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Arthur v. Commissioner, Alabama Department of Corrections

United States Court of Appeals, Eleventh Circuit

May 25, 2017

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.

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


         BY THE COURT:

         A 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 DENIED.

          HULL, Circuit Judge, concurring in denial of rehearing en banc:

         Only 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.

         Under 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[1] 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 "Panel Opinion").

         This 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.

         Mr. Arthur's Previous § 1983 Cases

         Notably, 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.

         In 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 1275-78.

         In the 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.

         But 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.

         On 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 ...

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