MEMORANDUM OPINION AND ORDER
Plaintiff Thomas D. Arthur (“Plaintiff’ or “Arthur”), an inmate under sentence of death, brings this lawsuit alleging that Defendants will violate his constitutional rights to equal protection and to be free from cruel and unusual punishment by executing him pursuant to Alabama’s current lethal injection protocol.
Upon remand from the Court of Appeals, Defendants filed their Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. (Doc. # 53.) The Court set an evidentiary hearing on the motion and the parties commenced discovery in advance of the hearing. The Court held the hearing on October 18 and 19, 2012. At the hearing, the parties presented expert and lay witness testimony, of
I. JURISDICTION AND VENUE
This Court has subject matter jurisdiction over the claims in this action under 28 U.S.C. §§ 1331 and 1343. To the extent the Court exercises jurisdiction over Plaintiffs state law claim, such is permitted by 28 U.S.C. § 1367(a). The parties do not contest personal jurisdiction or venue, and the Court finds adequate allegations in support of both.
II. STANDARD OF REVIEW
In assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true and construe them in a light most favorable to the plaintiff. See Baloco ex rel. Tapia v. Drummond Co., Inc.,
“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.’ ” Id. (quoting Bell Atl. Corp. v. Twombly,
To the extent Defendants are not entitled to summary dismissal pursuant to Rule 12(b)(6), the court must determine whether they are entitled to summary judgment. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving pаrty is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett,
Once the moving party has met its burden, the non-moving party must “go beyond the pleadings and by his own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324,
III. FACTS
The Court has carefully considered the submissions of the parties in support of and in opposition to the motion. The submissions of the parties, when viewed in the light most favorable to Arthur, the non-moving party, establish the following material facts:
The Court has previously described background facts relating to Plaintiffs crimes and conviction, his history of collateral challenges to his conviction and sentence, Alabama’s adoption of a lethal injection execution protocol in 2002, and the 2011 revision to the protocol that preciрitated this litigation. (Doc. # 37, at 3-5.) The parties do not dispute these facts and, accordingly, the Court adopts and incorporates herein that portion of its prior order. By way of review, the Court stated in its prior order that
[I]t was well known that, until April 26, 2011, ADOC conducted lethal injections by administering three drugs sequentially to achieve a loss of consciousness, paralysis, and finally death by cardiac arrest. The drugs administered were sodium thiopental, pancuronium bromide, and potassium chloride. However, due to well chronicled circumstances that made sodium thiopental all but unavailable, ADOC announced publicly on April 26, 2011 that it was changing the first drug in its lethal injection protocol from sodium thiopental to 2,500 mg of pentobarbital.
(Doc. # 37, at 5.) Beyond these core facts relating to the substitution of pentobarbital in Alabama’s execution protocol, the parties dispute essentially every material fact relating to pentobarbital’s efficacy within the execution protocol. They also dispute whether the protocol adеquately accounts for the chemical differences between sodium thiopental and pentobarbital, which arguably render pentobarbital less effective than thiopental to a degree of constitutional significance. Despite the parties’ lack of common ground on these core issues, the Court finds the following
A. Differences Between Sodium Thiopental and Pentobarbital
Both sodium thiopental and pentobarbital are barbiturates. Their chemical structures are very similar, differing only by a single atom. Sodium thiopental is classified as an “ultra-short acting barbiturate,” while pentobarbital is an “intermediate-acting barbiturate.” As these classifications indicate, sodium thiopental has an extremely rapid onset of effect and subsequent recovery, while pentobarbital is slower and longer-acting. These differences between the two drugs are reflected in their practical- applications. Sodium thiopental is approved for and commonly used as an anaesthetic in clinical settings beсause the ordinary goal of anaesthesia is to quickly induce anaesthesia and to allow the patient to awaken rapidly following the procedure. Pentobaribital, on the other hand, is not commonly used for general anaesthesia purposes in humans because of its prolonged duration. Rather, in humans, pentobarbital is approved for use as a sedative-hypnotic or as an anticonvulsant. Pentobarbital is also used to induce “barbiturate coma” in humans in order to prevent or to decrease brain damage following trauma or during surgical procedures in which the flow of blood to the brain will be interrupted. Pentobarbital is commonly used in veterinary euthanasia procedures and also by practitioners in jurisdictions that permit assisted suicide.
