Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brant v. Reddish

United States District Court, M.D. Florida, Jacksonville Division

September 23, 2019

CHARLES G. BRANT, Plaintiff,
v.
BARRY REDDISH, in his official capacity as the Warden of Florida State Prison, and MARK S. INCH, [1] in his official capacity as the Secretary, Florida Department of Corrections, Defendants. FRED ANDERSON, JR., Plaintiff,
v.
BARRY REDDISH, in his official capacity as the Warden of Florida State Prison, and MARK S. INCH, in his official capacity as the Secretary, Florida Department of Corrections, Defendants. ETHERIA V. JACKSON, Plaintiff,
v.
BARRY REDDISH, in his official capacity as the Warden of Florida State Prison, and MARK S. INCH in his official capacity as the Secretary, Florida Department of Corrections, Defendants.

          ORDER

          MARCIA MORALES HOWARD, UNITED STATES DISTRICT JUDGE

         I. Status

         Plaintiffs, Charles G. Brant; Fred Anderson, Jr.; and Etheria Jackson, are death row inmates of the Florida penal system who have initiated, through counsel, nearly identical actions challenging the constitutionality of Florida’s lethal injection protocol pursuant to 42 U.S.C. § 1983. See Brant v. Reddish, No. 3:13-cv-412-J-34MCR (Brant); Anderson v. Reddish, No. 3:14-cv-1148-J-34JBT (Anderson II); Jackson v. Reddish, No. 3:14-cv-1149-J-34JBT (Jackson II). Brant is proceeding on a First Amended Complaint, see Brant (Doc. 102; Brant FAC), Anderson is proceeding on a Second Amended Complaint, see Anderson II (Doc. 57; Anderson SAC), and Jackson is proceeding on a Second Amended Complaint, see Jackson II (Doc. 62; Jackson SAC). (Amended Complaints).[2] As Defendants, Plaintiffs sue Barry Reddish in his official capacity as the Warden of Florida State Prison, a position in which “he is responsible for all executions and for the administration of lethal injection for the Florida Department of Corrections” (FDOC), and Mark S. Inch in his official capacity as the Secretary of the FDOC “where [he] is responsible for the creation and enforcement of policies and procedures” applicable to executions by lethal injection. Amended Complaints ¶¶ 15-16. As relief, Plaintiffs seek: (1) temporary, preliminary, and permanent injunctive relief prohibiting Defendants from executing them using the current lethal injection protocol; (2) an order declaring the existing lethal injection protocol unconstitutional; and (3) an evidentiary hearing or such other relief as this Court may deem just and warranted. Id. ¶¶ 7, (a)-(c).

         Defendants filed a motion to dismiss in each of the three cases. See Brant (Doc. 104; Brant Motion); Anderson II (Doc. 60; Anderson Motion); Jackson II (Doc. 65; Jackson Motion). (Motions).[3] Plaintiffs filed responses in opposition to the Motions. See Brant (Doc. 107; Brant Response); Anderson II (Doc. 65; Anderson Response); Jackson II (Doc. 71; Jackson Response). (Responses).[4] On April 2, 2019, and June 13, 2019, Defendants filed notices of supplemental authority in support of their Motions, in which they advised the Court of the United States Supreme Court’s decision in Bucklew v. Precythe, 139 S.Ct. 1112 (2019), see Brant (Doc. 108); Anderson II (Doc. 66); Jackson II (Doc. 72), and the Florida Supreme Court’s decision in Long v. State, 271 So.3d 938 (Fla. 2019), see Brant (Doc. 110); Anderson II (Doc. 68); Jackson II (Doc. 74). Defendants’ Motions are ripe for review.

         II. Background

         A. Jackson

         A jury convicted Jackson of the November 1985 first degree murder of Linton Moody. Jackson v. State, 530 So.2d 269 (1988). By a vote of seven-to-five, the jury recommended that Jackson be sentenced to death, and the trial court followed that recommendation sentencing Jackson to death. Id. at 271. The Florida Supreme Court affirmed Jackson’s conviction and sentence on May 5, 1988, see id., and his death sentence became final on January 23, 1989, when the United States Supreme Court denied certiorari review. Jackson v. Florida, 488 U.S. 1050 (1989). Thereafter, on September 9, 1993, the Florida Supreme Court affirmed the denial of Jackson’s initial request for state postconviction relief, Jackson v. Dugger, 633 So.2d 1051 (Fla. 1993), and on December 15, 2003, this Court denied Jackson’s initial federal petition for writ of habeas corpus, Jackson v. Crosby, Jr., No. 3:94-cv-492-J-20 (M.D. Fla. Dec. 15, 2003) (Doc. 55).[5]

