd’s execution resulting from the inadequate training and qualifications of the execution squad (Count II); (3) an Eighth Amendment claim based on a substantial risk of “maladministration” of Boyd’s execution resulting from a deficient execution chamber and equipment (Count III); (4) a Fourteenth Amendment due process claim based on the

65a secrecy surrounding the State’s lethal injection protocol (Count IV); (5) a Fourteenth Amendment equal protection claim based on a future risk that the State will fail to perform, or to perform adequately, the consciousness assessment during Boyd’s execution (Count V); and (6) two general claims for declaratory relief (Count VI) and injunctive relief (Count VII). (Doc. # 21.) Boyd asserts his claims against Walter Myers, Warden of Holman Correctional Facility, where Alabama’s executions take place, Luther Strange, Attorney General for the State of Alabama, and Jefferson S. Dunn, Commissioner of the Alabama Department of Corrections.1 (Doc. # 21.)

Now before the court are two motions: (1) the State’s renewed motion to dismiss based on Glossip v. Gross, which was filed on July 13, 2015 (Doc. # 39), and (2) Boyd’s motion for leave to file second amended complaint, which was filed on August 13, 2015 (Doc. # 45). Both motions have been fully briefed and are ripe for disposition. (Docs. # 43, 44, 46, 48, 49.) After careful consideration of the parties’ arguments and the relevant case law, and for the reasons explained herein, the court finds that Boyd’s motion for leave to file a second amended complaint (Doc. # 45) is due to be DENIED, and that the State’s renewed motion to dismiss (Doc. # 39) is due to be GRANTED.

1 Kim T. Thomas was the Commissioner of the Alabama Department of Corrections at the time Boyd filed his December 1, 2014 amended complaint. (Doc. # 21.) However, since the time of that filing, Jefferson S. Dunn was appointed Commissioner of the Alabama Department of Corrections. As a result, the court sua sponte amended the style of this action to reflect that change. (Doc. # 36.)

66a I. STANDARDS OF REVIEW

“The decision whether to grant leave to amend a complaint is within the sole discretion of the district court.” Laurie v. Ala. Ct. of Criminal Appeals, 256 F.3d 1266, 1274 (11th Cir. 2001). However, Rule 15 of the Federal Rules of Civil Procedure limits the court’s discretion by instructing courts to “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “In order to successfully oppose a motion for leave to amend, the opposing party must provide a substantial reason to the court.” Shorter v. Dollar, No. 3:11-cv-531-WHA, 2012 WL 602357, at *2 (M.D. Ala. Feb. 24, 2012). “Such reasons include ‘undue delay, bad faith, dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.’” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

A Rule 12(b)(6) motion to dismiss, on the other hand, “tests the legal sufficiency of the complaint.” Polk v. Law Offices of Curtis O. Barnes, No. 2:10- cv-36-MEF, 2010 WL 1994093, at *1 (M.D. Ala. May 17, 2010). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A complaint does not state a facially plausible claim for relief

67a if it shows only “a sheer possibility that the defendant acted unlawfully.” Id.

In considering a defendant’s Rule 12(b)(6) motion to dismiss, a district court must accept as true all well-pleaded factual allegations and view them in the light most favorable to the plaintiff. Polk, 2010 WL 1994093 at *1. A complaint need not contain “detailed factual allegations” but must include enough facts “to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (internal citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

II. FACTUAL AND PROCEDURAL SUMMARY

In 1995, Boyd was convicted of capital murder committed during a kidnapping in the first degree and was sentenced to death. His conviction and sentence have been affirmed on direct review, see Boyd v. State, 715 So. 2d 825 (Ala. 1997), aff’d sub nom. Ex parte Boyd, 715 So. 2d 852 (1998), and cert. denied, Boyd v. Alabama, 525 U.S. 968 (1998), and collateral review, see Boyd v. State, 913 So. 2d 1113 (Ala. Crim. App. 2003), cert. denied, No. 1030438 (Ala. May 27, 2005); Boyd v. Comm’r, Ala. Dep’t of Corrs., 697 F.3d 1320 (11th Cir. 2012) (affirming denial of federal habeas petition), cert. denied, Boyd v. Thomas, 133 S. Ct. 2857 (2013).

68a On September 10, 2014, the Alabama Department of Corrections (“ADOC”) amended its lethal injection protocol, changing the first drug in its three-drug cocktail to midazolam hydrochloride (from pentobarbital) and the second drug to rocuronium bromide (from pancuronium bromide). The following day, the State informed the court and Boyd of these changes through a motion to set Boyd’s execution filed with the Alabama Supreme Court.2 Boyd filed his complaint in this case less than a month later.

The State filed a motion to dismiss Boyd’s complaint on November 10, 2014, but that motion was denied as moot after Boyd filed an amended complaint in accordance with Rule 15 of the Federal Rules of Civil Procedure. (Docs. # 19, 22.) On December 22, 2014, the State moved to dismiss Boyd’s amended complaint, and that motion was fully briefed. (Docs. # 23, 25, 28.) Nonetheless, in March 2015, before the court had an opportunity to resolve the State’s motion, it entered orders staying this case and the six other § 1983 lethal injection cases pending before it until after the United States Supreme Court issued a decision in Glossip v. Gross, a § 1983 case that concerned the constitutionality of Oklahoma’s lethal injection protocol (which also uses midazolam as the first drug in its three-drug lethal injection option) and the pleading and proof standards for Eighth Amendment method-of-execution claims. (Doc. # 34.) As a result of the stay, the

2 When it became apparent that this proceeding would be stayed until the Supreme Court issued its decision in Glossip, the State filed an unopposed motion to hold in abeyance its motion to set Boyd’s execution date, which the Alabama Supreme Court granted on March 27, 2015. (Docs. # 33-1, 39.)

69a court denied the State’s motion to dismiss with leave to refile following a decision in Glossip. (Doc. # 34.)

The Supreme Court issued its decision in Glossip on June 29, 2015. See Glossip v. Gross, 135 S. Ct. 2726 (2015). In rejecting the prisoners’ Eighth Amendment method-of- execution claim, the Glossip Court held that the prisoners had failed “to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims” and that the prisoners had “failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.” Id. at 2731 (emphasis added). In other words, Glossip clarified, among other things, that a successful Eighth Amendment method-of-execution claim “requires a prisoner to plead and prove a known and available alternative” method of execution that “is feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” Id. at 2737-38 (emphasis added) (internal quotation marks omitted).

Following the Supreme Court’s decision in Glossip, on July 13, 2015, the State filed a renewed motion to dismiss Boyd’s amended complaint. (Doc. # 39.) In that motion, the State argues that all of Boyd’s claims are barred by the statute of limitations and that, to the extent any claim is not time-barred, it fails to state a cognizable claim under Rule 12(b)(6). (Doc. # 39.) The State further argues that Boyd lacks standing to assert a Fourteenth Amendment equal protection claim, that Boyd is precluded from obtaining relief due to his inequitable and

70a unreasonable delay in bringing this lawsuit, and that Luther Strange should be dismissed as a defendant from this action because he is not a proper party to Boyd’s claims. (Doc. # 39.)

During briefing on the State’s renewed motion to dismiss, Boyd moved for leave to file a second amended complaint. (Doc. # 45.) Boyd’s motion, which includes as an exhibit a proposed second amended complaint, contends that amendment is necessary so that Boyd can include new allegations regarding an available alternative method of execution, as required by Glossip, and can “incorporate some additional newly discovered information into his claims.” (Doc. # 45, ¶ 3.) The State filed an opposition to Boyd’s motion for leave to amend but addressed in detail only one of Boyd’s claims – his Eighth Amendment method-of-execution claim (Count I).

III. DISCUSSION

Boyd’s proposed second amended complaint asserts seven claims: three Eighth Amendment claims (Counts I III), a Fourteenth Amendment due process claim Count IV), a Fourteenth Amendment equal protection claim (Count V), and two general claims for declaratory and injunctive relief (Counts VI VII). As explained in detail below, the court will not permit Boyd to amend his claims because all of his claims fail as a matter of law, and, therefore, amendment would be futile. That leaves Boyd’s amended complaint before the court, and, for the same reasons the court denied Boyd leave to amend, it will grant the State’s motion to dismiss.

