Kenneth Eugene Smith v. Commissioner, Alabama Department of Corrections.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13781
____________________
KENNETH EUGENE SMITH,
Plaintiff-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF
CORRECTIONS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:22-cv-00497-RAH
____________________
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2 Opinion of the Court 22-13781
Before WILSON, J ILL PRYOR , and GRANT, Circuit Judges.
PER CURIAM:
Kenneth Eugene Smith is a death row inmate in the custody
of the Alabama Department of Corrections (ADOC) at William C.
Holman Correctional Facility (Holman). Smith sued the Commis-
sioner of ADOC, John Hamm, for alleged constitutional violations
under 42 U.S.C. § 1983. Smith appeals the district court’s order
granting the Commissioner’s motion to dismiss and the district
court’s order denying Smith’s motion to amend judgment. Smith
also moves in this court to stay his execution—set for Thursday,
November 17, 2022—pending this appeal.
After careful review and with the benefit of oral argument,
we REVERSE and REMAND. Further, we deny as moot Smith’s
motion for stay of execution pending appeal.
I.
In April 1996, a jury convicted Smith of capital murder based
on the robbery and murder of Elizabeth Sennett.
Smith v. State,
908 So.2d 273, 278 n.1, 279 (Ala. Crim. App. 2000). Ultimately, the
jury recommended by a vote of 11 to 1 a sentence of life imprison-
ment without the possibility of parole.
Id. at 278. Yet the trial
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22-13781 Opinion of the Court 3
judge overrode the jury’s recommendation and sentenced Smith to
death.1
Id.
On June 24, 2022, Alabama moved to set Smith’s execution
date. On September 30, 2022, the Supreme Court of Alabama
granted Alabama’s motion and set Smith’s execution for Thursday,
November 17, 2022.
On August 18, 2022, Smith sued the Commissioner asserting
two Section 1983 claims. First, Smith alleged a constitutional chal-
lenge to Alabama’s method of execution. He argued that ADOC
has substantially deviated from its Execution Protocol to the point
that it would subject Smith to intolerable pain and torture in viola-
tion of the Eighth Amendment. Second, Smith alleged that his ex-
ecution would violate his Fourteenth Amendment due process
rights based on ADOC’s failure to provide him with the infor-
mation necessary to make an informed decision on whether to
elect nitrogen hypoxia as his method of execution.
The Commissioner moved to dismiss Smith’s complaint, ar-
guing that Smith’s claims were time barred by the two-year statute
of limitations. Smith opposed but also sought leave to amend his
complaint. In response to allegations that ADOC used a cutdown
1 In 2017, Alabama amended its law to no longer permit judicial override in
capital cases.
See Ala. Code § 13A-5-47(a) (“Where a sentence of death is not
returned by the jury, the court
shall sentence the defendant to life imprison-
ment without parole.”) (emphasis added).
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4 Opinion of the Court 22-13781
procedure and intramuscular sedation on a prior inmate,2 the
Commissioner represented to the district court that it would not
attempt either of those procedures in Smith’s execution.
The district court granted the Commissioner’s motion to
dismiss with prejudice. Specifically, the district court found that
Smith’s Eighth Amendment claim was a challenge to Alabama’s
entire lethal injection protocol. As a result, the court held that
Smith’s claims were time barred because the latest that Smith could
have objected to Alabama’s Execution Protocol was December 31,
2021—two years after Alabama released its redacted version of its
Execution Protocol.3 The court also found that Smith’s Four-
teenth Amendment claims were time barred because the time to
elect nitrogen hypoxia ended in July 2018, and related claims had
to be filed by July 2020. The district court ultimately incorporated
into its order the Commissioner’s stipulation that he would not
employ a cutdown procedure or intramuscular sedation in Smith’s
execution. The district court further ordered the Commissioner
not to deviate from the Execution Protocol.