         B. Anderson

         A jury convicted Anderson of the 1999 first degree murder of Heather Young.[6]Anderson v. State, 863 So.2d 169, 174 (Fla. 2003). The jury unanimously recommended that Anderson be sentenced to death, and the trial court followed that recommendation sentencing Anderson to death. Id. at 175. The Florida Supreme Court affirmed Anderson’s convictions and sentence on September 25, 2003, see id. at 174, and his death sentence became final on March 22, 2004, when the United States Supreme Court denied certiorari review. Anderson v. Florida, 541 U.S. 940 (2004). On July 9, 2009, the Florida Supreme Court affirmed the denial of Anderson’s initial request for state postconviction relief. Anderson v. State, 18 So.3d 501 (Fla. 2009). Thereafter, this Court denied Anderson’s initial federal habeas petition, see Anderson v. Sec’y Dep’t of Corr., No. 5:09-cv-450-Oc-10KRS, 2011 WL 2784192, at *1 (M.D. Fla. July 15, 2011), and the Eleventh Circuit Court of Appeals affirmed the denial, see Anderson v. Sec’y, Dep’t of Corr., 752 F.3d 881, 883 (11th Cir. 2014).

         C. Brant

         On May 25, 2007, Brant entered a plea of guilty to the 2004 first degree murder, sexual battery, burglary with assault or battery, and kidnapping of Sara Radfar.[7] Brant v. State, 21 So.3d 1276, 1277 (Fla. 2009). Brant waived his right to a penalty-phase jury, and instead the parties presented aggravating and mitigating evidence to the trial court. Id. at 1277. At the conclusion of the penalty phase, the trial court sentenced Brant to death. Id. at 1283. The Florida Supreme Court affirmed Brant’s convictions and sentence on November 12, 2009. Id. at 1277. The record does not definitively reflect whether Brant filed a petition for writ of certiorari with the United States Supreme Court. However, Defendants assert that Brant’s conviction and death sentence became final on February 10, 2010, see Brant Motion ¶ 25, and Brant has not contested that assertion.[8] Brant sought state postconviction relief, and the Florida Supreme Court affirmed denial of Brant’s initial state motion for postconviction relief on June 30, 2016, see Brant v. Florida, 197 So.3d 1051 (Fla. 2016). His initial federal habeas petition is currently pending in the Tampa Division of this Court, see Brant v. Sec’y, Dep’t of Corr., No. 8:16-cv-2601-T-23JSS (M.D. Fla.).[9]

         D. Florida’s Lethal Injection Protocols and Plaintiffs’ § 1983 actions

         On January 14, 2000, the state of Florida adopted lethal injection as its primary method of execution for carrying out a death sentence. Sims v. State, 754 So.2d 657, 664 n.11 (Fla. 2000). While Florida identifies the method of execution by statute, the legislature delegates the responsibility of establishing the specific procedures or drugs to be used to the FDOC. See Valle v. Singer, 655 F.3d 1223, 1227 (11th Cir. 2011). Since the adoption of lethal injection, Florida has used a three-drug lethal injection protocol. See id.; Muhammad v. State, 132 So.3d 176, 195 (Fla. 2013); Lightbourne v. McCollum, 969 So.2d 326, 344-46 (Fla. 2007). The FDOC’s first three-drug lethal injection protocol provided for intravenous administration of (1) 5 grams of sodium pentothal, (2) 100 milligrams of pancuronium bromide, and (3) 240 milliequivalents of potassium chloride. Lightbourne, 969 So.2d at 345 (Sodium Pentothal Protocol).