71a A. Boyd’s Motion to Amend

Count I of Boyd’s proposed second amended complaint asserts an Eighth Amendment method-of-execution claim based on the State’s switch from pentobarbital to midazolam hydrochloride as the first drug in its three-drug lethal injection cocktail. Boyd alleges that the “switch to midazolam – a short-acting drug without anesthetizing properties – raises a substantial risk of serious harm to Mr. Boyd, and increases the risk that Mr. Boyd’s execution will be botched and that he will very likely suffer needlessly in violation of his Eighth Amendment rights.” (Doc. # 45-1, ¶ 85.) Boyd further alleges that the State is subjecting him to a substantial risk of serious harm by (1) using an “insufficient, improperly designed and improperly administered procedure for inducing and maintaining loss of consciousness and loss of sensation prior to execution,” and (2) using “chemicals that cause severe pain in the process of causing death, in conjunction with chemicals used specifically and for no other purpose than to mask that severe pain.” (Doc. # 45-1, ¶ 87.) The State contends that amendment of this claim should not be allowed because (1) Boyd unduly delayed in adding a proposed alternative method of execution to his complaint, and (2) Boyd’s proposed alternative methods of execution are insufficient to meet the requirements set forth by Baze and Glossip. (Doc. # 48, ¶¶ 4 9.)

The court is not persuaded by the State’s undue delay argument. The State argues that the “Baze standard was never unclear” and that Boyd has always had the burden under Baze to identify a feasible and available alternative method of execution. (Doc. # 48, ¶ 4.) This is only

72a partially true. While a prisoner asserting an Eighth Amendment method-of-execution challenge has indeed had the burden since Baze to identify and to prove the existence of a feasible and readily available alternative method of execution that significantly reduces a substantial risk of severe pain, see Baze v. Rees, 553 U.S. 35, 51-52 (2008), the requirement that such an alternative be specifically pleaded in the complaint was not clear until the Supreme Court’s recent decision in Glossip. See Glossip, 135 S. Ct. at 2737; see also Opinion on Motion for Leave to Amend, Doc. # 195, Arthur v. Myers, Case No. 2:11-cv-438- WKW, at 11 (M.D. Ala. Jan. 5, 2015) (“[T]he court does not accept the State’s argument that [a known and available alternative method of execution] is a specific pleading requirement set forth by Baze that must be properly alleged before a case can survive a motion to dismiss.”). Following the Supreme Court’s decision in Glossip, which left no doubt that a feasible and available alternative method of execution was a specific pleading requirement for any successful Eighth Amendment method-of-execution claim, Boyd sought leave to amend his complaint to include these allegations less than three weeks after the court lifted the stay of this case. Boyd’s motion is timely.

That being said, the court is persuaded by the alternative reason proffered by the State for disallowing amendment of Boyd’s Eighth Amendment method-of-execution claim, namely, Boyd’s failure to allege in his proposed second amended complaint a feasible and readily available alternative method of execution that satisfies the mandates of Baze and Glossip. As the State correctly notes, the default method of execution in Alabama is lethal injection unless

73a the person sentenced to death affirmatively elects to be executed by electrocution and does so in accordance with the statutory procedures for making such an election. Ala. Code § 15-18- 82.1(a) (b). If electrocution or lethal injection is deemed unconstitutional by the Alabama Supreme Court or the United States Supreme Court, or if the United States Supreme Court declines to review any judgment by the Alabama Supreme Court or the Eleventh Circuit holding a method of execution to be unconstitutional under the United States Constitution, all persons sentenced to death in Alabama “shall be executed by any constitutional method of execution.” Ala. Code § 15-18-82.1(c).

Boyd’s proposed second amended complaint identifies a firing squad and hanging as two feasible and readily available alternatives to Alabama’s current method of execution. But those two methods are not permitted by statute in Alabama. Thus, implementing them without lethal injection and electrocution first being declared unconstitutional would require a statutory amendment. Moreover, the fact that other States have the option to use those methods of execution does not make them feasible or readily available for use by Alabama. In fact, Boyd’s allegations that “other states evaluated and approved [the firing squad and hanging] as method[s] of execution through the legislative process” only belie his argument, as there is no dispute that hanging and the firing squad have not been approved for use as methods of execution by Alabama’s legislature. (See Doc. # 45-1, ¶¶ 89 90.) Finally, although Boyd’s proposed second amended complaint alleges that both hanging and the firing squad would entail a lesser risk of pain than Alabama’s

74a current method of execution (see Doc. # 45-1, ¶¶ 89 90), these allegations are nothing more than bare-bone legal conclusions unsupported by facts.

Simply stated, Boyd has failed to meet his burden under Baze and Glossip to plead a feasible and readily available alternative to Alabama’s current method of execution, and, consequently, his Eighth Amendment method-of- execution claim fails as a matter of law. As a result, the amendment Boyd seeks is futile and will not be permitted.3

The court reaches a similar conclusion with the remainder of Boyd’s claims. An amendment is considered futile when the claim, as amended, would still be subject to dismissal. See Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999). Amendment of Counts II and III of Boyd’s proposed second amended complaint would be futile because these claims are time-barred. “‘All constitutional claims brought under § 1983 are tort actions, subject to the statute of limitations governing personal

3 While the court recognizes that this is Boyd’s first attempt to amend his Eighth Amendment method-of- execution claim following the Supreme Court’s decision in Glossip, it is this very fact that led the court to deny his motion for leave to amend, at least with respect to his method-of-execution claim. This is because, even with the benefit of Glossip, Count I of Boyd’s proposed second amended complaint fails to meet his burden under Baze and Glossip since it proffers two statutorily prohibited methods of execution as feasible and available alternatives to Alabama’s current method of execution. Boyd had the opportunity to present an alternative method of execution that complied with Alabama’s current statutory scheme (i.e., another lethal injection method or electrocution) when he filed his motion for leave to amend, but he chose not to do so.

75a injury actions in the state where the § 1983 action has been brought.” Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011) (quoting Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir. 2008) (quotation omitted)). In Alabama, that limitations period is two years. Id. Claims challenging a method of execution accrue “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). Because Boyd’s conviction and sentence became final in 1998 when the Alabama Supreme Court denied his petition for a writ of certiorari on direct review, the statute of limitations for his § 1983 claims began to accrue on July 31, 2002, when Alabama changed its default method of execution from electrocution to lethal injection and Boyd became subject to execution by lethal injection, and it expired on July 31, 2004, unless there has been a significant change to Alabama’s lethal injection protocol that would restart the statute of limitations clock.

Unlike Count I of Boyd’s proposed second amended complaint, which alleges an Eighth Amendment method-of-execution claim, Counts II and III allege Eighth Amendment violations based on the alleged inadequate training and qualifications of the Alabama Department of Corrections’s (“ADOC”) execution personnel (Count II) and ADOC’s alleged deficient execution facilities and equipment (Count III). Neither of these claims, however, has anything to do with the State’s switch from pentobarbital to midazolam, and Boyd does not allege anything specific about midazolam in either of these claims. They are instead general

76a complaints about ADOC’s execution facilities and personnel.

Although Boyd includes allegations in his proposed second amended complaint in an apparent attempt to demonstrate the timeliness of his remaining Eighth Amendment claims, none of these allegations salvages these claims. For example, Boyd alleges that an unidentified ADOC officer at Holman recently told an unidentified inmate that no one at Holman was qualified or certified to lead an execution, that a different unidentified Holman officer stated that the execution team had not run a drill since 2013, that several members of the execution team had recently quit, and that one execution team member had been hospitalized and another was mentally deficient. Yet, even assuming that these hearsay allegations are true, they do not change the fact that nothing prevented Boyd from challenging the training and qualifications of ADOC’s execution personnel or the sufficiency of the execution facilities and equipment (none of which is midazolam-specific) within Alabama’s two-year statute of limitations, well before midazolam was introduced into the protocol. Accordingly, because Counts II and III of Boyd’s proposed second amended complaint are time-barred, amendment of those claims is futile and will not be allowed.

The same can be said for Counts IV and V of Boyd’s proposed second amended complaint. Count IV of Boyd’s proposed second amended complaint asserts a Fourteenth Amendment due process claim based on the “secrecy” surrounding Alabama’s lethal injection protocol, which, Boyd claims, prevents inmates like him from effectively challenging the State’s lethal injection protocol.

