Powell v. ThomasPowell v. Thomas
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- Before:
- Watkins
MEMORANDUM OPINION AND ORDER
W. KEITH WATKINS, Chief Judge.I. INTRODUCTION
Eddie D. Powell, an Alabama death row inmate, is scheduled for execution by lethal injection on Thursday, June 16, 2011. On May 13, 2011, Powell filed this action under
*1287 II.JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to
III.STANDARD OF REVIEW
A defendant may raise a statute of limitations defense in a Rule 12(b)(6) motion when the complaint shows on its face that the limitations period has run. Avco Corp. v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir.1982). When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take “the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.2008). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
“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.’ ” Iqbal, 129 S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). While the complaint need not set out “detailed factual allegations,” it must provide sufficient factual amplification “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Finally, in addition to considering the properly pleaded allegations of the complaint, on a motion to dismiss, the court can consider exhibits attached to the complaint, see Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir.2005), as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).
IV.BACKGROUND
The details of Powell’s crimes are set forth in Powell v. State, 796 So.2d 404, 410-11 (Ala.Crim.App.1999). Briefly, on March 25, 1995, Powell “attacked, raped, sodomized and shot to death” seventy-year-old Mattie Wesson during a burglary of her home. Id. at 411; see also Ex parte Powell, 796 So.2d 434 (Ala.2001).
On June 16, 1998, a jury convicted Powell of multiple capital murder offenses, and on August 27, 1998, he was sentenced to death. Powell v. Allen, 602 F.3d 1263, 1267 (11th Cir.2010). The Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Powell’s convictions and death sentence on direct appeal. Powell, 796 So.2d at 434, aff‘d, Ex parte Powell, 796 So.2d 434 (Ala.2001). Powell’s conviction and sentence became final on October 1, 2001, when the United States Supreme Court denied his petition for a writ of certiorari. Powell v. Alabama, 534 U.S. 904, 122 S.Ct. 236, 151 L.Ed.2d 170 (2001).
From 2002 to 2006, Powell pursued a state habeas petition. Powell’s state habeas petition was dismissed by the state trial court; the Alabama Court of Criminal Appeals affirmed the trial court; and the Alabama Supreme Court quashed his petition for a writ of certiorari.
Powell,
602 F.3d at 1267. Powell then filed a petition for a writ of federal habeas corpus in federal court pursuant to
On January 18, 2011, the state of Alabama filed a motion to set an execution date for Powell with the Alabama Supreme Court. (Powell’s Compl. ¶ 18 (Doc. # 1).) On April 15, 2011, the Alabama Supreme Court set Powell’s execution for June 16, 2011. (Powell’s Compl. ¶ 23.)
Eleven days later, on April 26, 2011, the ADOC publicly announced that it was changing the first drug in its lethal injection protocol from sodium thiopental to pentobarbital. (Powell’s Compl. ¶ 25.) Until that time, the ADOC conducted lethal injections by successive injections of sodium thiopental, pancuronium bromide, and potassium chloride. (Powell’s Compl. ¶ 28.) The ADOC implemented the change based upon a “very short supply worldwide” of sodium thiopental due to the manufacturer’s decision to cease production of the drug. (Powell’s Compl., Exs. B, D.) Alabama is not alone in its decision. See Powell v. Thomas, 641 F.3d 1255, 1256 (11th Cir.2011) (per curiam) (published) (“Alabama, along with a number of other states, selected pentobarbital as a replacement [in its lethal injection protocol] to ensure that it could continue to carry out executions regardless of sodium thiopental’s availability.”).
Having garnered knowledge of the ADOC’s switch to pentobarbital, Powell filed this
*1289 Powell is not the first Alabama death row inmate to bring these constitutional causes of action. A nearly identical complaint was filed by another Alabama death row inmate, Jason Oric Williams. On May 13, 2011, Williams filed an emergency motion to intervene in this action and a motion for a temporary stay of execution. (Docs. # 4, 6.) This court permitted Williams to intervene, given the overlapping “common issues of fact and law” and Williams’s imminent May 19, 2011 execution date. (Doc. # 12.) In a memorandum opinion and order entered on May 16, 2011, this court denied Williams’s motion for a temporary stay of execution, however. (Doc. # 17.) The Eleventh Circuit affirmed that decision on May 19, 2011. (Doc. # 30); Powell, 641 F.3d 1255 (styled “Powell” because Williams intervened in this case). The same date, the United States Supreme Court denied Williams’s petition for a writ of certiorari. See Williams v. Thomas, - U.S. -, 131 S.Ct. 2487, 179 L.Ed.2d 1243 (2011).