B. Alabama’s Execution Protocol
The relevance of the differences between sodium thiopental and pentobarbital to this litigation, and the materiality of the parties’ factual disputes about Alabama’s use of pentobarbital, cannot be judged without considering the drug’s use in Alabama’s current lethаl injection protocol. Although Alabama generally maintains that its execution protocol is confidential, the pertinent contents of the protocol have been revealed by Alabama in prior unsealed documents submitted in this and other similar cases.
IV. DISCUSSION
A. Plaintiffs Eighth Amendment Claim
Plaintiffs first claim is as follows:
Defendants are acting under color of Alabama law in undertaking to execute Mr. Arthur 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 a substantial risk that Mr. Arthur 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.
(Doc. #11, at ¶ 102.) Defendants argue that this claim is barrеd by the applicable statute of limitations, fails to state a claim upon which relief can be granted, or, in the alternative, that they are entitled to summary judgment on the claim. (Doc. # 53, at 27-41, 67-75.) The Court will consider each contention in turn.
1. Summary Dismissal Pursuant to Rule 12(b)(6)
Defendants first argue that Plaintiffs Eighth Amendment claim should be dismissed pursuant to Rule 12(b)(6) because it is barred by the statute of limitations and because Plaintiff has failed to state a claim upon which relief can be granted. On the statute of limitations issue, Defendants expend considerable effort challenging the majority opinion in the prior appeal of this case, while championing the dissenting opinion. (Doc. # 53, at 31-35.) While this Court interpreted the Eleventh Circuit’s prior opinions as holding that Plaintiffs Eighth Amendment claim was time-barred, the Eleventh Circuit has made it clear that, in this case, the Court must look beyond Circuit precedents and perform a “fact-dependent inquiry” into the allegations of the complaint before granting a motion to dismiss on statute of limitations grounds. See Arthur,
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may raise a statute of limitations defense when the complaint shows on its face that the limitations period has run. Avco v. Precision Air Parts, Inc.,
Defendants also renew their argument that Plaintiffs Eighth Amendment claim must be dismissed for failure to state a claim upon which relief can be granted. (Doc. # 53, at 40-41.) However, the Eleventh Circuit has already determined that Plaintiffs pleadings, if taken as true for purposes of a motion to dismiss, are sufficient to survive a Rule 12(b)(6) motion. Arthur,
2. Summary Judgment Pursuant to Rule 56
The Court must now determine whether Defendants are entitled to summary judgment on their statute of limitations defense or on the merits of Plaintiff’s Eighth Amendment claim. As set forth above, the statute of limitations issue hinges on whether Alabama’s execution protocol underwent a “significant change” when pentobarbital was substituted for sodium thiopental in 2011. Arthur,
The Court first observes that, in many instances, Defendants seem to mistake, or at least misstate, Plaintiffs burden in opposing summary judgment. For instance, Defеndants repeatedly charge Plaintiff with failing to “establish,” “demonstrate,” or “prove” facts. (See Doc. # 147, at 6) (“In the case at hand, Arthur, has not proven any facts that would establish that Alabama’s three-drug protocol is constitutionally infirm.”); (Doc. # 147, at 14) (“Arthur has failed to demonstrate that Alabama’s lethal injection protocol is constitutionally infirm, nor has he established that the recent amendment allowing the use of pentobarbital instead of sodium thiopental will cause a substantial risk of serious harm or that it will cause any unnecessary pain.”). But at this stage, it is not Plaintiffs burden to “establish” or “prove” facts. Rather, as the non-moving party, Plaintiff must only cite to portions of the record which demonstrate a genuine dispute of material fact. Fed.R.Civ.P. 56(c)(1)(A). For the reasons discussed below, Plaintiff has met this burden.