77a Boyd was on death row as of July 31, 2002, when he became subject to execution by lethal injection rather than electrocution. Beginning on that date, Boyd could have challenged the secrecy surrounding Alabama’s lethal injection protocol and the State’s refusal to disclose to him all details about the protocol that will be used to execute him, but he waited more than twelve years to do so. This claim falls well outside of Alabama’s two-year statute of limitations, and the fact that two of the drugs in the protocol were changed in September 2014 does not negate the untimeliness of this claim. See Powell, 643 F.3d at 1305 (“Powell could have challenged the ADOC’s ‘secrecy’ surrounding the method of execution beginning July 31, 2002, as the facts supporting this cause of action should have been apparent to any person with a reasonably prudent regard for his rights. . . . Powell fails to show how his claim about the secrecy surrounding the ADOC’s recent change in lethal injection protocol was revived by the ADOC’s 2011 switch in drugs.”); Arthur v. Thomas, 674 F.3d 1257 (11th Cir. 2012) (implicitly affirming the district court’s summary dismissal of similar Fourteenth Amendment due process secrecy claim as untimely).4

4 Even if the court were to assume that this claim is timely, amendment would still be futile because this claim fails to pass muster under Rule 12(b)(6). See Wellons v. Comm’r, Ga. Dep’t of Corrs., 754 F.3d 1260, 1267 (11th Cir. 2014) (“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 injections drugs will be manufactured,’ as well as ‘the qualifications of the person or persons who will manufacture the drugs.’” (quoting Lewis v. Casey, 518 U.S. 343, 354 (1996))).

78a Count V of Boyd’s proposed second amended complaint suffers from the same fatal flaw. Count V asserts a Fourteenth Amendment equal protection claim based on the State’s failure to perform, or to perform adequately, the consciousness assessment (i.e., the pinch test) during past executions, and Boyd’s contention that the State will fail to perform, or to perform adequately, the consciousness assessment during his execution. Yet, Boyd does not allege any specific details of these past executions, such as the name of the executed inmate or the date of the execution, nor does he make any attempt to allege or to otherwise show how this claim falls within Alabama’s two-year statute of limitations. Accordingly, because both Counts IV and V of Boyd’s proposed second amended complaint are time-barred, amendment of those claims is futile and will not be allowed.

Finally, while the prayer for relief contained in Boyd’s proposed second amended complaint seeks both declaratory and injunctive relief, Boyd also seeks such relief through two separate and distinct causes of action. (See Doc. # 45-1, Sixth Cause of Action/Declaratory Relief, and Seventh Cause of Action/Injunctive Relief.) It is unnecessary to set forth these types of relief as separate causes of action in the complaint. See Hamil v. Vertrees, No. CIV. A. 98-D-508-N, 2001 WL 135716, at *3 n.6 (M.D. Ala. Jan. 10, 2001). Thus, amendment of these “claims” will not be permitted.

B. The State’s Motion to Dismiss

Having concluded that Boyd will not be permitted to amend his complaint, the court turns to the State’s renewed motion to dismiss the amended complaint currently before the

79a court. For the same reasons that Boyd’s proposed amendment was not permitted, the court will grant the State’s motion to dismiss. Boyd’s Eighth Amendment deficient training and qualification claim, his Eighth Amendment deficient facilities and equipment claim, and his Fourteenth Amendment due process and equal protection claims (Counts II – V) are time-barred and due to be dismissed. As to Boyd’s Eighth Amendment method-of- execution claim (Count I), statute of limitations notwithstanding, this claim fails to meet the requirements of Baze and Glossip because Boyd has failed to plead a feasible and available alternative to Alabama’s current method of execution that would significantly reduce a substantial risk of severe pain. Therefore, this claim fails as a matter of law and is due to be dismissed.

IV. CONCLUSION

For the reasons stated herein, it is ORDERED as follows:

1. Boyd’s motion for leave to file second amended complaint (Doc. # 45) is DENIED.

2. The State’s renewed motion to dismiss (Doc. # 39) is GRANTED.

A separate final judgment is forthcoming.

DONE this 7th day of October, 2015.

/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE

80a APPENDIX E

U.S.C.A. Const. Amend. VIII

Amendment VIII. Excessive Bail, Fines, Punishments

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

81a APPENDIX F

42 U.S.C.A. § 1983

§ 1983. Civil action for deprivation of rights

Effective: October 19, 1996

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

82a APPENDIX G

Ala.Code 1975 § 15-18-82.1

§ 15-18-82.1. Method of execution; election of execution by electrocution; constitutionality.

(a) A death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution. The sentence shall be executed pursuant to Section 15-18-82.

(b) A person convicted and sentenced to death for a capital crime at any time shall have one opportunity to elect that his or her death sentence be executed by electrocution. The election for death by electrocution is waived unless it is personally made by the person in writing and delivered to the warden of the correctional facility within 30 days after the certificate of judgment pursuant to a decision by the Alabama Supreme Court affirming the sentence of death or, if a certificate of judgment is issued before July 1, 2002, the election must be made and delivered to the warden within 30 days after July 1, 2002. If a warrant of execution is pending on July 1, 2002, or if a warrant is issued within 30 days after July 1, 2002, the person sentenced to death who is the subject of the warrant shall waive election of electrocution as the method of execution unless a written election signed by the person is submitted to the warden of the correctional facility no later than 48 hours after a new date for execution of the death sentence is set.

(c) If electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court under the Constitution of Alabama of 1901,

83a or held to be unconstitutional by the United States Supreme Court under the United States Constitution, or if the United States Supreme Court declines to review any judgment holding a method of execution to be unconstitutional under the United States Constitution made by the Alabama Supreme Court or the United States Court of Appeals that has jurisdiction over Alabama, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution.

(d) The provisions of the opinion and all points of law decided by the United States Supreme Court in Malloy v. South Carolina, 237 U.S. 180 (1915), finding that the Ex Post Facto Clause of the United States Constitution is not violated by a legislatively enacted change in the method of execution for a sentence of death validly imposed for previously committed capital murders, are adopted by the Legislature as the law of this state.

(e) A change in the method of execution shall not increase the punishment or modify the penalty of death for capital murder. Any legislative change to the method of execution for the crime of capital murder shall not violate Section 22 of Article I of the Constitution of Alabama of 1901.

(f) Notwithstanding any law to the contrary, a person authorized by state law to prescribe medication and designated by the Department of Corrections may prescribe the drug or drugs necessary to compound a lethal injection. Notwithstanding any law to the contrary, a person authorized by state law to prepare, compound, or dispense medication and designated by the Department of Corrections

84a may prepare, compound, or dispense a lethal injection. For purposes of this section, prescription, preparation, compounding, dispensing, and administration of a lethal injection shall not constitute the practice of medicine, nursing, or pharmacy.

(g) The policies and procedures of the Department of Corrections for execution of persons sentenced to death shall be exempt from the Alabama Administrative Procedure Act, Chapter 22 of Title 41.

(h) No sentence of death shall be reduced as a result of a determination that a method of execution is declared unconstitutional under the Constitution of Alabama of 1901, or the Constitution of the United States. In any case in which an execution method is declared unconstitutional, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method of execution.

(i) Nothing contained in this section is intended to require any physician, nurse, pharmacist, or employee of the Department of Corrections or any other person to assist in any aspect of an execution which is contrary to the person’s moral or ethical beliefs.

85a APPENDIX H

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA

ANTHONY BOYD, ) ) Plaintiff, ) ) v. ) CASE NO. ) 2:14-cv-1017-WKW KIM T. THOMAS, ) DEMAND FOR Interim Commissioner of ) JURY TRIAL Alabama Department of ) Corrections, in his official ) AMENDED capacity, and ) COMPLAINT ) WALTER MYERS, ) Warden, Holman ) Correctional Facility, in his ) official capacity, and ) ) LUTHER STRANGE, ) Attorney General of ) Alabama, in his official ) capacity, ) ) Defendants. ) )

NATURE OF ACTION

1. Plaintiff Anthony Boyd is a death row inmate in Alabama. The State of Alabama has moved to set his execution date, which Mr. Boyd has opposed in a separate action. Mr. Boyd brings this action pursuant to 42 U.S.C. § 1983 for violations and threatened violations of his right to be free from cruel and unusual punishment under the Eighth Amendment to the

86a United States Constitution and his right to due process of law and equal protection under the Fourteenth Amendment to the United States Constitution. Without any training or previous experience, Defendants intend to execute Mr. Boyd using a new, untried, and controversial lethal injection protocol, which calls for the sequential administration of three substances: (1) 500 milligrams of midazolam hydrochloride; (2) 600 milligrams of rocuronium bromide; and (3) 240 milliequivalents of potassium chloride. This new protocol, adopted on September 10, 2014, represents a substantial change from Alabama’s prior lethal injection protocol.