2 On July 28, 2022, ADOC executed Joe Nathan James. For three hours, James
was behind closed curtains with Alabama’s execution team who proceeded to
attempt intravenous (IV) access. Two doctors have opined on what hap-
pened, with one doctor finding that ADOC attempted a cutdown procedure
and the other doctor disagreeing with that assessment.
3 In March 2019, this court affirmed the district court’s order to release Ala-
bama’s Execution Protocol.
Comm’r, Ala. Dep’t of Corr. v. Advance Loc. Me-
dia, LLC, 918 F.3d 1161, 1173 (11th Cir. 2019).
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22-13781 Opinion of the Court 5
Smith then moved to amend the judgment, specifically ask-
ing that the district court amend its judgment to dismissal without
prejudice to allow Smith to replead his Eighth Amendment claim.
Smith’s proposed amended complaint focused on Joe Nathan
James’s execution in July 2022 and the attempted execution of Alan
Eugene Miller in September 2022 as evidence that ADOC deviated
from its protocol and will likely do it again. He further alleged that
ADOC’s “[u]se of [the] Protocol” would subject him to an Eighth
Amendment violation because, “as ADOC implements it,” he will
likely be subject to cruel and unusual punishment due to particular
physiological predispositions.4 To evidence ADOC’s handling of
prior condemned inmates with similar difficulties, Smith’s pro-
posed amended complaint details how long it took Alabama’s exe-
cution team to get intravenous (IV) access in James’s execution and
Miller’s attempted execution at Holman. In James’s execution,
James remained hidden behind a curtain for over three hours.
When the execution team could not access James’s veins to place
an IV, they allegedly employed a cutdown procedure. In Miller’s
attempted execution, Miller was strapped to a gurney for almost
two hours while the execution team attempted IV access. Smith
alleged that ADOC will likely either take advantage of the Execu-
tion Protocol’s lack of specificity or disregard or deviate from its
4 The Execution Protocol states that “[t]he standard procedure for inserting
IV access will be used,” but “[i]f the veins are such that [IV] access cannot be
provided, [an unknown person] will perform a central line procedure to pro-
vide [IV] access.”
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6 Opinion of the Court 22-13781
Protocol by attempting any means necessary to proceed with and
complete the execution, which often subjects the inmate to cruel
and intolerable pain.
The district court denied Smith’s motion. First, the court
determined that it did not commit a manifest error of law in dis-
missing Smith’s original complaint. Second, after considering
Smith’s amended complaint, the district court reversed course on
whether Smith’s claims were timely. The court found that Smith’s
allegations were challenges to specific deviations from Alabama’s
Execution Protocol, rather than a challenge to the Protocol as a
whole, and that Smith’s Eighth Amendment claim was therefore
not time barred in its entirety. But the district court determined,
after examining the proposed amended complaint, granting leave
to amend would be futile. Again, the district court reiterated that
Smith’s allegations that the Commissioner deviated from its Exe-
cution Protocol by using a cutdown procedure or intramuscular
sedation was mooted because the Commissioner stipulated under
oath not to use those procedures on Smith. The district court ex-
plained that, to support an Eighth Amendment violation, Smith
had to show how ADOC’s deviations—or how implementation of
its Execution Protocol more broadly—subjected Smith to a sub-
stantial risk of serious harm. The court explained that Smith’s
amended complaint failed to do so.
Smith timely appealed. Smith also seeks to stay his execu-
tion pending this appeal.
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22-13781 Opinion of the Court 7
II.
First, Smith argues that the district court erred in dismissing
his Eighth Amendment claim from his original complaint by re-
shaping it into a different claim. Second, Smith argues that the dis-
trict court erred in denying his request for leave to file his proposed
amended complaint, finding that Smith failed to plausibly state a
claim and thus amendment was futile. Third, Smith argues that
the district court erred in concluding that his Eighth Amendment
claim, specifically ADOC’s alleged use of a cutdown procedure and
intramuscular sedation, was mooted. Last, Smith argues the dis-
trict court erred by dismissing his Fourteenth Amendment due pro-
cess claim as untimely. Because we find that the district court erred
in not granting leave to amend Smith’s complaint because it found
amendment to be futile, we focus only on Smith’s arguments re-
lated to his allegations in his proposed amended complaint.