Even if there is no dispute that the dose of pentobarbital required by the protocol would, given certain conditions, result in the unconsciousness and eventual death of the inmate, this would not dispose of Plaintiffs claim.
The first drug in the three-drug protocol is, Arthur argues, the linchpin of the protocol. By preventing the inmate from perceiving the effects of the second and third drugs, it may “constitutionalize” a process that could otherwise constitute cruel and unusual punishment. Thus, any change in the protocol that arguably results in a less effective anaesthesia-inducing agent that is not accompanied by a compensatory change to account for the new drug enhances the constitutional significance of the change to the protocol. The Court must undertake the fact-intensive inquiry required by the Court of Appeals in light of Plaintiff’s argument that the unique properties of the subject drugs could have material consequences within the confines of Alabama’s lethal injection protocol.
At the outset, the Court notes Plaintiffs observation that the current medical and scientific understanding of pentobarbital, as well as practical experiencе administering the drug, constrains our ability to understand pentobarbital’s effectiveness within Alabama’s execution protocol. This is because, unlike sodium thiopental, which was the first drug in the three-drug execution protocol approved of by the Supreme Court in Baze v. Rees,
Plaintiff also argues that there are unique and known properties of pentobarbital that render it less effective in an execution protocol that is wholly reliant upon the efficiency of the anaesthesia-in
Plaintiff has offered considerable expert opinion in support of his contentions about pentobarbital and how it differs from sodium thiopental in ways material to Alabama’s protocol. In pertinent part, Dr. Lubarsky, a board certified anaesthesiologist and Emanuel M. Papper Professor and Chair of the Department of Anaesthesiology at the University of Miami Miller School of Medicine, testified that, based upon his review of available scientific literature, sodium thiopental is about three times as fast as pentobarbital in reaching its intended effect (Doc. # 132, at 108:2-22), and that this difference is attributable to sodium thiopental’s greater (“60 fold”) lipid solubility (Doc. #132, at 114:10-115:1). {See also Doc. # 132, Ex. 1, at ¶¶ 11-16) (Expert Declaration of David Lubarsky). Dr. Heath, a practicing anaesthesiologist and assistant professor of clinical anaesthesiology at Columbia University, discussed these same properties and surveyed medical sources contrasting sodium thiopental’s and pentobarbital’s speed of action and length of duration as a result of their relative “lipophilicity.” (Doc. # 132, Ex. 6, at ¶ 7) (Declaration of Mark J.S. Heath, M.D.) Dr. Melethil, a practicing attorney and academic who specializes in the field of pharmacokinetics, testified that there is a high probability of pentobarbital precipitating somewhere in either the intravenous line or in the bloodstream (Doc. # 133, at 123:7-124:7), and that this precipitation is more likely to occur with pentobarbital than with sodium thiopental due to the latter’s higher solubility (Doc. # 133, at 142:1-11). Finally, in response to this Court’s questioning of Dr. Melethil at the evidentiary hearing, Plaintiff has submitted the declaration of an additional expert, a pharmaceutical chemist, who opines that as much as half of the pentobarbital injected pursuant to the protocol will precipitate as it is injected into the bloodstream, and that sodium thiopental does not similarly precipitate. (Doc. # 152-1, Ex. 7, at ¶ 8.)
These asserted differences between sodium thiopеntal and pentobarbital are not merely academic points before the Court in a vacuum. They must be considered in conjunction with Plaintiffs other evidence about Alabama’s implementation and execution of the consciousness checks included in the protocol. If Alabama’s switch to pentobarbital causes inmates to attain sufficient anaesthesia more gradually than does sodium thiopental, then the effort to assess consciousness takes on enhanced importance in ensuring the constitutionality of Alabama’s protocol. However, Plaintiff adduced evidence that the final and most important component of the graded stimuli, the pinch test, was not applied in several recent Alabama executions.