2. Alabama’s new protocol violates Mr. Boyd’s rights under the Eighth Amendment because (i) midazolam will not sufficiently induce or maintain loss of consciousness and loss of sensation prior to execution, (ii) the staff charged with administering the protocol is untrained and unqualified, and (iii) the physical facility in which the protocol is to be administered is unfit for that purpose, each and all of which create a substantial risk that Mr. Boyd will suffer serious and unnecessary harm. In addition, the new protocol violates Mr. Boyd’s right under the Fourteenth Amendment to due process of law because, other than the identity and dosage of the drugs in question, all other aspects of the protocol and the administration thereof remain secret, preventing Mr. Boyd from assessing the constitutionality of the protocol. Further, the new protocol violates Mr. Boyd’s right under the Fourteenth Amendment to equal protection of the law because Alabama has failed to apply certain aspects of the protocol, including a consciousness assessment, on a consistent basis. Accordingly, Mr. Boyd seeks both declaratory and injunctive relief that Defendants’ planned execution of him

87a using the new protocol violates his federal constitutional rights.

JURISDICTION AND VENUE

3. Jurisdiction over this matter arises under 42 U.S.C. § 1983, 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3), 28 U.S.C. § 2201, and 28 U.S.C. § 2202. This action arises under the Eighth and Fourteenth Amendments to the United States Constitution.

4. Venue is appropriate in the Middle District of Alabama under 28 U.S.C. § 1391(b).

PARTIES

5. Anthony Boyd is a United States citizen and resident of the State of Alabama. He is currently a prisoner under the supervision of Defendants in this District.

6. Defendant Kim Thomas is the Interim Commissioner of the Alabama Department of Corrections (“DOC”), and is responsible for establishing, maintaining, and enforcing Alabama’s execution protocols and procedures.

7. Defendant Walter Myers is the Warden of the Holman Correctional Facility in Atmore, Alabama, where Mr. Boyd is currently incarcerated and where Alabama conducts its executions by lethal injection. Defendant Myers is responsible for all such executions.

8. Defendant Luther Strange is the Attorney General of the State of Alabama, and, by virtue of his office, he is responsible for seeking to set execution dates for condemned

88a inmates, including Mr. Boyd, and has indeed sought to set an execution date for Mr. Boyd.

9. All Defendants are being sued in their official capacities. The Defendants are citizens and residents of the State of Alabama.

10. At all times relevant to this action, Defendants acted under color of state law and their actions constituted state action.

JUSTICIABLE CASE OR CONTROVERSY

11. There is a real and justiciable case or controversy between the parties.

12. No administrative remedies exist that could address the challenged constitutional violations, and even if there were, exhaustion would be futile inasmuch as Alabama has maintained that the new midazolam protocol is lawful.

13. Under 42 U.S.C. § 1983, Mr. Boyd challenges the constitutionality of Alabama’s new lethal injection protocol, the secrecy in which it was developed and maintained, and the administration of the protocol by the officers charged with that task.

14. Absent judicial intervention, Mr. Boyd will be executed pursuant to Defendants’ arbitrary and capricious lethal injection procedures. There is a justiciable case or controversy regarding the unconstitutionality of these lethal injection procedures, the unnecessary risk of pain and suffering inherent in the procedures, the secrecy Defendants have employed to keep their lethal injection protocol confidential without justification, and Defendants’ lack of training and adequate

89a facilities and equipment for constitutional capital punishment. FACTS

15. Mr. Boyd was convicted of capital murder in the Circuit Court of Talladega County, Alabama, on March 16, 1995, and sentenced to death that same day.

16. On direct appeal, the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Mr. Boyd’s conviction and death sentence. After this, the United States Supreme Court denied Mr. Boyd’s petition for writ of certiorari in 1998. Subsequently, Mr. Boyd filed various petitions for post-conviction relief in the state and federal courts, each of which proved unsuccessful.

I. ALABAMA’S LETHAL INJECTION PROTOCOL

A. The Statutory and Regulatory Status Of Lethal Injection In Alabama

17. Alabama employs lethal injection as its default mode of execution. Alabama law merely states that death-sentenced inmates are to be executed by “lethal injection.” Ala. Code §§ 15-18-82 to 82.1. Alabama law does not prescribe specific drugs, dosages, drug combinations, or sequences or the manner of administering lethal chemicals to carry out executions. Nor does it prescribe any certification, training, or licensing required of those who participate in either the supposed anesthesia process or the execution.

18. Alabama’s lethal injection protocol is not subject to the Alabama Administrative

90a Procedures Act (“AAPA”), Chapter 22 of Title 41 of the Code of Alabama. The policies and procedures of the Alabama Department of Corrections (“DOC”) for execution of persons sentenced to death are exempt from the AAPA. Ala. Code § 15-18-82.1(g).

19. Defendants have adopted a written and confidential protocol for administering capital punishment by lethal injection. Under Ala. Code § 15-18.82.1(g), the policies and procedures of the DOC for execution of persons sentenced to death are confidential, and Mr. Boyd can never be sure that the secret procedures used to execute him will comply with constitutional requirements. Many states’ protocols are publicly available, but Defendants keep their lethal injection protocol confidential and have proffered no justification for keeping it from public view. In 2012, the Eleventh Circuit Court of Appeals noted that a Fourteenth Amendment challenge concerning the “veil of secrecy that surrounds Alabama’s execution protocol” was sufficient to withstand a motion to dismiss. See Arthur v. Thomas, 674 F.3d 1257, 1263 (11th Cir. 2012).

20. Under Alabama law, Defendants are responsible for carrying out executions, all of which take place at Holman Correctional Facility.

21. Defendants’ former lethal injection protocol used a series of three drugs, administered sequentially. From April 26, 2011 until the implementation of the newly-adopted protocol, Defendants conducted lethal injections by successive injections of pentobarbital, pancuronium bromide, and potassium chloride.

22. The purpose of administering three sequential injections of three different chemicals

91a in execution by lethal injection is as follows: (i) the first drug’s purpose is to anesthetize the inmate; (ii) the second drug’s purpose is to paralyze the inmate’s muscles and stop the inmate’s breathing, and (iii) the third and final drug’s purpose is to stop the inmate’s heart. The potential for severe pain and suffering is extremely high in both the second and third stages of execution, which is why the first injection of anesthesia is vitally important. Failing a proper dose of the first drug that would render the inmate anesthetized and unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of rocuronium bromide and pain from the injection of potassium chloride. If the anesthesia element is inadequate or administered improperly, the inmate is likely to retain consciousness and be able to feel the tremendous pain of being slowly killed by the injection of the second and third drugs and (by virtue of the second drug’s paralytic effects) unable to communicate his agony.

B. Alabama Substantially Changes Its Lethal Injection Protocol

23. On September 10, 2014, the State of Alabama adopted a new lethal injection protocol. The State announced this new protocol for the first time on September 11, 2014, when it filed motions asking the Alabama Supreme Court to set execution dates for nine inmates, including Mr. Boyd.

24. The State’s newly adopted and untested lethal injection protocol represents a substantial change from the prior protocol. It replaces pentobarbital with midazolam

92a hydrochloride as the first drug in the three-drug sequence. 25. Midazolam is materially different from pentobarbital. It belongs to an entirely different class of drugs. Midazolam is a benzodiazepine, while pentobarbital is a barbiturate. Benzodiazepines are in no way interchangeable with barbiturates and have entirely separate indications and medical uses. No medical practitioner would substitute a benzodiazepine for a barbiturate, or vice versa.

1. Benzodiazepines Are Substantially Different From Barbiturates

26. Benzodiazepines are a class of drugs that possess properties that are useful in particular medical conditions and physical states. Chiefly, they are used to reduce temporary anxiety through sedation and to produce beneficial amnesia. They include drugs such as diazepam (Valium), lorazepam (Ativan), and alprazolam (Xanax). Chemical sedation is the result of a compound called an inhibitory neurotransmitter, which acts on brain tissue to produce a sedation effect. In the human brain, the chief inhibitory neurotransmitter is called gamma-Aminobutyric acid (“GABA”). GABA binds to a GABA A receptor in the brain to create the sedation effect.

27. Benzodiazepines work by improving the function of GABA. They bind to a specific site on the GABA A receptor like a key in a lock, “opening” the receptor to make it more receptive to GABA. Different benzodiazepines have different affinities for the GABA A receptor, causing different effects.