         On December 10, 2010, Jackson filed his first federal § 1983 method-of-execution action challenging the constitutionality of the Sodium Pentothal Protocol. See Jackson v. Singer, No. 3:10-cv-1130-J-34MCR (M.D. Fla.) (Jackson I) (Doc. 1).[10] He filed an amended complaint on April 13, 2011. See Jackson I (Doc. 10). In response to the amended complaint, Defendants filed a motion to dismiss arguing that the amended complaint should be dismissed because, among other reasons: (1) Jackson failed to properly exhaust his administrative remedies; (2) Jackson’s claims were barred by the applicable statute of limitations; and (3) Jackson’s challenge to the Sodium Pentothal Protocol was moot because the FDOC no longer intended to use the Sodium Pentothal Protocol for future executions. See generally id. (Doc. 13). As it turns out, on June 8, 2011, a little over a week before filing the motion to dismiss, the FDOC implemented a new lethal injection protocol that provided for the administration of (1) 2.5 grams of pentobarbital sodium, (2) 200 milligrams of pancuronium bromide, and (3) 480 milliequivalents of potassium chloride. See Valle v. State, 70 So.3d 530, 538 (Fla. 2011) (Pentobarbital Protocol). As a result, the Court permitted Jackson to file an amended § 1983 complaint on March 16, 2012, in which he challenged the constitutionality of the Pentobarbital Protocol. See Jackson I (Doc. 18). In response to this amended complaint, Defendants again filed a motion to dismiss raising many of the same arguments, including that Jackson failed to exhaust his administrative remedies before filing suit and that his claims were barred by the statute of limitations. See generally id. (Doc. 24). Then, on September 4, 2012, the FDOC changed the second drug of its lethal injection protocol by substituting vecuronium bromide for pancuronium bromide. See Pardo v. State, 108 So.3d 558, 561 (Fla. 2012) (Pentobarbital II Protocol). The Court again permitted Jackson to file an amended complaint no later than April 17, 2013. Jackson I (Docs. 31, 34). Defendants again responded to Jackson’s complaint, arguing that dismissal of the action was warranted because Jackson failed to exhaust his administrative remedies and the amended complaint was barred by the statute of limitations. See generally id. (Doc. 36).

         On April 18, 2013, Anderson and Brant initiated their first federal § 1983 method-of-execution actions challenging the constitutionality of the Pentobarbital II Protocol. See Anderson v. Palmer, No. 3:13-cv-1431-J-32JBT (M.D. Fla.) (Anderson I) (Doc. 1);[11] Brant (Doc. 1). Defendants filed a motion to dismiss Anderson’s complaint arguing it should be dismissed because, among other reasons: (1) Anderson’s action was barred by the statute of limitations; (2) Anderson failed to properly exhaust his administrative remedies; and (2) Anderson’s challenge to the Pentobarbital II Protocol failed to state a claim on which relief could be granted. Anderson I (Doc. 9). That same day, Defendants filed a similar motion to dismiss in response to Brant’s complaint. See Brant (Doc. 10). Acknowledging that Brant initiated his action within the four-year statute of limitations, Defendants argued that his complaint should be dismissed because Brant failed to exhaust his administrative remedies and his complaint failed to state a claim upon which relief could be granted. See Brant (Doc. 10).

         Less than six months later, on September 9, 2013, Florida implemented yet another new lethal injection protocol. The new protocol provided for intravenous administration of (1) 250 milligrams of midazolam hydrochloride, (2) 200 milligrams of vecuronium bromide, and (3) 480 milliequivalents of potassium chloride. See Muhammad v. State, 132 So.3d 176, 204 (Fla. 2013) (Midazolam Protocol). In light of the change, Plaintiffs filed motions for leave to file amended complaints. See Jackson I (Doc. 44); Anderson I (Doc. 16); Brant (Doc. 21). Defendants filed responses in opposition arguing that leave to amend would be futile because, inter alia, Plaintiffs had failed to exhaust their administrative remedies regarding the Midazolam Protocol before filing suit; Jackson and Anderson’s actions were barred by the statute of limitations; and Brant’s “proposed amendment add[ed] nothing to the existing complaint since the change of a single drug in Florida’s lethal injection protocol [was] not a significant change.” Brant (Doc. 23 at 1-2, 11); Jackson I (Doc. 46 at 13); Anderson I (Doc. 17 at 13). Following a joint hearing on Jackson and Brant’s motions for leave to amend, and to address some of the arguments presented, the Court directed Jackson and Brant to file renewed motions to amend, see Jackson I (Docs. 52, 53, 55); Brant (Docs. 30, 31, 33), and later directed Anderson to do the same, see Anderson I (Doc. 25).[12] Plaintiffs filed their renewed motions on January 6, 2014. See Jackson I (Doc. 56); Anderson I (Doc. 26); Brant (Doc. 34). Not surprisingly, Defendants filed similar responses opposing the filing of the amended complaints. See Jackson I (Doc. 58); Anderson I (Doc. 27); Brant (Doc. 35). The Court conducted a second hearing. See Jackson I (Docs. 67, 69); Anderson I (Doc. 34); Brant (Doc. 43). Thereafter, at the urging of the Court, given the repeated changes to the protocol and Defendants’ challenges to the sufficiency of Plaintiffs’ presuit exhaustion efforts, Jackson and Anderson agreed to dismiss their first § 1983 actions without prejudice, refile, and pursue their claims in new separate actions. See Jackson I (Doc. 68); Anderson I (Doc. 39).[13]The Court dismissed Jackson I without prejudice on August 15, 2014, see Jackson I (Doc. 73), and dismissed Anderson I without prejudice on August 22, 2014, see Anderson I (Doc. 39). The Court deferred ruling on Brant’s renewed motion for leave to file an amended complaint pending the resolution of an unrelated issue with counsel’s representation and the completion of supplemental briefing on the issue of exhaustion. Brant (Doc. 46 at 2).