To that end, Plaintiff has adduced evidence that the various officers tasked with this function over the years do not have a uniform understanding of the amount of force to be applied while pinching in order to assess consciousness, much less gauge anaesthetic depth.
Defendants mostly challenge Plaintiffs assertions about pentobarbital through the opinion and testimony of Dr. Dershwitz. In pertinent part, Dr. Dershwitz testified that he believes the amount of pentobarbital administered pursuant to Aabama’s protocol would cause unconsciousness and likely death (Doc. # 133, at 13:5-7), that pentobarbital does “readily pass” the blood brain barrier (Doc. # 133, at 15:8-10), that even if pentobarbital takes a longer time to reach its peak effect, it can achieve its intended effect — adequate anaesthesia— rapidly (Doc. # 133, at 21:3-15), that Dr. Lubarsky improperly relied upon “archaic” data and methodology in formulating his extrapоlations about pentobarbital’s effects on humans (Doc. # 133, at 22:6-25), that he has never seen or heard of any problem with pentobarbital precipitating in the intravenous line as opined by Dr. Melethil (Doc. # 133, at 23:20-24:11), and that pentobarbital is not likely to precipitate in the bloodstream to any significant degree because of high concentrations of protein in blood and the “lipid milieu of the cellular component of blood” (Doc. # 133, at 25:2-
Plaintiff has identified a number of facts about pentobarbital and sodium thiopental that, his experts submit, demonstrate that pentobarbital affects the brain more slowly than thiopental and, therefore, renders pentobarbital less effective as the first drug in Alabama’s exeсution protocol, especially considering other evidence about the protocol as actually written and administered. Defendants contention that the distinguishing traits of the two drugs are inconsequential does not negate that Plaintiff has demonstrated a material dispute of fact regarding whether Alabama’s switch from sodium thiopental to pentobarbital constitutes a significant change to its execution protocol. Indeed, it only illuminates the parties’ dispute. The parties offer conflicting expert opinions on complex subject matter involving the intersecting disciplines of medicine, chemistry, and pharmacology. All experts are constrained by the fact that the subject matter about which they are opining — the implications of the rapid injection of large amounts of pentobarbital into conscious, ostensibly healthy humans — is unique to judicial executions. Therefore, it is not the product of years of careful, considered practice by medical professionals and does not lend itself to aсcessible and reliable medical review in the relatively recent instances in which it has been performed in executions. Nevertheless, the experts appear to offer their opinions in good faith based upon their own unique backgrounds, education, and experiences.
Even if Defendants present a compelling argument about the perceived deficiencies of Plaintiffs expert opinions and the relative strengths of their own experts’ opinions, the Court simply may not determine during summary judgment whether Plaintiffs or Defendants’ experts are more credible or persuasive. Such determinations are ordinarily the province of the fact-finder at trial. Feliciano v. City of Miami Beach,
The Court next examines Defendants’ argument that they are entitled to summary judgment on the merits of Plaintiffs Eighth Amendment сlaim. The Eleventh Circuit has articulated the standard governing such claims as follows:
“That the Eighth Amendment protects against future harm to inmates is not a novel proposition.” Helling v. McKinney,509 U.S. 25 , 33,113 S.Ct. 2475 ,125 L.Ed.2d 22 (1993). A typical Eighth Amendment ] challenge — alleging that the State will inflict cruel or unusual punishment — requires the defendant to demonstrate that (1) the State is being deliberately indifferent (2) to a condition that poses a substantial risk of serious harm to him. Farmer v. Brennan,511 U.S. 825 , 828,114 S.Ct. 1970 ,128 L.Ed.2d 811 (1994). As a plurality of the Supreme Court summarized, “to prevail on such a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ ” Baze v. Rees,553 U.S. 35 , 50,128 S.Ct. 1520 ,170 L.Ed.2d 420 (2008) (plurality opinion) (quoting Farmer,511 U.S. at 842 , 846 & 847 n. 9,114 S.Ct. 1970 ).[ ]