93a 28. In clinical use, benzodiazepines are typically administered to sedate a patient prior to the induction of anesthesia. Further drugs are then administered to anesthetize the patient.

29. Barbiturates, on the other hand, are typically used to produce general anesthesia during surgery. Although they work via GABA, they act on a separate and distinct binding site than do benzodiazepines. A benzodiazepine and a barbiturate could be administered in tandem and each would produce its own distinct effect.

30. Barbiturates hold the GABA A receptor open for an extended period of time, causing a pronounced and powerful sedation and respiratory depression. Benzodiazepines allow for entry of GABA through brief, repeated openings of the GABA A receptor, producing a significantly lesser degree of sedation intensity and respiratory depression.

31. Moreover, the lock-and-key model, in which a benzodiazepine binds to a specific receptor, creates a “ceiling effect,” meaning that dosage and effect are not linearly related. Once the available GABA A receptors are occupied by a benzodiazepine, additional amounts of benzodiazepine will not produce additional effects. Put another way, once there is a key in every lock, increasing the number of keys will not increase the number of open doors. For this reason, death from increased dosages of benzodiazepines is incredibly rare. Indeed, midazolam and other benzodiazepines were designed with this safety profile in mind.

32. Barbiturates are not subject to a ceiling effect. They can and will cause death in sufficient dosages.

94a 2. Midazolam Is Not An Anesthetic

33. Midazolam (sold under the brand name Versed) is the shortest-acting benzodiazepine on the market. Its effects wear off more quickly than every other benzodiazepine.

34. The FDA has approved the use of midazolam in a dosage of 1-5 milligrams injected intravenously to reduce anxiety or produce sedation. Midazolam is not FDA-approved as an agent to induce anesthesia because it has been shown to be unreliable in that regard.

35. Midazolam has no analgesic (i.e. pain-relieving) effect. A person who has been given midazolam can feel and experience pain just as if he had not received midazolam.

36. When a patient is given midazolam in a pre-surgical setting, he is very likely to retain consciousness. He will speak and respond to normal interaction. He may even be able to carry on a conversation. He will continue to be sensate to pain and experience anxiety in the moment.

37. Although it is not likely to produce unconsciousness, midazolam is used in a surgical setting because it carries an amnesic effect. It can produce amnesia from the point of injection forward, meaning that a patient might not later recall any post-administration anxiety he suffered. Midazolam is a sedative, not an anesthetic. Anesthesia and sedation are not synonymous. Anesthesia is a temporary state consisting of unconsciousness, loss of memory, lack of pain, muscle relaxation, and the suppression of adverse autonomic responses. It typically consists of one or more drugs (such as

95a general anesthetics, hypnotics, sedatives, paralytics, narcotics, and analgesics), each of which serves a specific purpose in creating a safe anesthetic.

38. Sedation is a component of anesthesia. A sedated person can retain awareness and can experience pain, unlike someone who is properly anesthetized to lose consciousness and sensation.

C. The Constitutional Defects In Alabama’s New Protocol

39. It is very likely that Mr. Boyd will experience unnecessary suffering and pain if he is executed subject to the State’s new lethal injection protocol. Midazolam is wholly unsuitable as the first drug in a three-drug lethal injection protocol because it will not render Mr. Boyd unconscious, numb, and insensate from the administration of the painful second and third drugs, rocuronium bromide and potassium chloride.

40. Rocuronium bromide is a paralytic. It paralyzes voluntary muscles, including the diaphragm, and stops respiration, but does not affect consciousness or the perception of pain. Absent an inmate’s complete loss of consciousness and sensation, the rocuronium bromide serves only to mask the inmate’s pain and suffering from observers. It does not prevent the inmate from suffering a painful death by asphyxiation.

44. Potassium chloride disrupts the normal electrical activity of the heart and stops it from pumping blood, thereby causing cardiac arrest. As it travels in the bloodstream from the site of injection towards the heart, potassium

96a chloride activates all of the nerve fibers inside the vein, causing a burning sensation as it travels through the body and destroys the internal organs. Absent complete anesthesia, the injection of potassium chloride causes excruciating pain that is agonizing for a recipient.

45. Midazolam cannot sufficiently anesthetize Mr. Boyd from the excruciating effects of rocuronium bromide and potassium chloride. As described above, midazolam is a sedative, not an anesthetic. It is not likely to produce unconsciousness in an inmate and will not render an inmate insensate to pain, especially in the execution context.

46. The increased dosage of midazolam proposed by the State does not change this fact. No clinical trial or testing has ever been performed to determine the effect of a dosage of midazolam such as that which the State proposes administering. Anyone who testifies concerning the effects of such dosages is doing so based on pure speculation. Indeed, given the medically- accepted understanding of the way in which midazolam and other benzodiazepines work, i.e., the lock-and-key mechanism, the dosage proposed by the State will not necessarily produce effects significantly different from those produced by the FDA-approved dosage administered in surgical settings.

47. Moreover, there are vast differences between a surgical setting and an execution setting. An inmate facing death is likely to experience anxiety, desperation, sadness, uncertainty, and other emotions more acutely and to a different degree than would a surgical patient. Accordingly, what is known about the use of midazolam in the medical setting is in no way transferable to the use of midazolam for

97a executions. It is impossible to extrapolate from the FDA’s labeled indications for midazolam to predict the effect of the drug in an execution setting.

48. Additionally, because midazolam lacks analgesic properties, there is a significant risk that, even if Mr. Boyd does lose consciousness after administration of midazolam, the pain and noxious stimuli from the second and third drugs (and the attendant anxiety) will arouse Mr. Boyd to consciousness during the lethal injection procedure.

49. Moreover, medical evidence shows that surgical patients continue to experience pain after losing consciousness. Their eyes may stay closed, but their heart rate, blood pressure, and stress hormone levels will increase. Upon administration of a pain reliever, those conditions will commonly abate, indicating that the “unconscious” patient was suffering pain.

50. Further, the State’s proposed method to determine whether an inmate has been rendered sufficiently unconscious and insensate to pain is wholly ineffective. This procedure, called a “pinch test” because it involves pinching an inmate on his trapezius muscle or elsewhere on his body after midazolam is administered, has no basis in medical theory and practice and is never used in a medical setting to assess consciousness or sensitivity to pain. It is a creation of the Department of Corrections. Moreover, the sensation caused by a pinch is in no way comparable to the excruciating pain and anxiety that Mr. Boyd would experience upon administration of the second and third drugs. Put bluntly, death by asphyxiation is not the same as being pinched. Even if Mr. Boyd failed to react to the State’s “pinch test,” that

98a would in no way indicate that he would be unconscious of or insensate to the effects of the second and third drugs.

51. Additionally, it would be impossible to reliably determine the depth of Mr. Boyd’s sedation under the State’s new protocol. The administration of rocuronium bromide, which paralyzes all of the muscles that would otherwise move when an inmate is in pain, precludes an accurate assessment of consciousness or sensitivity to pain. By administering rocuronium bromide after midazolam, the State creates a substantial and unacceptable risk that the inmate, paralyzed and unable to breathe, will die slowly from suffocation while remaining conscious and aware but unable to move or communicate. Because the use of midazolam leads to a significant risk that Mr. Boyd will not be unconscious and insensate during the lethal injection procedure, the use of rocuronium bromide is more dangerous under Alabama’s newly adopted lethal injection protocol than it was under its prior protocols.

52. Defendants have selected midazolam for its availability rather than its effectiveness. They did not conduct a reasoned analysis to determine whether midazolam will prevent inmates from suffering severe and substantial pain from the last two drugs in the lethal injection protocol. As such, Defendants have ignored the substantial risk of inflicting severe pain on Mr. Boyd. Alabama’s decision to use an untested and unreliable first drug in its newly- adopted three-drug lethal injection protocol impermissibly increases the substantial risk of severe pain to Mr. Boyd, in violation of his Eighth Amendment right to be free from cruel and unusual punishment.

99a II. BOTCHED MIDAZOLAM EXECUTIONS IN OTHER STATES THIS YEAR

53. Other states which have recently instituted new lethal injection protocols using midazolam have experienced a number of executions in which recipients of midazolam showed symptoms of experiencing severe pain over prolonged periods of time during the execution process. The states in which these botched executions occurred have entered stays prohibiting further executions under the midazolam protocols.

