ANDREW DEYOUNG v. BRIAN OWENS WARDEN CARL HUMPHREY OTHER UNKNOWN EMPLOYEES AND AGENTS (2011)

ORDER

This matter is before the Court on Plaintiff Andrew DeYoung's Motion for Temporary Restraining Order and Stay of Execution [Doc. No. 3] and Defendants' Motion to Dismiss [Doc. No. 14].

BACKGROUND

Andrew DeYoung is scheduled to die by lethal injection at 7:00pm on July 20, 2011. He was sentenced to death in October 1995 after being convicted on three counts of malice murder. DeYoung seeks declaratory and injunctive relief to prevent his execution alleging violations of the Eighth Amendment's prohibition on cruel and unusual punishment and the Fourteenth Amendment's guarantee of equal protection of the laws [Doc. No. 1].

I. DeYoung Sentenced to Death

On October 13, 1995, DeYoung was convicted in the Superior Court of Cobb County, Georgia of the malice murders of his parents Kathryn and Gary DeYoung, and his fourteen-year-old sister, Sarah.¹ DeYoung v. State, 493 S.E.2d 157, 161 (Ga. 1997).

The Georgia Supreme Court heard his appeal and, finding no error, affirmed his conviction and sentence. DeYoung, 493 S.E.2d at 157. DeYoung sought direct review of the judgment from the United States Supreme Court; the Court denied his petition for writ of certiorari. DeYoung v. Georgia, 523 U.S. 1141 (1998). Having exhausted his opportunities for direct review of his conviction and sentence,

DeYoung filed a state habeas corpus petition on February 5, 1999, which he amended on December 8, 2000, in the Superior Court of Butts County, Georgia. After an evidentiary hearing, the state habeas corpus court denied habeas corpus relief on June 2, 2003. DeYoung then filed a corrected application with the Georgia Supreme Court for a certificate of probable cause to appeal the denial of his state habeas petition on October 10, 2003, which was denied on January 20, 2004. Once again, DeYoung filed a petition for a writ of certiorari before the Supreme Court, this time to challenge the denial of state habeas corpus relief; and the petition was denied on October 4, 2004. DeYoung v. Schofield, 543 U.S. 892 (2004). Next, he filed a petition for writ of habeas corpus in this Court. DeYoung v. Schofield, No. 04-01559-CV-WBH (N.D. Ga. Aug. 22, 2008). That petition was denied and the denial affirmed by the Eleventh Circuit Court of Appeals. DeYoung v. Schofield, 609 F.3d 1260 (11th Cir. 2010), cert. denied, 131 S.Ct. 1691 (2011). Based on the execution order, DeYoung's seven-day window for execution begins at noon on July 20, 2011, and ends on July 26, 2011.

II. Lethal Injections in Georgia

In accordance with Georgia law, DeYoung is scheduled for execution by lethal injection. Under O.C.G.A. § 17-10-38(a),

[A]ll persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection. Lethal injection is the continuous intravenous injection of a substance or substances sufficient to cause death into the body of the person sentenced to death until such person is dead.

While the statute does not specify the substance(s) to be used, under the current lethal injection procedure promulgated by the Georgia Department of Corrections (“GDOC”) (the “Written Protocol”) (Pl.'s App. [Doc. No. 3-2], App. 1, p. 5–6), death-sentenced prisoners are administered a succession of three drugs. The barbiturate pentobarbital is injected first to induce unconsciousness. (Compl. [Doc. No. 1] p. 5 n.3). A check is performed after a prescribed waiting period following the administration of pentobarbital to ensure unconsciousness. (Pl.'s App. [Doc. No. 3-2] App. p. 5.) Next, the muscle relaxant pancuronium bromide is introduced. (Compl. [Doc. No. 1] p. 5 n.3.) Finally, potassium chloride is administered to induce cardiac arrest. (Id.) The entire drug-delivery process is monitored by an IV nurse present in the execution chamber. (Pl.'s App. [Doc. No. 3-2] App. 1, p. 5.)

III. DeYoung's Challenge to Execution by Lethal Injection

On May 13, 2011, the GDOC revised its lethal injection procedure, substituting 5,000 mg of the barbiturate pentobarbital for 2,000 mg of the barbiturate sodium thiopental (also referred to as sodium pentothal). (Defs.' Resp. [Doc. No. 11] p. 7.) DeYoung is scheduled for execution under the lethal injection procedure now in place.² In his claim brought against various officials and unknown employees ³ pursuant to 42 U.S.C. § 1983,⁴ DeYoung contends that the GDOC's lethal injection procedure, as written and as implemented, violates his equal protection rights under the Fourteenth Amendment and the use of pentobarbital will cause him unnecessary suffering in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

DeYoung seeks (1) a temporary restraining order (“TRO”) or preliminary injunction staying his execution; (2) expedited discovery; (3) an injunction preventing Defendants from proceeding without ensuring that DeYoung is protected from cruel and unusual punishment; and (4) a declaratory judgment that Defendants' current lethal injection procedure and the use of pentobarbital violate the Eighth and Fourteenth Amendments.

On July 18, 2011, Defendants filed their Motion to Dismiss and a brief in opposition to DeYoung's Motion for Temporary Restraining Order. Defendants' chiefly contend that DeYoung's challenge to Georgia's lethal injection procedure is barred by the statute of limitations, that he has failed to show an entitlement to injunctive relief, and that DeYoung has failed to state a claim upon which relief is warranted. That same day, DeYoung filed a response to Defendants' Motion to Dismiss, addressing specifically the statute of limitations bar.