Powell v. Thomas,
As with their statute of limitations argument, Defendants contend that they are entitled to summary judgment on the merits of Plaintiffs Eighth Amendment claim because “there is no factual dispute that 2500 mg of pentobarbital will not cause unconsciousness in humans.” (Doc. # 147, at 16-17.) However, as discussed above, the fact that 2500 mg of pentobarbital will eventually render a person unconscious does not dispose of Plaintiffs claim. Although the Supreme Court has never held squarely that any particular form of capital punishment violates the Eighth Amendment, Baze,
B. Plaintiffs Due Process Claim
Plaintiffs second cause of action is a due process claim challenging Alabama’s “veil
C. Plaintiffs Equal Protection Claim
Plaintiff claims that Alabama’s alleged failure to adhere to its execution protocol by conducting the pinch test component of the protocol’s enumerated consciousness checks burdens his right to be free from cruel and unusual punishment and, therefore, violates his right to equal protection. (Doc. # 11, at ¶¶ 114-17.) In its prior order, the Court determined that Plaintiffs allegation that Alabama had failed to perform the pinch test in a prior execution did not state a claim upon which relief could be granted and, accordingly, granted Defendants’ motion to dismiss pursuant to Rule 12(b)(6). (Doc. #37, at 10.) The Eleventh Circuit reversed, stating “Arthur has alleged enough facts to constitute a plausible Equal Protection claim because he alleges that Alabama has substantially deviated from its execution protocol in a manner that significantly reduces inmate safeguards.” Arthur,
1. Timeliness
Defendants’ contention that Plaintiffs equal protection claim is barred by the statute of limitations is based upon the Eleventh Circuit’s holding in DeYoung and Defendants’ own construction of the claim as an Eighth Amendment “cruel and unusual punishment” claim, rather than the Fourteenth Amendment equal protection claim alleged in the amended complaint. (Doc. # 147, at 43^44.) In both respects, Defendants’ arguments are without merit.
First, DeYoung is inapposite because, in that case, DeYoung’s equal protection claim was that Georgia’s lethal injection protocol “contains gaps in the execution procedure that [Georgia] fills in on an ad hoc basis, leading to disparate treatment for different inmates,” and that Georgia “deviates from the written protocol, similarly leading to disparate treatment for different inmates.”
Second, Defendants’ attempt to recast Plaintiff’s equal protection claim as an Eighth Amendment claim is unavailing. (Doc. # 147, at 44). While there is overlap between some of the elements of Plaintiff’s Eighth and Fourteenth Amendment claims, the claims are distinct. Because Plaintiff’s allegations suffice to state an Equal Protection claim, they will not be recast by this Court, at Defendants’ behest, into another, separate Eighth Amendment claim for purposes of applying the statute of limitations.
2. Dismissal Pursuant to 12(b)(6)
Defendants also seek dismissal on the basis that “Arthur’s equal protеction claim fails to state a plausible claim for relief.” (Doc. # 147, at 44.) This argument is refuted by the Eleventh Circuit’s finding that “Arthur has alleged enough facts to constitute a- plausible Equal Protection claim because he alleges that Alabama has substantially deviated from its execution protocol in a manner that significantly reduces inmate safeguards.” Arthur,
3. Summary Judgment on the Merits
The Eleventh Circuit previously described Plaintiffs burden in pleading and proving his equal protection claim as follows:
To state an Equal Protection claim, Arthur first has to “show that the State will treat him disparately from other similarly situated persons,” DeYoung,646 F.3d at 1327 . Second, “[i]f a law treats individuals differently on the basis of ... [a] suspect classification, or if the law impinges on a fundamental right, it is subject to strict scrutiny.” Leib v. Hillsborough County Pub. Transp. Comm’n,558 F.3d 1301 , 1306 (11th Cir.2009). Otherwise, Arthur must “must show that the disparate treatment is not rationally related to a legitimate government interest.” DeYoung,646 F.3d at 1327-28 .