54. On January 16, 2014, Dennis McGuire was executed at the Southern Ohio Correctional Facility by an untested two-drug combination of midazolam and hydromorphone. In what was deemed a “failed, agonizing experiment” by McGuire’s attorney, the execution was the longest one in Ohio since that state resumed capital punishment in 1999. After being injected with the cocktail intravenously, McGuire was still for nearly five minutes before he emitted a loud gasping noise which continued for several minutes. During this period his mouth opened and closed several times as his stomach rose and fell in an apparent effort to gasp for air, an effort termed by an expert as “air hunger,” or an acute shortness of breath. After several minutes had elapsed, McGuire made a coughing sound and remained still until he was pronounced dead ten minutes later after a total of twenty five minutes. The execution was much longer and caused a large number of noises which were not typical under Ohio’s previous execution method. Shortly after Mr. McGuire’s execution, a federal judge stayed all executions in Ohio until at least February 2015.

100a 55. On April 29, 2014, Clayton Lockett was executed at the Oklahoma State Penitentiary in McAlester by a three-drug combination of midazolam, vecuronium bromide, and potassium chloride. This marked the first time in Oklahoma history that this specific cocktail was used on a human for the purposes of a lethal injection. Following the intravenous administration of midazolam, Lockett was declared unconscious and the vecuronium bromide was inserted into his leg. Minutes later, Lockett began to writhe, twitch, and convulse under the restraints while exhaling loudly. Witnesses stated Lockett raised his head and uttered “oh man,” and “something’s wrong,” as he continued to thrash around on the gurney. This prompted prison officials to close the blinds to viewers and after an investigation the execution team discovered what was termed a “vein failure.” Forty three minutes after the execution began, and after a belated order to stop administering the drugs was issued, Lockett was pronounced dead due to a heart failure from protracted lack of oxygen. A stay on executions was issued shortly after Lockett’s botched procedure in Oklahoma.

56. On July 23, 2014, Joseph Wood was executed at Florence State Prison in Arizona by the same two-drug combination of midazolam and hydromorphone used to execute Dennis McGuire. At 1:52 PM, the drug cocktail was administered intravenously in an execution which was expected to take around ten minutes. After ten minutes had elapsed, Wood’s jaw dropped and he began to gasp while according to witnesses his chest heaved upwards of 600 times over the next hour and fifty minutes. Wood was declared dead at 3:50 PM. While one injection of 50 milligrams of both midazolam and hydromorphone was expected to provide a

101a sufficient dosage to kill Wood, the executioners used fifteen separate doses while Wood was struggling for air over the extended period of time he remained alive. The execution is believed to be one of, if not the longest executions in American history, allowing Wood’s attorneys to file an appeal in United States District Court during the execution in an attempt to stop the procedure. Executions have been put on hold in Arizona while Governor Jan Brewer conducts an investigation on the lethal injection drugs and protocol.

57. As these examples demonstrate, the use of midazolam in executions raises the likelihood that inmates will suffer substantial and severe pain over prolonged periods of time.

III. THE UNCONSTITUTIONAL SECRECY SURROUNDING ALABAMA’S LETHAL INJECTION PROTOCOLS

58. As described above, Alabama refuses to release any information concerning its lethal injection protocol other than the type and dosage of the three drugs used. Details of the protocol left to question include, without limitation: the number of officers assigned to administer the protocol; the roles of each such officer; the minimum qualifications officers must demonstrate to serve on the execution team; any training or certifications such officers must complete; the frequency and nature of any drilling or practice such execution team must perform; what equipment must be present and available at the execution; and the presence of any trained medical personell at the execution. Defendants’ lethal injection protocols have never been reviewed on the merits by any court, and

102a inmates and their counsel are routinely denied even access to such protocol.

59. Defendants’ secrecy denies Mr. Boyd and other death-row inmates the ability to effectively enforce their Eighth Amendment rights through the judicial system. Without notice of the procedures, inmates are left to allege claims based solely on the limited information occasionally made public at the State’s discretion. Given the State of Alabama’s grant of unfettered and unsupervised discretion to the DOC in implementing a lethal injection protocol (see Ala. Code § 15-18-82 to 82.1), Defendants could change the State’s procedures for any reason, without any oversight, and without any notice to the public or to the condemned.

60. The combination of these factors results in a system where Defendants receive no medical, judicial, or public oversight – indeed, no oversight of any sort – of their execution procedures. Nothing prevents Defendants from changing the lethal injection protocol up until the moment of (or during) an inmate’s execution. Accordingly, even if a court were to find that Alabama’s lethal injection protocol is constitutional based on a review on the merits, which has yet to happen, there is simply no way of knowing that this same protocol will be the one actually used to carry out the execution.

61. Alabama’s secrecy effectively thwarts the availability of judicial review and violates due process. Theoretically, one hour before an execution is carried out, the DOC could unilaterally decide to lethally inject a condemned inmate with any form of poison sufficient to effectuate death, even if the poison results in excruciating pain, and where painless alternatives are available. Mr. Boyd has a legally

103a cognizable right to be free from such cruel and unusual punishment under the Eighth Amendment. In order to effectuate and protect that legally cognizable interest, the Fourteenth Amendment guarantees the right to notice of – and an opportunity to be heard regarding – the State of Alabama’s lethal injection protocol that will be used to carry out his sentence.

62. The State has no rational basis for keeping its lethal injection protocol(s) secret. The secrecy serves only to engender suspicion. Indeed, numerous other states, including Arizona, California, Florida, Maryland, Oklahoma, Oregon, and Washington, make their lethal injection protocols publicly available. Other states, including Arkansas, Delaware, Georgia, Missouri, Ohio, and the federal government have made their protocols public through litigation. Moreover, several other states are required to go through the administrative process and promulgate their lethal injection protocols as rules; many states do not exempt their lethal injection protocol from their AAPA equivalents.

63. Defendants claim that their protocol for carrying out Alabama’s statutory method of execution induces death only after a condemned prisoner has been rendered unconscious and unable to experience pain. But recent actions by Defendants to modify the protocol with no notice or opportunity to respond by Mr. Boyd, any other death row inmate, or the citizens of the State of Alabama, demonstrate that an inmate can never be sure that his or her execution – the protocol for which may change at any time up to the minute of execution – will comport with the requirements of the Constitution or fundamental standards of decency.

104a 64. Because Defendants have unfettered discretion to change the lethal injection protocol, nothing prevents Defendants from changing Alabama’s protocol up until or even during an inmate’s execution. Even if a court were to uphold the constitutionality of Alabama’s protocol based on a review of the merits, there is simply no way of knowing that this same protocol will actually be used to carry out the execution. Thus, no person under sentence of death in Alabama can ever know with certainty the details and steps of the protocol that will be used to execute him.

65. It would be a violation of Mr. Boyd’s constitutional rights to execute him before the protocol the State intends to use on him is (i) disclosed to Mr. Boyd and his counsel and (ii) reviewed and adjudicated by the courts after an evidentiary hearing.

66. Moreover, without a clear and wholly-public execution protocol, Mr. Boyd has no assurance that the State will follow the same protocol with him that it uses on other inmates. In fact, as reflected in reported decisions from the Eleventh Circuit, the State has often failed to follow certain aspects of its protocol, such as performing a consciousness assessment, with consistency. The failure to apply a clear and consistent lethal injection protocol would violate Mr. Boyd’s constitutional right to equal protection of the laws.

IV. DEFENDANTS’ LACK OF TRAINING AND QUALIFICATIONS

67. The State of Alabama has provided no indication that its new lethal injection protocol requires the personnel who perform the tasks of purportedly anesthetizing and executing the

105a inmate to have any minimum qualifications or expertise. Training, experience, and supervision are essential to ensuring that an execution will be humane and comport with the requirements of the Eighth Amendment. Defendants do not adequately ensure that the individuals responsible for inducing and maintaining unconsciousness are credentialed, licensed and proficient in the knowledge, skills, and procedures necessary to establish an appropriate plane of anesthesia throughout the lethal injection process, notwithstanding that anesthesia is a complex medical procedure that requires extensive education, training, and expertise if it is to be performed correctly. The absence of credentialed, licensed, and proficient medical personnel and lack of procedural safeguards increases the risk that an inmate will not be unconscious and insensate prior to rocuronium bromide-induced paralysis, leaving the inmate exposed to the suffocation caused by the second drug and the excruciating internal burning caused by the third drug, potassium chloride.