V. DISCUSSION
Defendants argue that the two-year statute of limitations on Powell’s
“ ‘All constitutional claims brought under
In
McNair,
the Eleventh Circuit held that an inmate’s “method of execution claim accrues on the later of the date on which state review is complete, or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.” 515 F.3d at 1174. As discussed in
McNair,
in July 2002, the state of Alabama implemented a
new
execution protocol, changing the “preferred method of execution from electrocution to lethal injection.”
Id.
at 1177. Inmates on death row at that time, including Powell, had thirty days to opt out of the lethal injection protocol and elect execution by electrocution. For any death row inmate who did not choose electrocution, July 31, 2002 was “when it became clear he would be executed by lethal injection,” and thus, was when the running of the statute of limitations commenced.
Id.
That meant that, in
McNair,
the death row inmate’s
Powell’s conviction and sentence become final on October 1, 2001, when the United States Supreme Court denied Powell’s petition for a writ of certiorari on direct review of his conviction and sentence. The statute of limitations was not triggered on that date because, “at that time, Alabama had not yet adopted lethal injection as a form of execution.”
Id.
Hence, Powell’s challenge to execution by lethal injection accrued on July 31, 2002, absent a later “significant change” in the state execution protocol. Powell’s argument,
i.e.,
that the ADOC’s change from sodium thiopental to pentobarbital, is a substantial or significant change in the lethal injection protocol as contemplated by
McNair,
contravenes the Eleventh Circuit’s holding in
Powell. McNair
did not define the parameters of a “substantially changed execution protocol.” 515 F.3d at 1174. It did not have to because no issue was raised that such a change had occurred.
See id.
at 1177. The Eleventh Circuit in
Powell,
addressing a
In his Complaint, Powell labels his second cause of action attacking the method of his execution as a Fourteenth Amendment due process claim. (Powell’s Compl. ¶ 44.) Regardless of the claim’s label, 6 the event that Powell says started the statute of limitations clock ticking anew on this claim is the ADOC’s pentobarbital substitution. (Doc. #40, at 3, 4.) But, as explained, that event will not suffice under Powell. Rather, Powell could have challenged the ADOC’s “secrecy” (Compl. *1291 ¶ 46) 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.” McNair, 515 F.3d at 1177. The ADOC’s switch to pentobarbital does not awaken this long stale claim. Accordingly, the statute of limitations bars Powell’s causes of action. 7
YI. CONCLUSION
Powell’s
It is further ORDERED that the alternative motion for summary judgment is DENIED as moot.
An appropriate final judgment will be entered.
Notes
. When Powell filed this action, only thirty-four days remained until his execution. Yet, Powell has not requested the court to expedite his case in any way or filed a motion for a temporary restraining order or temporary stay of execution. This opinion is not, therefore, addressed to a stay of execution, but rather only to Defendants’ motion to dismiss, but see infra note 8.
. Seventeen days elapsed between the ADOC‘s April 26 announcement and the filing of Powell’s lawsuit. The reason for that delay is not explained.
. The Eighth Amendment is applicable to the states through the Fourteenth Amendment’s Due Process Clause. Baze v. Rees, 553 U.S. 35, 47, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).
.The second cause of action also references the Fifth Amendment, but Powell has abandoned reliance on that amendment (Doc. # 40, at 5-6), and for good reason. See Buxton v. Plant City, 871 F.2d 1037, 1041 (11th Cir.1989) (“The [F]ifth [A]mendment to the United States Constitution restrains the federal government, and the Fourteenth Amendment, section 1, restrains the states, from depriving any person of life, liberty or proper *1289 ty without due process of law.“). No federal officials are sued in this action.
. Powell was decided on an appeal from the district court‘s denial of a motion for a temporary stay of execution. No reason has been offered, and none can be envisioned, why Powell’s pronouncement would mean something different when analyzing whether a change in execution protocol is significant or substantial enough to trigger a new accrual date. This is especially so when the allegations under consideration in this matter are the same as those in Powell.
. This cause of action mirrors the one Williams brought, both in substance and by its label. (Compare Williams’s Compl. ¶ 48 (Doc. # 13), with Powell’s Compl. ¶ 44.) The Eleventh Circuit in Powell characterized this claim, not as a Fourteenth Amendment due process claim, but as one “asserting] ... a broad Eighth Amendment right to know the details of his execution in order to ensure proper oversight and avoid uncertainty that unnecessarily creates anxiety, which greatly exacerbates his sentence,” and, moreover, as an “attempt[] to avoid the legal prism typically used for analyzing similar Eighth Amendment claims.” Powell, 641 F.3d at 1257.
. In light of this finding, Defendants’ other arguments for dismissal need not be addressed, although some are persuasive.
. Although this opinion is not being decided on the equitable inquiry of whether Powell has unreasonably delayed in litigating his