A.
First, Smith argues that the district court erred in concluding
that his Eighth Amendment claim, specifically ADOC’s alleged use
of a cutdown procedure and intramuscular sedation, was mooted.
He argues that despite the district court order prohibiting the Com-
missioner and his agents from employing a cutdown procedure, in-
tramuscular sedation, or other protocol violation, protocol viola-
tions may still occur.
We review the question of mootness de novo.
Coral Springs
St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004).
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8 Opinion of the Court 22-13781
An issue is moot when it “no longer presents a live controversy
with respect to which the court can give meaningful relief.”
Al
Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001) (per curiam)
(internal quotation mark omitted).
The district court’s order resolves Mr. Smith’s concern that
ADOC will likely violate the lethal injection protocol.5 Smith’s
proposed amended complaint—asserting ADOC’s alleged use of a
cutdown procedure, intramuscular sedation, or any other violation
of the protocol places him at risk of experiencing cruel and unusual
punishment—is no longer a live controversy because ADOC is pro-
hibited by court order from attempting those things. Thus, the dis-
trict court did not err in finding these allegations to be moot.
B.
Even if part of his claim is mooted, as we have concluded it
is, Smith contends that his proposed amended complaint nonethe-
less contained allegations that support an Eighth Amendment
method-of-execution claim that is not moot.6 Specifically, he
5 The district court has also placed ADOC on notice that severe sanctions will
result if there are any protocol deviations during Smith’s execution.
6 As a preliminary matter, Smith’s proposed amended complaint contains
some general protocol challenges that (we agree with the Dissent) are time-
barred. To challenge the Execution Protocol, Smith had to bring his claim
within the statute of limitations. “All constitutional claims brought under
§ 1983 are tort actions, subject to the statute of limitations governing personal
injury actions in the state where the § 1983 action has been brought.”
McNair
v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). Thus, in order to have his claim
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22-13781 Opinion of the Court 9
argues that the Execution Protocol does not expressly prevent the
hours-long attempt to establish intravenous access that allegedly
resulted in superadded pain during James’s execution and Miller’s
attempted execution. We agree with Smith that this claim is not
mooted by the district court’s order that ADOC not violate its Ex-
ecution Protocol. We next ask whether these remaining allega-
tions state a claim under the Eighth Amendment.7 In the context
of this appeal, we ask whether leave to amend the complaint would
have been futile.
Leave to amend under Federal Rule of Civil Procedure
15(a)(2) “shall be freely given when justice so requires.”
McKinley
v. Kaplan, 177 F.3d 1253, 1255 (11th Cir. 1999) (per curiam). But
heard, Smith was required to bring it within two years from the date the limi-
tations period began to run.
See Ala. Code § 6-2-38.
Although Alabama implemented lethal injection as its primary
method of execution, Ala. Code § 15-18-82.1(a), in 2002, the district court lib-
erally assumed (which the Commissioner does not argue against) that the re-
lease of the redacted Execution Protocol in 2019 was a substantial change and
thus allowed that to reset the statute of limitations. Smith therefore had until
the end of 2021 to bring his general challenge, which he failed to do. Smith
did not file his challenge until August 2022.
7 Smith pleaded these allegations alternatively as a deviation from or as an
implementation of the Execution Protocol. Either way, the court’s order that
ADOC not deviate from the Execution Protocol as written does not moot this
aspect of his claim. The parties disagree on whether the protocol permits an
extended attempt to achieve intravenous access via the first provided proce-
dure, so ADOC can, in its view, follow the protocol as written and per the
district court’s order while still subjecting Smith to the lengthy ordeal he chal-
lenges.
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10 Opinion of the Court 22-13781
leave to amend is not always guaranteed, including when amend-
ment would be futile.