68. The State has disclosed no guidelines upon which the members of the execution team, and upon which Defendants, can rely if they are required to exercise their discretion during the execution process. There is no indication of a plan in place if foreseeable problems arise during Mr. Boyd’s execution.

69. Indeed, it does not appear that execution personnel, including Defendants, are properly or adequately trained. A few days after the State of Alabama announced the newly adopted protocol, a DOC officer at Holman Correctional Facility and former member of Holman’s execution squad, stated to an inmate

106a that no one on Defendant Myers’ staff was qualified or certified to lead an execution.

70. As recently as September 18, 2014, a different DOC officer at Holman, also a member of the execution squad, stated that the squad had not run a drill since the execution of Andrew Lackey on July 25, 2013, and that since then, several members of the execution squad had departed, and remaining personnel were left unaware as to who would carry out each duty. The current execution team is wholly unprepared and inadequately trained as to constitutional execution procedures, and this increases the risk that Mr. Boyd’s execution will be substantially and unconstitutionally painful. Further, it appears that at least one of the execution squad members at Holman seems to suffer from some sort of mental handicap or mental deficiency such that he would be unable to competently perform duties as part of the execution squad.

71. Defendants have not offered any training to the execution personnel, and the facility in which executions occur is drastically lacking in equipment and environment such that condemned inmates have a substantially greater risk of serious harm, especially in combination with the newly adopted and untried drug protocol.

72. With these deficiencies in the training and qualifications of Defendants’ execution squad, there is a substantial risk that they will be incapable of reacting effectively and efficiently to foreseeable contingencies, thus increasing the danger that Mr. Boyd will suffer needless and substantial harm pain.

107a V. DEFENDANTS’ DEFICIENT FACILITIES AND EQUIPMENT

73. Defendants have not demonstrated that they possess the correct medical equipment to perform a constitutionally-acceptable execution. There is no indication, for instance, that Defendants have at hand the equipment necessary to achieve and maintain venous access in the event of a complication. In the September 4, 2014 Report from Oklahoma’s botched execution of Clayton Lockett, it was discovered that the execution team did not possess the appropriately sized needles for a femoral IV placement nor a venous ultrasound machine to assist in locating a vein in the inmate. Like the Oklahoma protocol in place during Mr. Lockett’s execution, there is nothing to suggest that Defendants’ protocol addressed entirely foreseeable venous access problems.

74. Further, the physical condition of Defendants’ facilities at Holman, which is the only state facility in Alabama used for executions, is highly questionable. Shortly before the newly adopted protocol was announced, reports indicate that execution chamber at Holman was in decaying condition, including water infiltration that caused damage to the ceiling, floor, and viewing window. The equipment in the chamber was moved out of place, perhaps as a result of this leak, and may also have been damaged. The chamber room has previously flooded. Such conditions are insufficient for performing a constitutional execution because the disrepair and lack of necessary equipment create a substantial risk of serious harm to Mr. Boyd and other condemned inmates.

108a 75. The absence of standardized procedures regarding administration of the execution drugs, the lack of adequate medical qualifications for the personnel involved in the execution process, and the lack of necessary equipment at Defendants’ facility, all create a grave and substantial risk that Mr. Boyd will be conscious throughout the execution process, and, as a result, will experience an excruciatingly painful and protracted death. Moreover, Defendants’ secrecy surrounding the procedures of Alabama executions creates a serious and unnecessary risk of pain and suffering for Mr. Boyd, as he can never know what Defendants are going to do during his execution. Mr. Boyd has a legally cognizable right to be free from such cruel and unusual punishment under the Eighth Amendment.

FIRST CAUSE OF ACTION

Violation of Mr. Boyd’s Right to Be Free from Cruel and Unusual Punishment Pursuant to the Eighth Amendment to the United States Constitution (Newly Adopted Lethal Injection Protocol & Use of Midazolam)

76. Mr. Boyd repeats and realleges paragraphs 1 through 59 as though fully set forth herein.

77. The Eighth Amendment guarantees every person the right to be free from cruel and unusual punishment. Cruel and unusual punishment is inflicted where a method of execution creates a substantial risk of serious harm. Upon information and belief, although it is possible to conduct executions in a

109a constitutionally compliant manner, Defendants have chosen not to do so.

78. The switch to midazolam – a short- acting drug without anesthetizing properties – raises a substantial risk of serious harm to Mr. Boyd, and increases the risk that Mr. Boyd’s execution will be botched and that he will very likely suffer needlessly in violation of his Eighth Amendment rights.

79. Defendants are being deliberately indifferent to the conditions as alleged herein, all of which conditions pose a substantial risk of serious harm to Mr. Boyd and other similarly- situated inmates. This creates an objectively intolerable risk of harm. Such risk of harm is sure or very likely to cause Mr. Boyd needless suffering in violation of his Eighth Amendment rights.

80. Defendants are acting under color of Alabama law in undertaking to execute Mr. Boyd by lethal injection through (i) the use of an insufficient, improperly designed and improperly administered procedure for inducing and maintaining loss of consciousness and loss of sensation prior to execution and (ii) the use of chemicals that cause severe pain in the process of causing death, in conjunction with chemicals used specifically and for no other purpose than to mask that severe pain, such that there is substantial risk that Mr. Boyd will suffer serious harm in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

110a SECOND CAUSE OF ACTION Violation of Mr. Boyd’s Right to Be Free from Cruel and Unusual Punishment Pursuant to the Eighth Amendment to the United States Constitution (Maladministration of Execution – Training and Qualification)

81. Mr. Boyd repeats and realleges paragraphs 1 through 64 as though fully set forth herein. Neither the execution squad personnel nor the Defendants’ facilities are even remotely prepared to perform a constitutionally- satisfactory execution. The last drill the execution squad performed was over one year ago, and since that point, several squad members have left and been replaced by untrained, unqualified, and unfit personnel without the necessary qualifications and certifications. Without a competent and trained execution squad, and without a concrete and consistent execution protocol, Mr. Boyd is highly likely to suffer from Defendants’ maladministration of his execution in violation of his Eighth Amendment right to be free from cruel and unusual punishment.

82. Due to the deficiencies identified and discussed herein, there is a substantial risk of maladministration of Mr. Boyd’s execution which will cause him serious harm and thus violate his Eighth Amendment right to be free of cruel and unusual punishment.

83. Defendants are being deliberately indifferent to the conditions as alleged herein, all of which conditions pose a substantial risk of serious harm to Mr. Boyd and other similarly situated inmates. This creates an objectively intolerable risk of harm. Such risk of harm is

111a sure or very likely to cause Mr. Boyd needless suffering in violation of his Eighth Amendment rights. THIRD CAUSE OF ACTION

Violation of Mr. Boyd’s Right to Be Free from Cruel and Unusual Punishment Pursuant to the Eighth Amendment to the United States Constitution (Maladministration of Execution – Deficient Facilities and Equipment)

84. Mr. Boyd repeats and realleges paragraphs 1 through 68 as though fully set forth herein.

85. Defendants’ execution facility is in dire need of attention to its equipment and to its cleanliness and fitness for a constitutional execution, as Defendants’ personnel and facilities are wholly lacking the necessary skills and environment. Due to the deficiencies identified and discussed herein, there is a substantial risk of maladministration of Mr. Boyd’s execution which will cause him serious harm and thus violate his Eighth Amendment right to be free of cruel and unusual punishment.

86. Defendants are being deliberately indifferent to the conditions as alleged herein, all of which conditions pose a substantial risk of serious harm to Mr. Boyd and other similarly situated inmates. This creates an objectively intolerable risk of harm. Such risk of harm is sure or very likely to cause Mr. Boyd needless suffering in violation of his Eighth Amendment rights.

112a FOURTH CAUSE OF ACTION Violation of Mr. Boyd’s Right to Due Process of Law Pursuant to the Fourteenth Amendment to the United States Constitution

87. Mr. Boyd repeats and realleges paragraphs 1 through 72 as though fully set forth herein.

88. Procedural due process imposes constraints on governmental decisions that deprive individuals of “liberty” or “property” interests within the meaning of the Due Process Clause of the Fourteenth Amendment.

89. Mr. Boyd has such a liberty or property interest, which is an entitlement to notice and an opportunity to be heard with respect to any modification or amendment to Alabama’s lethal injection protocol where such modification or amendment impacts Mr. Boyd, which is fundamentally fair. Defendants have interfered with such rights as alleged herein.