         In September 2014, Jackson and Anderson initiated their current § 1983 actions by filing complaints challenging the Midazolam Protocol. See Jackson II (Doc. 1, Original Complaint); Anderson II (Doc. 1, Original Complaint).[14] The Court struck Jackson and Anderson’s Original Complaints finding them to be improper shotgun pleadings, see Jackson II (Doc. 10); Anderson II (Doc. 10), and Jackson and Anderson filed their First Amended Complaints on December 1, 2014, see Jackson II (Doc. 14); Anderson II (Doc. 11). In early May 2015, at the parties’ mutual request, the Court stayed all three actions pending the United States Supreme Court’s decision in Glossip v. Gross, 135 S.Ct. 2726 (2015). See Jackson II (Doc. 26); Anderson II (Doc. 22); Brant (Doc. 61). Following the release of the Glossip decision, in November 2015, the Court briefly lifted the stays, see Jackson II (Doc. 29); Anderson II (Doc. 25); Brant (Doc. 65), but soon reinstated the stays in light of the United States Supreme Court’s decision in Hurst v. Florida, 136 S.Ct. 616 (2016), and pending the Florida Supreme Court’s resolution, on remand, of Hurst v. State, 202 So.3d 40 (Fla. 2016), see Jackson II (Doc. 37); Anderson II (Doc. 32); Brant (Doc. 75). The Court continued the stays until the Florida Supreme Court determined whether the rule announced in Hurst v. Florida and/or Hurst v. State would apply retroactively. See Jackson II (Docs. 39, 47); Anderson II (Docs. 34, 42); Brant (Docs. 79, 87).

         During one of these prolonged stays, on January 4, 2017, Florida implemented its most recent lethal injection protocol that changes all three drugs used in its previous Midazolam Protocol. See Amended Complaints Ex. A. Specifically, the newly adopted protocol provides for intravenous administration of (1) 200 milligrams of etomidate (a sedative), (2) 1000 milligrams of rocuronium bromide (a paralytic agent), and (3) 240 milliequivalents of potassium acetate (a substance to stop the heart). See id. (Etomidate Protocol). A saline solution is injected before a new drug is administered to clear the intravenous line between chemicals.

         Following the Florida Supreme Court’s resolution of the Hurst retroactivity question, and in light of the FDOC’s implementation of the Etomidate Protocol, the Court reopened these cases on January 30, 2018, and directed Plaintiffs to file motions for leave to amend their complaints with proposed amended complaints. See Jackson II (Doc. 50); Anderson II (Doc. 45); Brant (Doc. 90). Plaintiffs filed their motions for leave to amend with attached proposed amended complaints on March 12, 2018. Jackson II (Doc. 51); Anderson II (Doc. 46); Brant (Doc. 91). Over Defendants’ objection, [15] the Court granted Plaintiffs’ motions. Jackson II (Doc. 61); Anderson II (Doc. 56); Brant (Doc. 101). Plaintiffs filed their Amended Complaints challenging the Etomidate Protocol in December 2018. See Jackson SAC; Anderson SAC; Brant FAC. The instant Motions followed.

