Kelly Renee Gissendaner v. Commissioner, Georgia Department of Corrections, 2015 U.S. App. LEXIS 3134

Background

Kelly Gissendaner, sentenced to death, filed a 42 U.S.C. § 1983 suit challenging Georgia’s lethal-injection protocol and secrecy statute days after a state order set her execution date.
Georgia’s written protocol (adopted July 17, 2012) calls for IV access by an IV Team and a three-step administration of pentobarbital (two 2.5 g injections then a saline flush), with additional doses if visible signs of life remain.
In March–July 2013 Georgia switched from FDA-approved pentobarbital to compounded pentobarbital and enacted a “lethal injection secrecy act” preventing disclosure of drug sources and participant identities.
Gissendaner alleged compounded drug risks (identity, potency, purity), inadequate IV-access procedures given her obesity/sex/suspected sleep apnea, and that secrecy prevented meaningful Eighth Amendment review; she attached expert affidavits and news reports.
The district court denied a temporary restraining order and dismissed the complaint under the Baze standard; Gissendaner appealed and sought a stay of execution.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness (statute of limitations)	Claims timely because Georgia substantially changed its protocol by switching to compounded pentobarbital and enacting the secrecy act within 2 years	Claims are time-barred; most challenged practices predated the 2‑year limitations and Wellons forecloses treating those changes as "substantial"	Dismissed as untimely; switch to compounded pentobarbital and secrecy act do not constitute a substantial protocol change under binding precedent
Eighth Amendment risk from compounded pentobarbital	Compounded drug risks substantial likelihood of severe pain due to lower regulation and possible degradation	Allegations and evidence do not show an objectively intolerable or imminent risk; no feasible alternatives pleaded	Fails Baze test: plaintiff did not show substantial risk of severe harm or propose feasible, readily implemented alternatives
Risk from IV access given plaintiff’s characteristics	Obesity, female sex, and possible sleep apnea make IV access unreliable, risking painful complications	No factual change to IV-access procedures within limitations period; allegations do not show high likelihood of harm or supply alternatives	Untimely and, on the merits, insufficient—no feasible alternative alleged; claim fails
Stay based on Supreme Court granting certiorari in Glossip	Grant of certiorari signals a likely change to Baze standard, justifying stay	A certiorari grant does not change law; existing circuit precedent controls; time-bar renders any forthcoming change irrelevant	Denied: certiorari grant alone is not grounds for a stay and plaintiff did not show likelihood of success

Key Cases Cited

Wellons v. Commissioner, Ga. Dep’t of Corr., 754 F.3d 1260 (11th Cir. 2014) (holding switch to compounded pentobarbital and secrecy statute did not constitute a substantial change and rejecting similar Eighth Amendment claims)
Baze v. Rees, 553 U.S. 35 (2008) (plurality) (establishing test for lethal-injection Eighth Amendment claims requiring substantial risk and feasible alternatives)
Chavez v. Fla. SP Warden, 742 F.3d 1267 (11th Cir. 2014) (applying Baze standard and prelim-injunction factors in execution challenges)
McNair v. Allen, 515 F.3d 1168 (11th Cir. 2008) (statute-of-limitations accrual rule for method-of-execution claims)
Mann v. Palmer, 713 F.3d 1306 (11th Cir. 2013) (panel precedent binding unless materially different facts presented)
Schwab v. Sec’y, Dep’t of Corr., 507 F.3d 1297 (11th Cir. 2007) (grant of certiorari is not a basis for stay)
Henyard v. Sec’y, DOC, 543 F.3d 644 (11th Cir. 2008) (time-barred execution-method claims cannot justify relief)
Arthur v. Thomas, 674 F.3d 1257 (11th Cir. 2012) (limits on using other states’ executions as proof of how a state administers its protocol)