90. Behind a veil of secrecy, Defendants have adopted and revised processes and procedures for carrying out executions in the State of Alabama. The DOC is specifically exempted from rulemaking requirements regarding lethal injection. Inmates may not file grievances respecting this process, and the protocol is kept secret. Because of the unfettered and unsupervised discretion of Defendants regarding the State’s lethal injection protocol and procedures, no inmate can ever be certain of the protocol and procedures that the State will use to carry out his sentence. Absent notice of the protocols, procedures, and training involved in the execution process, and any modifications thereto, and the opportunity to comment on or challenge these provisions, Defendants are

113a violating Mr. Boyd’s right to due process of law pursuant to the Fourteenth Amendment to the United States Constitution.

91. Moreover, Mr. Boyd and inmates like him are prevented from effectively challenging the State’s lethal injection protocol because the State goes to great lengths to maintain the secrecy of the protocol during litigation challenging that protocol.

92. Because Alabama can secretly change its lethal injection protocol at any time, Mr. Boyd is denied the opportunity to be notified of changes to his manner of execution. Such secrecy further impedes Mr. Boyd’s ability to challenging the State’s lethal injection protocol, in violation of Mr. Boyd’s Fourteenth Amendment due process rights.

93. Defendants have violated Mr. Boyd’s right to review and challenge Alabama’s modified protocol changes as they apply to him, in violation of Mr. Boyd’s Fourteenth Amendment due process rights.

94. Defendants have violated Mr. Boyd’s Fourteenth Amendment rights to due process of law. FIFTH CAUSE OF ACTION Violation of Mr. Boyd’s Right to Equal Protection of the Law Pursuant to the Fourteenth Amendment to the United States Constitution

95. Mr. Boyd repeats and realleges paragraphs 1 through 80 as though fully set forth herein.

96. Defendants will treat Mr. Boyd disparately from other inmates on death row in Alabama by substantially deviating from

114a Alabama’s lethal injection protocol in a manner that significantly reduces inmate safeguards.

97. Alabama’s lethal injection protocol requires pinching the inmate as the final consciousness check after the inmate has been injected with the first of the three drugs, and prior to the injection of the second and third drugs. In past executions, the State of Alabama failed to perform the pinch test. Any such deviation in Mr. Boyd’s execution would violate Mr. Boyd’s right to equal protection of the laws under the Fourteenth Amendment.

98. In addition to Defendants’ past significant deviations from protocol, the secrecy of Alabama’s lethal injection protocol heightens the risk that additional significant deviations from that protocol could occur such that they disparately treat Mr. Boyd in violation of his equal protection rights under the Fourteenth Amendment.

99. There exists no rational relation to a legitimate state interest for such disparate treatment.

100. In light of the allegations herein, Defendants have violated Mr. Boyd’s Fourteenth Amendment right to equal protection of the law.

SIXTH CAUSE OF ACTION Declaratory Relief

101. Mr. Boyd repeats and realleges paragraphs 1 through 86 as though fully set forth herein.

102. There is a real and justiciable case or controversy between the parties.

115a 103. No administrative remedies exist that could address the challenged constitutional violations, and even if there were, exhaustion would be futile inasmuch as Alabama has maintained that the new midazolam protocol is lawful.

104. Under 42 U.S.C. § 1983, Mr. Boyd challenges the constitutionality of Alabama’s new lethal injection protocol, the secrecy in which it was developed and maintained, and the administration of the protocol by the officers charged with that task.

105. Absent judicial intervention, Mr. Boyd will be executed pursuant to Defendants’ arbitrary and capricious lethal injection procedures. There is a justiciable case or controversy regarding the unconstitutionality of these lethal injection procedures, the unnecessary risk of pain and suffering inherent in the procedures, the secrecy Defendants have employed to keep their lethal injection protocol confidential without justification, and Defendants’ lack of training and adequate facilities and equipment for constitutional capital punishment.

106. This controversy is definite and concrete and touches the legal relations of Mr. Boyd and Defendants, who have adverse legal interests.

107. Mr. Boyd seeks the Court’s conclusive declaration that Defendants’ intended actions violate Mr. Boyd’s Eighth and Fourteenth Amendment rights.

108. Mr. Boyd seeks a declaration that the Defendants’ intended actions as applied to Mr. Boyd will violate the Eighth and Fourteenth

116a Amendments to the United States Constitution. Specifically, Defendants’ untried lethal injection drug protocol, the existing deficiencies with respect to Defendants’ training and qualifications of their execution squad, the existing deficiencies regarding Defendants’ facilities and equipment, and Defendants’ persistent and unexplained secrecy surrounding their lethal injection protocol(s), all are in violation of Mr. Boyd’s federal constitutional rights under the Eighth and Fourteenth Amendments.

SEVENTH CAUSE OF ACTION Injunctive Relief

109. Mr. Boyd repeats and realleges paragraphs 1 through 94 as though fully set forth herein.

110. Mr. Boyd seeks to enjoin Defendants and the State of Alabama from seeking to set a date for his execution or from executing him by lethal injection under the procedures Defendants intend to employ because (i) Defendants intend to use an untried and inadequate drug, midazolam, for anesthesia, (ii) Defendants and their staff are wholly unprepared to perform a constitutional execution, (iii) Defendants’ facilities and equipment are deficient to perform a constitutional execution, (iv) Defendants’ secrecy surrounding the Alabama lethal injection protocol(s) violates Mr. Boyd’s due process rights under the Fourteenth Amendment, and (v) Defendants’ past significant deviations from their protocol creates a substantial risk that Defendants will disparately treat Mr. Boyd in his execution in violation of his equal protection rights under the Fourteenth Amendment. As a result of all such reasons, Mr. Boyd faces a substantial and unacceptable and unnecessary

117a risk of suffering excruciating pain during his execution in violation of the Eighth Amendment.

111. Absent preliminary and permanent injunctions, Defendants will carry out the execution of Mr. Boyd in violation of Mr. Boyd’s constitutional rights, as alleged herein.

112. Mr. Boyd will be irreparably harmed by an unconstitutional execution.

113. The damage incurred by Mr. Boyd arising from an unconstitutional execution cannot be quantified in financial terms.

114. Mr. Boyd also seeks to enjoin Defendants from executing other inmates on death row in Alabama until judicial oversight can be accomplished to remedy the constitutional defects as alleged herein.

PRAYER FOR RELIEF

WHEREFORE, Mr. Boyd respectfully requests this Court to:

A. Temporarily, preliminarily, and permanently enjoin Defendants from executing Mr. Boyd by means of lethal injection in accordance with their existing procedures and protocols, which violate Mr. Boyd’s rights under the Eighth and Fourteenth Amendments;

B. Temporarily, preliminarily, and permanently enjoin Defendants from executing Mr. Boyd with inadequately-trained staff and in a facility which is substantially lacking in quality and equipment,

118a each of which violate Mr. Boyd’s rights under the Eighth and Fourteenth Amendments;

C. Temporarily, preliminarily, and permanently enjoin Defendants from seeking to set a date for Mr. Boyd’s execution under their existing procedures and protocols, which violate Mr. Boyd’s rights under the Eighth and Fourteenth Amendments;

D. Temporarily, preliminarily, and permanently enjoin Defendants from seeking to set a date for Mr. Boyd’s execution with inadequately-trained staff and in a facility which is substantially lacking in quality and equipment, each of which violate Mr. Boyd’s rights under the Eighth and Fourteenth Amendments;

E. Issue a declaration that Defendants’ existing lethal injection protocols and procedures violate federal constitutional law;

F. Issue a declaration that Defendants must make their lethal injection protocols and procedures publicly available;

G. To the extent the Court may determine that Mr. Boyd is not entitled to judgment as a matter of law, grant him an evidentiary hearing; and

H. Grant Mr. Boyd any further relief as it deems just and proper.

119a JURY DEMAND

Mr. Boyd demands a trial by jury on all issues.

ANTHONY BOYD

By his attorneys,

/s/ Matthew C. Moschella John C. La Liberte (admitted pro hac vice; MA Bar # 556046) [email protected] Matthew C. Moschella (admitted pro hac vice; MA Bar # 653885) [email protected] William M. Dunham (admitted pro hac vice; MA Bar # 672950) [email protected] Jennifer L. Ioli (admitted pro hac vice; MA Bar # 688984) [email protected] SHERIN AND LODGEN LLP 101 Federal Street Boston, MA 02110 (617) 646-2000

Dated: December 1, 2014

120a