Id. at 1262. As set forth above, Plaintiff claims that, in allegedly failing to conduct the third and most important measure of the protocol’s consciousness chеck, the pinch test, Alabama’s failure to abide by its protocol in a prior execution impinges on his fundamental right to be free from cruel and unusual punishment. Defendants maintain that they are entitled to summary judgment on this claim because there is no dispute of material fact about whether the pinch test is performed consistently. There does not appear to be any dispute that failing to conduct the pinch test on Plaintiff as required by the protocol would not be rationally related to a legitimate government interest. Thus,
Plaintiff has presented the testimonies or declarations of numerous witnesses to prior executions, all of whom testified that they did not observe an execution team member pinch the inmate during the execution, and that they likely would have seen one if it had occurred. As Defendants do not materially challenge the qualification or ability of these witnesses to testify about what they observed, the Court need not delve into the specifics of each witness at this time. Defendants do argue, however, that Plaintiffs witnesses are not to be credited because of various factors, including the witnesses’ lack of knowledge of the confidential execution protocol, their positioning and ability to see all parts of the consciousness check as it is performed, and their emotional state or loyalty to the condemned inmate whose execution they were witnessing. (Doc. # 155, 31-33.) By contrast, Defendants assert they have presented numerous knowledgeable, neutral, and experienced witnesses, including corrections officers who served on execution teams, prison administrators, a DOC attorney, etc., whom all maintain that the pinch test is performed at every execution. In an attempt to skirt the prohibition on weighing the credibility of witnesses during summary judgment proceedings, Defendants draw the following distinction: “Defendants are not calling upon this Court to make credibility determinations regarding the execution witnesses presented. Rather, the State has differentiated the performance of the pinch test as opposed to the observation of it. There is no dispute that ADOC performs the pinch test; the only dispute is what Arthur’s witnesses observed.” (Doc. # 155, at 26-27 (citation omitted) (emphasis in original). This is a specious distinction that ignores the testimony of at least one of Plaintiffs witnesses that, had a pinch been performed, he would have seen the execution team member’s conforming arm movements. (Doc. # 132, at 259:4-25 (testimony of Matt Schulz). Elsewhere, Defendants make clear why they believe that this Court should discredit Plaintiffs witnesses at the summary judgment stage, arguing that Plaintiff
[H]as not presented a single witness who was either trained in the execution protocol at the time that he witnessed an execution, or a witness who was present in the execution chamber and could actually see what the captain was doing. Instead, he has presented witnesses who were not only family and associates of the inmates being executed, but who were seated in a room that gave them a partially obstructed view of the captain-in particular, they could not see the back and underside of the inmate’s left arm, which is where the pinch occurred.
(Doc. # 155, at 32-33.) However relevant and persuasive these points might be, they go to the credibility and weight of Plaintiffs witnesses’ testimonies, not whether Plaintiff has demonstrated a genuine dispute of material fact about whether Alabama consistently performs the pinch test. Considering all of the evidence in the record, Plaintiff has demonstrated that a genuine dispute of material fact exists regarding whether or not Alabama has performed all components of the consciousness check expressly included in its execution protocol during prior executions. As a result, Defendants are not entitled to summary judgment on the merits of Plaintiffs equal protection claim.
