THOMAS D. ARTHUR, Plaintiff-Appellant,
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, ANNE ADAMS HILL, General Counsel, Alabama Department of Corrections, in her official capacity, HOLMAN CF WARDEN, Defendants-Appellees.
from the United States District Court for the Middle District
GERALD BARD TJOFLAT, Acting Chief Judge, HULL, MARCUS,
WILSON, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES and JILL
PRYOR, Circuit Judges. [*]
member of this Court in active service having requested a
poll on whether this case should be reheard by the Court
sitting en banc, and a majority of the judges in active
service on this Court having voted against granting a
rehearing en banc, it is ORDERED that this case will not be
reheard en banc. The motion for a stay of execution is
Circuit Judge, concurring in denial of rehearing en banc:
because a dissent has been filed, I write briefly to put this
case in the proper context and to set forth why I concur in
the denial of rehearing en banc.
sentence of death, Thomas Arthur's execution is currently
scheduled for May 25, 2017 at 6:00 p.m. CST. This is Mr.
Arthur's eighth scheduled execution and seventh 42
U.S.C. § 1983 case. Arthur v. Comm'r, Ala.
Dep't of Corr., CM/ECF for the Eleventh Cir. Ct.
App. no. 17-11879, at 2 (11th Cir. May 24, 2017) (the
appeal arises in Mr. Arthur's sixth § 1983
case. Panel Opinion at 2. As outlined in great detail in this
Court's 58-page panel opinion, Mr. Arthur, from
2007-2017, in multiple § 1983 cases, has challenged
Alabama's lethal-injection execution protocol, including
the three drugs to be administered in the execution, its
substitution of midazolam as the first drug, its
consciousness checks, and virtually every feature of
Alabama's execution procedures. Panel Opinion at 8-12.
Arthur's Previous § 1983 Cases
Mr. Arthur's third § 1983
method-of-execution litigation lasted for over five years.
Panel Opinion at 9. In April 2011, Alabama switched the first
drug in its lethal-injection protocol from sodium thiopental
to pentobarbital. See Arthur v. Comm'n Ala. Dep't
of Corr., 840 F.3d 1268, 1275 (11th Cir. 2016)
("Arthur"). Two months later, Mr. Arthur
filed a new § 1983 complaint challenging this
pentobarbital-based protocol. Id.
September 2014, Alabama switched to midazolam. Id.
at 1276. Mr. Arthur twice amended his complaint in his third
§ 1983 case to challenge midazolam and Alabama's
execution protocol involving midazolam. Id. at
instant appeal in this sixth § 1983 case, this
Court's panel opinion recounts the variety of just some
of Mr. Arthur's claims in that third § 1983
litigation because Mr. Arthur did not raise his current
"telephone-in-the-viewing-room claim" during that
five-year challenge to Alabama's execution protocol in
that third § 1983 lawsuit. Panel Opinion at 9-10.
Instead, Mr. Arthur raised this telephone claim only in this
current sixth § 1983 case (which, as explained below, is
now time-barred). See Panel Opinion at 15-16.
back to Mr. Arthur's third § 1983 case. After
holding a two-day bench trial in January 2016 regarding
midazolam, the "pinch test, " medical monitoring,
and many other § 1983 claims about Alabama's
execution procedures, the district court issued two
dispositive orders in Mr. Arthur's third § 1983
case. Arthur at 1278, 1283, 1296. In its first
order, the district court determined that the Alabama
Department of Corrections ("ADOC") was entitled to
judgment on Mr. Arthur's facial method-of-execution and
Equal Protection challenges. Id. at 1283-86. In its
second order, the district court denied relief on Mr.
Arthur's many as-applied challenges to ADOC's method
of execution as applied to Mr. Arthur personally.
Id. at 1296-98. As a result, in July 2016, the
district court entered final judgment on Mr. Arthur's
third § 1983 case raising multiple challenges under the
Eighth Amendment, and Mr. Arthur timely appealed to our
Court. Id. at 1298.
November 2, 2016, this Court affirmed the district
court's final judgment in Mr. Arthur's third §
1983 case, rejecting his various challenges to Alabama's
execution protocol, including, but not limited to,
Alabama's use of midazolam as the first drug in the
three-drug lethal injection series and his request for a
firing squad to execute him. Id. at 1303-04,
1315-17. After exhaustively reviewing the evidence submitted
by both Mr. Arthur and ADOC in that third § 1983 case,
this Court's 140-page opinion determined, among other
things, that the district court had not met his burden of
demonstrating that, as applied to him, Alabama's
lethal injection protocol was "sure or very likely to
cause serious illness and needless ...