         III. Plaintiffs’ Claims

         In their two-count Amended Complaints, Plaintiffs assert that Florida’s Etomidate Protocol, both as written and as applied, poses a substantial risk of serious harm to Plaintiffs in violation of the Eighth Amendment’s proscription against cruel and unusual punishment. See generally Amended Complaints.[16] In their first claim for relief, Plaintiffs assert that the drug combination used in the Etomidate Protocol raises a substantial risk that they will suffer unnecessary pain during the execution. Id. ¶¶ 70-73. According to Plaintiffs, to not suffer, or face a risk of suffering, etomidate must adequately and fully render them unconscious for the entire duration of the execution. Id. ¶ 31. They contend, however, that etomidate is an inadequate anesthetic because its ultra-short sedating effects are insufficient to ensure that they will remain unconscious and insensate to the paralytic properties of the second drug or the noxious stimuli of the third drug. See id. ¶¶ 32-33. Plaintiffs assert that if etomidate wears off before the execution is complete, they will experience a sense of suffocation or drowning after the administration of rocuronium bromide and then the intense burning sensation of potassium acetate before it stops the heart. Id. ¶ 43. In support of this claim, Plaintiffs offer the Declaration of Dr. David Lubarsky, see Amended Complaints Ex. C, in which Dr. Lubarsky opines that etomidate has a re-distribution half-life of 2.7 minutes; thus, at the sixteenth minute of a seventeen-minute execution, the concentration of etomidate in the blood would be 1/64th of the original 200 milligram dose, see id. ¶ 16.

         Plaintiffs further contend that etomidate causes severe pain upon injection and does not contain any analgesic properties. See Amended Complaints ¶¶ 36-38. Plaintiffs again cite to Dr. Lubarsky’s Declaration which states that pain is associated with most etomidate injections and the prisoner will feel an intense pain as the entire 200 milligrams is pushed through the IV tube. See id. Plaintiffs also provide the Declaration of Robert Friedman who witnessed the February 22, 2018 execution of Eric Branch. See Amended Complaints Ex. D. According to reports, Branch “let out a ‘blood-curdling’ scream ‘at the top of his lungs’ immediately following the administration of etomidate.” Amended Complaints ¶ 37.

         Plaintiffs next assert that Defendants’ written lethal injection protocol exacerbates the risk of serious harm associated with etomidate. Id. ¶ 72. According to Plaintiffs, the protocol fails to consider how etomidate’s short-term anesthetic properties affect the consciousness test. Id. ¶¶ 53-54. They explain that etomidate causes involuntary movements, or myoclonus, that will make the consciousness check more difficult and time consuming. Id. ¶¶ 51-52. Plaintiffs provide the Declaration of Dr. J. Robert Sneyd to support their contention that the protocol does not require the execution personnel to understand the nuances of etomidate when conducting the consciousness check. See Amended Complaints Ex. G. Plaintiffs also allege that the mixing of rocuronium bromide and etomidate will cause precipitation, resulting in incomplete drug delivery and loss of the IV tube during the procedure. See Amended Complaints ¶¶ 32, 44. Plaintiffs again cite to Dr. Lubarsky’s Declaration to corroborate this allegation. See id. ¶ 44.

         Lastly, in their first claim for relief, Plaintiffs maintain that the current protocol does not require training for execution personnel charged with carrying out specific lethal injection tasks. Id. ¶¶ 56-59. According to Plaintiffs, in the event peripheral venous access is not possible, “an advanced registered nurse practitioner” and a “physician’s assistant” are not qualified to place a central line, and the protocol does not provide guidelines for the execution team to exercise discretion during the process. Id. ¶¶ 57-58. Plaintiffs further aver that the protocol does not allow for individualized assessment of each Plaintiffs’ age, weight, or height, and it does not address the appropriate medical response to foreseeable complications. Id. ¶¶ 60-61. They contend that execution team members consistently and willfully fail to follow the written lethal injection protocol, and their policy of keeping information about their lethal injection procedure secret is unconstitutional. Id. ¶¶ 62-68.

         In their second claim for relief, Plaintiffs contend that Defendants’ refusal to adopt a one-drug protocol violates the evolving standards of decency encompassed in the Eighth Amendment. Id. ¶¶ 74-81. According to Plaintiffs, most states that still recognize the death penalty have switched to a one-drug protocol, and seventy percent of the executions completed in 2018 did not include the use of a paralytic. Id. ¶ 76. Plaintiffs identify “a single dose of non-compounded or properly compounded pentobarbital as the readily available alternative to the [s]tate of Florida’s current unconstitutional protocol.” Id. ¶ 79. Plaintiffs aver that other states such as Texas, Missouri, Georgia, and South Dakota have the ability to obtain properly compounded pentobarbital and have used this proposed single dose of pentobarbital to execute a combined sixty-six[17] condemned inmates. Id. ¶ 80. They additionally contend that California and Kentucky have recently proposed one-drug protocols demonstrating a national consensus toward this alternative procedure. Id. Plaintiffs assert that a single dose of pentobarbital is a feasible, readily available alternative that would significantly reduce the substantial risk associated with Florida’s three-drug protocol. Id. ¶¶ 77, 79.

