United States District Court, M.D. Florida, Jacksonville Division
CHARLES G. BRANT, Plaintiff,
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. FRED ANDERSON, JR., Plaintiff,
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,
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.
MORALES HOWARD, UNITED STATES DISTRICT JUDGE
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). 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).
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). 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). 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.
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.
convicted Anderson of the 1999 first degree murder of Heather
Young.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).
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. 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. 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.
Florida’s Lethal Injection Protocols and
Plaintiffs’ § 1983 actions
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
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). 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).
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);
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).
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). 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).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).
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). 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).
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
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,  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.
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. 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.
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.
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.
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.
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 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.
Motion to Dismiss Standard
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).
“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).
Summary of the Arguments
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; 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.
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
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
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.
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