See Garcia v. Chiquita Brands Int’l, Inc., 48
F.4th 1202, 1220 (11th Cir. 2022). “We generally review a district
court’s decision to deny leave to amend for abuse of discretion, but
review
de novo an order denying leave to amend on the grounds
of futility, because it is a conclusion of law that an amended com-
plaint would necessarily fail.”
Boyd v. Warden, Holman Corr. Fa-
cility, 856 F.3d 853, 864 (11th Cir. 2017).
We conclude that the district court erred in not granting
leave to amend Smith’s complaint because it found amendment to
be futile. After reviewing Smith’s proposed amended complaint de
novo, we conclude that he pleaded sufficient facts to plausibly sup-
port an Eighth Amendment method-of-execution claim that is not
barred by the applicable statute of limitations, and thus amend-
ment would not have been futile. As a result, the district court
erred in denying Smith’s leave to amend his complaint.
To state a plausible claim for relief under the Eighth Amend-
ment, Smith must plead “a substantial risk of serious harm, an ob-
jectively intolerable risk of harm that prevents prison officials from
pleading that they were subjectively blameless for purposes of the
Eighth Amendment.”
Baze v. Rees, 553 U.S. 35, 50 (2008) (internal
quotation marks omitted). The Eighth Amendment inquiry fo-
cuses on whether the state’s chosen method of execution “cruelly
superadds pain to the death sentence” by asking whether the state
has “a feasible and readily implemented alternative method of
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22-13781 Opinion of the Court 11
execution that would significantly reduce a substantial risk of se-
vere pain.”
Bucklew v. Precythe, 139 S. Ct. 1112, 1125, 1127 (2019).
We turn to Smith’s non-moot allegations, which detail how
the Execution Protocol does not specify how long the execution
team can attempt to access a vein before moving to a central-line
procedure, how this played out in the James execution and Miller
attempted execution, and how it will affect Smith’s execution. In
James’s execution and Miller’s attempted execution, the execution
team spent considerable time attempting to establish IV access. As
Smith alleges in his proposed amended complaint, by the time
James’s scheduled execution date occurred, James had no outstand-
ing litigation8 that would prevent his execution from starting at
6:00 p.m. CST as typically set by Holman. James entered the exe-
cution chamber behind a closed curtain and remained there for
over three hours while the execution team tried to access a vein.
In Miller’s attempted execution, Miller remained behind the closed
curtain for over two hours as the execution team attempted IV ac-
cess. Dr. Joel Zivot, an anesthesiologist who reviewed James’s au-
topsy findings and documents in Miller’s ongoing litigation about
8 Often with executions, the inmate seeks relief from the courts close to the
date of execution. As a result, ADOC often does not move the inmate into
the execution room until the courts resolve an inmate’s case.
See Miller v.
Hamm, -- F. Supp. 3d --, 2022 WL 16720193, at *2 (M.D. Ala. Nov. 4, 2022)
(describing how the Supreme Court vacated the district court’s injunction at
9:00 p.m. then at 9:55 p.m. Miller was taken to the execution room where prep
for his execution began).
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12 Opinion of the Court 22-13781
his attempted execution, opined that the risk of a prolonged ordeal
“are real and not theoretical”: “Reports after the attempted execu-
tion of AE Miller . . . indicate that ADOC personnel had the same
trouble establishing IV access that they had in JN James’ execution,
concluding their efforts after about two hours only as midnight ap-
proached when the death warrant expired.” These factual allega-
tions9 show a pattern of difficulty by ADOC in achieving IV access
with prolonged attempts.10
Smith alleges that it will be difficult to access his veins be-
cause of both general and specific risks. Dr. Zivot explained that
establishing IV access in an execution where the inmate knows
they will die increases the general risks with IV access. Dr. Zivot
discussed how extreme anxiety caused by an impending execution
triggers the condemned inmate’s sympathetic nervous system,
which in turn causes his or her blood vessels to constrict, making
them harder to locate for IV access. Dr. Zivot also discussed that
another general risk is that the execution team at Holman has likely
9 Based on the many news articles reporting on James’s execution, the time
James spent behind the curtain is a verifiable, true fact. Further, Miller’s length
of time has been supported by Miller’s own declaration in his lawsuit against
the Commissioner for the torture he experienced during that time frame.