D. Plaintiffs State Law Claim
Plaintiffs fourth claim is a state law claim alleging that Alabama’s lethal injection statute “unconstitutionally dele
As the Court is not dismissing all of Plaintiffs federal claims at this time, the Court must now revisit Plaintiffs state law claim. Section 1367(c)(1) provides that a district court may decline to exercise supplemental jurisdiction over a pendent state law claim if “the claim raises a novel or complex issue of State law.” The Court finds that, in requiring this Court to assess the constitutionality of the Alabama legislature’s delegation of its authority to the DOC, Plaintiff places the Court in the uncomfortable position of interpreting the Alabama Constitution’s allocation of the State government’s inherent powers. Plaintiff is not asking that the Court merely apply some general principles of a well-developed body of state tort or contract law, as is typical in a district court’s exercise of jurisdiction over supplementаl state law claims. See Parker v. Scrap Metal Processors, Inc.,
V. CONCLUSION
For the reasons stated above, it is hereby ORDERED as follows:
1. Defendants’ Motion to Dismiss or, in the alternative, Motion for Summary Judgment (Doc. #23) as to Plaintiffs Fourteenth Amendment due process claim (Count II) is DENIED AS MOOT;
2. Defendants’ Motion to Dismiss or, in the alternative, Motion for Summary Judgment (Doc. # 23) is DENIED as to Plaintiffs Eighth Amendment “cruel and unusual punishment” and Fourteenth Amendment equal protection claims (Counts I and III); and
3. Pursuant to 28 U.S.C. § 1367(c)(1), the Court DECLINES to exercise supplemental jurisdiction over Plaintiffs state law claim concerning the separation of powers under the Alabama Constitution (Count IV) and such claim is, accordingly, DISMISSED without prejudice.
Notes
. Plaintiff's amended complaint also alleges a constitutional due process claim concerning the purported "secrecy” with which Alabama adopts and revises its execution protocol. The Court dismissed this claim on statute of limitations grounds when it granted Defendants' prior motion to dismiss all of Plaintiff’s claims. (Doc. #37,
. In its prior order granting Dеfendants' motion to dismiss, the Court declined to exercise supplemental jurisdiction over Plaintiff's state law claim, pursuant to 28 U.S.C. § 1367(c)(3), due to the dismissal of all of Plaintiff's federal constitutional claims. (Doc. #37, at 10-11.)
. Specifically, the Court draws the following description of Alabama’s execution procedures from the Expert Report of Mark Dershwitz, M.D., Ph.D., which Defendants attached to their motion. (Doc. # 53, Ex. D, ¶ 6.) See also Powell v. Thomas,
. It is undisputed that the rapid injection of 2,500 mg of pentobarbital as required by Alabama's protocol is itself likely fatal to the inmate because it will cause the inmate’s blood pressure to drastically, but gradually, decrease to the point that life-saving measures would be required in a clinical setting.
. Although the Eleventh Circuit on numerous occasions prior to the appeal in this case addressed the issue of whether a "significant change” occurred when various states substituted pentobarbital for sodium thiopental, the majority of those cases were reviewed by the appellate court in the context of appeals from thе denial of a motion for stay of execution. See Valle v. Singer,
. Plaintiff appears even to dispute Defendants’ contentions about the effectiveness of a stand-alone dose of pentobarbital consistent with Alabama's protocol. (Doc. # 132, at 98:22-103:4) (containing Dr. Lubarsky's opinion that a 4,200 mg dose of pentobarbital administered over a longer amount of time is
. This evidence, consisting of the testimonies of several witnesses to recent executions, will be discussed in greater detail in conjunction
. Plaintiff’s evidence of the disparate understanding among execution team members about how hard the pinch must be to reliably assess consciousness is contained in deposition transcripts that are sealed. Thus, the Court will not extensively review their contents. It is sufficient for present purposes to observe that the various execution team members' testimonies on this topic reflect the sort of wide-ranging understanding of the required amount of force that one might expect to occur when lay persons are asked to perform a task more often performed by trained medical professionals and yet also are not afforded specific, uniform instructions on how to perform the task.
. For all his candor about the opinions offered by Plaintiff's experts, however, Dr. Dershwitz repeatedly refused to compare or to contrast the relevant qualities of pentobarbital with sodium thiopental as did Plaintiff's experts (Doc. # 133, at 20:20, 31:10-11, 77:15-18), despite that such comparison would seem crucial in analyzing the degree to which Alabama’s execution protocol was changed.