         IV. Motion to Dismiss Standard

         In ruling on a motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary[, ]” the complaint should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a claim that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         A “plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”) (internal citation and quotations omitted). Indeed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[, ]” which simply “are not entitled to [an] assumption of truth.” See Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting Twombly, 550 U.S. at 570).

         V. Summary of the Arguments

         In their Motions, Defendants argue that the Court should dismiss Plaintiffs’ Amended Complaints because: (a) Plaintiffs failed to properly exhaust their administrative remedies before filing suit; (b) Anderson and Jackson’s Amended Complaints are barred by the statute of limitations;[18] and (c) Plaintiffs fail to state an Eighth Amendment claim upon which relief can be granted. See generally Motions. In response, Plaintiffs argue that they exhausted their administrative remedies, but nevertheless, contend that they were not required to exhaust administrative remedies as to their lethal injection challenges because no such remedy was “available.” See Responses at 2-14. They also assert that they state a plausible Eighth Amendment claim against Defendants, see Brant Response at 14-21; Jackson Response at 17-24; Anderson Response at 17-24, and Anderson and Jackson maintain that their actions are not barred by the statute of limitations because the January 4, 2017 Etomidate Protocol constituted a significant change from Florida’s prior procedure, see Jackson Response at 14-17; Anderson Response at 14-17.

         VI. Analysis

         A. Exhaustion

         The Prison Litigation Reform Act (PLRA) requires exhaustion of available administrative remedies before a 42 U.S.C. § 1983 action with respect to prison conditions may be initiated in a district court by a prisoner. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 . . . until such administrative remedies as are available are exhausted.”); see also Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (noting that a prisoner must exhaust administrative remedies before challenging the conditions of confinement, and concluding that the PLRA demands “proper exhaustion”). An inmate raising a § 1983 method-of-execution action is not excused from this exhaustion prerequisite. See Hill v. McDonough, 547 U.S. 573, 579 – 80 (2006) (finding inmate’s § 1983 action to enjoin defendants from executing him in manner they intended is a challenge to conditions of confinement); see also Nelson v. Campbell, 541 U.S. 637, 650 (2004) (noting inmate bringing method-of-execution claim under § 1983 is subject to state administrative exhaustion rules); see, e.g., Blankenship v. Owens, No. 1:11-cv-429-TCB, 2011 WL 610967, at *5 (N.D.Ga. Feb. 15, 2011) (finding exhaustion of § 1983 lethal injection challenge was required under Georgia law). Nevertheless, prisoners are not required to “specially plead or demonstrate exhaustion in their complaints.” See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the United States Supreme Court has recognized that “failure to exhaust is an affirmative defense under the PLRA[.]” Id.

         Importantly, exhaustion of available administrative remedies is “a precondition to an adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). See also Jones, 549 U.S. at 211. The Supreme Court has instructed that while “the PLRA exhaustion requirement is not jurisdictional[, ]” Woodford, 548 U.S. at 101, “exhaustion is mandatory . . . and unexhausted claims cannot be brought, ” Pavao v. Sims, 679 Fed.Appx. 819, 823 (11th Cir. 2017) (per curiam) (citing Jones, 549 U.S. at 211). Not only is there a recognized exhaustion requirement, “the PLRA . . . requires proper exhaustion” as set forth in the applicable administrative rules and policies of the institution. Woodford, 548 U.S. at 93.

Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper exhaustion of administrative remedies, which “means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).”

Id. at 90 (citation omitted). Indeed, “[p]roper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules[.]” Id.

         In Ross v. Blake, the Supreme Court instructed that “[c]ourts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA’s exhaustion requirement. The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are ‘available.’” 136 S.Ct. 1850, 1862 (2016). For an administrative remedy to be available, the “remedy must be ‘capable of use for the accomplishment of [its] purpose.’” Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008) (quoting Goebert v. Lee Cty., 510 F.3d 1312, 1322-23 (11th Cir. 2007)). In Ross, the Court identified three circumstances in which an administrative remedy would be considered “not available.” Ross, 136 S.Ct. at 1859. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. Next, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Finally, a remedy may be unavailable “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860.

         Because failure to exhaust administrative remedies is an affirmative defense, the defendant bears “the burden of proving that the plaintiff has failed to exhaust his available administrative remedies.” Turner, 541 F.3d at 1082. The Eleventh Circuit has articulated a two-step process that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.