10 Although there is little case law on the length of time typically needed to
obtain IV access during an execution, Kentucky’s protocol, which the Su-
preme Court in
Baze approved, gave a one-hour time limit to obtain IV access.
See 553 U.S. at 45.
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22-13781 Opinion of the Court 13
undergone less training and therefore possesses fewer skills than
medical professionals who establish IV’s regularly.11
Turning to Smith’s specific risks, Dr. Zivot explained that
Smith’s height and weight corresponds to a BMI that is borderline
obese and “[i]t is much more difficult to locate suitable veins in
obese individuals.” Also, Dr. Zivot discussed that Smith recently
started on medications for depression and insomnia, conditions
likely triggered in anticipation of his impending execution. Dr. Zi-
vot opined that Smith’s anxiety and anguish levels at his execution
will likely be high. Bolstering Smith’s specific risks is Dr. Zivot’s
declaration in which he opined that Smith’s “risks [for] a failed in-
travenous attempt are very likely quite similar in circumstance to
the recent failed attempt at IV access of” Miller.
Considering these allegations, Smith has plausibly alleged
that there will be extreme difficulty in accessing his veins. Because
of the difficulty in accessing Smith’s veins, Smith plausibly pleaded
that, considering ADOC’s inability to establish difficult IVs swiftly
11 ADOC’s execution team is unidentified, so the court has no way of know-
ing the medical training of the individuals who are setting up IV access. And
while we recognize the need to protect the specific individuals who perform
these functions, many other states detail what training and credentials are re-
quired for those individuals.
See Baze, 553 U.S. at 45 (detailing Kentucky’s
requirements);
Lopez v. Brewer, 680 F.3d 1068, 1075 (9th Cir. 2012) (discuss-
ing Arizona’s updated protocols along with the training and experience of the
IV team);
Cooey v. Strickland, 589 F.3d 210, 219 (6th Cir. 2009) (addressing
Ohio’s new protocol requiring that medical team meet certain training and
qualifications).
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14 Opinion of the Court 22-13781
and successfully in the past, he will face superadded pain as the ex-
ecution team attempts to gain IV access.
We also find that Smith plausibly pleads that there is an
available alternative method that will reduce the risk of severe
pain. In
Price v. Commissioner, Department of Corrections, we
found that Alabama’s statutorily authorized method of execution
(nitrogen hypoxia) could not be considered unavailable simply be-
cause no mechanism to implement the procedure had been final-
ized. 920 F.3d 1317, 1328 (11th Cir. 2019) (per curiam). Yet the
Commissioner continues to argue that Smith failed to provide an
available alternative method. The Commissioner completely
misses our point from
Price. We find that nitrogen hypoxia is an
available alternative method for method-of-execution claims. Fur-
ther, Smith has sufficiently pleaded that nitrogen hypoxia will sig-
nificantly reduce his pain.
Finally, accepting the allegations in Smith’s proposed
amended complaint, we agree with the district court that his
Eighth Amendment challenge is not plainly time barred. In his pro-
posed amended complaint, Smith details how long it took Ala-
bama’s execution team to establish IV access in James’s execution
and Miller’s attempted execution at Holman. It is the emergence
of ADOC’s pattern of superadding pain through protracted efforts
to establish IV access in the two previous execution attempts that
caused Smith’s claim to accrue. This pattern emerged at the onset
of Miller’s attempted execution. Thus, Smith’s Eight Amendment
challenge is not plainly time barred.
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22-13781 Opinion of the Court 15
Under a de novo review, we find that Smith’s proposed
amended complaint states a plausible claim for relief that was
brought within the statute of limitations. The district court should
have allowed Smith to file his proposed amended complaint. Thus,
the district court erred in denying Smith’s motion for leave to
amend his complaint on the ground that amendment would be fu-
tile.12
III.
Lastly, Smith moved to stay his execution while we consider
his appeal.13 At Smith’s request, we expedited briefing and held
oral argument to address Smith’s underlying arguments. Because
we have resolved Smith’s underlying appeal, Smith’s motion for
stay of execution pending appeal is DENIED as moot.
REVERSED AND REMANDED.
12 We find no error in the district court’s treatment of Smith’s remaining ar-
guments.
13 A stay pending appeal is appropriate only if the moving party establishes:
“(1) a substantial likelihood of success on the merits; (2) that the [stay] is nec-
essary to prevent irreparable injury; (3) that the threatened injury outweighs
the harm the [stay] would cause the other litigant; and (4) that the [stay] would
not be averse to the public interest.”
Gissendaner v. Comm’r, Ga. Dep’t of
Corr., 779 F.3d 1275, 1280 (11th Cir. 2015) (per curiam).
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22-13781 Grant, J., Dissenting 1
G RANT, Circuit Judge, dissenting:
The question before us is whether Smith’s proposed
amended complaint stated a plausible Eighth Amendment claim.
The majority concludes that that Smith plausibly alleged that
“there will be extreme difficulty in accessing his veins” for the lethal
injection procedure, and that “considering ADOC’s inability to es-
tablish difficult IVs swiftly and successfully in the past, he will face
superadded pain as the execution team attempts to gain IV access.”
Majority Op. at 13–14. Two problems with this conclusion come
immediately to mind: first, that claim is nowhere to be found in
Smith’s proposed amended complaint. And second, even if we re-
frame Smith’s Eighth Amendment claim as arising from the De-
partment’s demonstrated “inability to establish difficult IVs swiftly
and successfully,” it is barred by the two-year statute of limitations.
I respectfully dissent.
In his initial complaint, Smith alleged that execution by Ala-
bama’s lethal-injection process would violate his Eighth Amend-
ment rights. After the district court dismissed that claim as time
barred, Smith submitted a proposed amended complaint alleging
that the execution of Joe Nathan James and the attempted execu-
tion of Alan Eugene Miller “made clear for the first time that
ADOC’s lethal injection ‘protocol’ is entirely advisory—meaning
executions are being carried out by individuals who are either un-
able or unwilling to follow the Protocol.” Proposed Amended
Complaint ¶ 10;
see id. ¶ 25. He alleged that James’s autopsy
showed “two significant protocol violations”—an unauthorized
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2 Grant, J., Dissenting 22-13781
‘cutdown’ procedure” and “an unauthorized intramuscular injec-
tion”—and that eyewitness accounts indicated that the Depart-
ment may also have gone off-protocol by sedating James before the
execution began.
Id. ¶ 8;
see id. ¶¶ 27–46. He also alleged that the
Department deviated from its protocol during the attempted exe-
cution of Miller by strapping him to a gurney “in a stress position”
and by slapping him on his neck.
Id. ¶ 9;
see id. ¶¶ 48–56. And he
alleged that because the Department’s “lethal injection protocol is
only advisory,” permitting Alabama to execute him by that method
would expose him to “an intolerable risk of torture, cruelty, or sub-
stantial pain.”1
Id. ¶ 13. He did
not allege that executing him by
strictly following the written protocol would violate the Eighth
Amendment.
That is significant because, as the majority holds, the district
court’s order prohibiting any deviation from the lethal injection
protocol “resolves Mr. Smith’s concern that ADOC will likely vio-
late” the protocol during his execution. Majority Op. at 8. The
order renders his claim arising from anticipated protocol violations
moot—and that is the only claim alleged in his proposed amended
complaint.
1 In seeking leave to amend his complaint, Smith represented that his Eighth
Amendment claim was directed exclusively at deviations from the lethal injec-
tion protocol: “To be clear, Mr. Smith’s challenge is not to the entirety of the
protocol. It is to deviations from the protocol—namely, ADOC’s treatment
of the Protocol as advisory only—about which information has only recently
surfaced.” Doc. 24 at 2.
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22-13781 Grant, J., Dissenting 3
The majority concludes that Smith has stated an Eighth
Amendment claim with allegations that “detail how the Execution
Protocol does not specify how long the execution team can attempt
to access a vein before moving to a central-line procedure.” Major-
ity Op. at 11. But Smith has not made any such claim in his pro-
posed amended complaint, and we cannot rewrite his complaint
for him.
See West v. Warden, Comm’r, Alabama DOC, 869 F.3d
1289, 1299 (11th Cir. 2017);
see also United States v. Cordero, 7
F.4th 1058, 1068 n.11 (11th Cir. 2021) (even for pro se litigants, the
Court may not rewrite a deficient pleading).
Smith has urged us to interpret his proposed amended com-
plaint as raising a similar claim by arguing that repeatedly “jabbing”
the condemned inmate over a period of “nearly two hours” in an
attempt to establish an IV (as in Miller’s attempted execution) con-
stitutes a violation of the written protocol that also violates the
Eighth Amendment. Appellant’s Brief at 31–32. It would be a
stretch to say that Smith’s proposed amended complaint articu-
lated that claim, either. And even if it did, the proposed amend-
ment would still be futile.
The ordeal of being strapped to a gurney and repeatedly
jabbed with a needle while Department staff attempt unsuccess-
fully to start an IV line could eventually cross the line and amount
to cruel and unusual punishment. But whether the possibility that
Smith might endure such treatment is described as a deficiency in
the lethal injection protocol or a violation of it, that risk was or
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4 Grant, J., Dissenting 22-13781
should have been known to him more than two years before he
filed his initial § 1983 complaint on August 18, 2022.
As Smith himself alleges in his proposed amended com-
plaint, the Department attempted to execute Doyle Lee Hamm by
lethal injection on February 22, 2018. Proposed Amended Com-
plaint ¶ 62. Department staff tried for two-and-a-half hours to es-
tablish an IV line for Hamm, but were unable to do so.
Id. During
that two-and-a-half-hour period, Department staff “punctured
Hamm at least 11 times in his limbs and groin, causing him to bleed
profusely on the gurney.”
Id. The Department called off the exe-
cution, and Hamm’s experience was reported contemporaneously
in various news publications.
See, e.g.,
Doyle Lee Hamm punc-
tured at least 11 times in execution attempt, report states, Mont-
gomery Advertiser (March 6, 2018). Smith’s Eighth Amendment
claim related to the Department’s potentially extended efforts to
establish IV access is therefore barred by the two-year statute of
limitations.2
See McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir.
2008) (“a federal claim accrues when the prospective plaintiff
‘knows or has reason to know of the injury which is the basis of the
action.’” (citation omitted)).
2 Smith’s 42 U.S.C. § 1983 claim is governed by Alabama’s two-year statute of
limitations.
See Ala. Code 6-2-38;
McNair, 515 F.3d at 1173.
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22-13781 Grant, J., Dissenting 5
* * *
Smith’s concern about the Alabama Department of Correc-
tions’s difficulties with efficiently starting an IV line for its lethal
injection protocol is understandable—as is his concern that the De-
partment may be willing to disregard its protocol altogether if it is
unable to start an IV line in the usual way. But unfortunately for
everyone involved, the Department’s problems in quickly estab-
lishing IV access for lethal injection are nothing new. To the extent
that his proposed amended complaint states an Eighth Amend-
ment claim based on potentially extended efforts to start an IV, that
claim accrued more than two years ago, and it is therefore time
barred. And Smith’s claim that the Department is likely to violate
his Eighth Amendment rights by performing off-protocol proce-
dures during his execution—in starting an IV or otherwise—is
mooted by the district court’s order prohibiting any such devia-
tions. I would affirm the district court’s decision denying Smith’s
request to amend his complaint because the proposed amendment
would be futile.
See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th
Cir. 2007).
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