On July 19, 2011, the Court held a hearing on DeYoung's Motion for Temporary Restraining Order and Stay of Execution.

DISCUSSION

I. DeYoung's Motion for TRO and Stay of Execution is Denied

A. Legal Standard

To prevail on his Motion for Temporary Restraining Order and Stay of Execution, DeYoung must demonstrate that (1) he will suffer irreparable harm in the absence of the TRO or stay; (2) there is a substantial likelihood of success on the merits of his claim; (3) the harm he is threatened with in the absence of a temporary restraining order (TRO) or stay outweighs the harms to Defendants if a TRO is issued; and (4) the TRO or stay is not adverse to the public interest. Parker v. State Bd. of Pardons and Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001); Blankenship v. Owens, No. 1:11-cv-429-TCB, 2011 WL 610967, at *9 (N.D. Ga. Feb. 15, 2011); see also Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir. 2008) (“The Supreme Court of the United States has explained that a stay is an equitable remedy not available as a matter of right and before a court grants a stay, it must consider the relative harms to the parties, the likelihood of success on the merits, and the extent to which the inmate has delayed unnecessarily in bringing the claim.”) (internal quotations omitted).

The burden of persuasion rests with the movant and he must carry that burden by a clear showing in relation to each of the listed factors. Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 573 (11th Cir. 1974).

The United States Supreme Court has held that “[a] stay of execution may not be granted [on grounds alleging that state's three-drug lethal injection method of capital punishment posed unacceptable risk of significant pain and was cruel and unusual under the Eighth Amendment] ․ unless the condemned prisoner establishes that the state's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives.” Baze v. Rees, 553 U.S. 35, 61 (2008).

B. Analysis

DeYoung's request for a TRO and stay of execution is denied because he has absolutely no likelihood of success on the merits, and the other factors are neutral or barely tip in his favor. See Scott v. Roberts, 612 F.3d 1279, 1297 (11th Cir. 2010) (“[T]he less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor.”).

1. DeYoung Shows Irreparable Harm

The Court concedes for the purposes of this discussion that DeYoung will suffer irreparable harm in the absence of the TRO or stay. See Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (holding that when an inmate faces execution in less than twenty-four hours, the requirements of irreparable harm are satisfied).

2. DeYoung Cannot Show Substantial Likelihood of Success on the Merits of His Section 1983 Claims

DeYoung's Section 1983 claims allege constitutional violations under the Eighth Amendment and the Fourteenth Amendment. DeYoung cannot show substantial likelihood of success on the merits of his constitutional claims as they are all barred by the statute of limitations and they are all substantively inadequate.

a. DeYoung's Eighth Amendment Claim is Barred by the Statute of Limitations

DeYoung's Eighth Amendment claim is barred by the statute of limitations. Defendants argue that DeYoung's challenge to Georgia's lethal injection procedure as the method of his execution is barred by the statute of limitations. (Defs.' Resp. [Doc. No. 11] p. 4.)

Under Eleventh Circuit precedent, a complaint filed years beyond the expiration of the applicable statute of limitations does “not have a significant possibility of success on the merits” of the claim. Crowe, 528 F.3d at 1293; see also McNair v. Allen, 515 F.3d at 1178 (recognizing that the threshold question is whether the complaint was barred by the statute of limitations and concluding that “the district court abused its discretion by determining [the plaintiff] had a significant possibility of success on the merits of his claim when, in fact, the complaint was filed beyond the applicable two-year 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.” Crowe, 528 F.3d at 1292. In Georgia, the statute of limitations applicable to personal injury claims is two years. Id.; O.C.G.A. § 9-3-33.

Further, “a method of execution claim accrues on the later of the date on which state review is complete, or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.” McNair, 515 F.3d at 1174.

As is indicated above, DeYoung's petition for a writ of certiori was denied by the United States Supreme Court on May 26, 1998. DeYoung, 523 U.S. at 1141. On October 5, 2001, lethal injection became the method of execution applicable to DeYoung (changed from electrocution) through the Georgia Supreme Court's opinion in Dawson v. State, 554 S.E.2d 137 (Ga. 2001). In Dawson, the court stated: “we direct that any future executions of death sentences in Georgia be carried out by lethal injection in accordance with O.C.G.A. § 17-10-38, as amended ․” Id. at 328. Accordingly, the statute of limitations for DeYoung's § 1983 claims began to run on October 5, 2001. See Crowe, 528 F.3d at 1293 (indicating that statute of limitation began accruing for a Georgia inmate “no later than 2001, when, after direct review of [the inmate's] convictions had been completed [in 1996], [the inmate] became subject to the method of lethal injection that he challenges”). In accordance with McNair, DeYoung was required to bring his claims or challenges to Georgia's lethal injection protocol within two years of October 5, 2001.

The present complaint was filed on July 15, 2011, approximately eight years beyond the October 5, 2003 expiration of the statute of limitations. Thus, the Court finds that DeYoung has not met his burden of making a clear showing of likelihood of success on the merits of his § 1983 action.

The Court recognizes that on May 13, 2011, Georgia changed its lethal injection protocol to substitute 2,000 mg of sodium pentothal with 5,000 mg of pentobarbital as the anesthetizing agent. (Defs.' Resp. [Doc No. 11] p. 7.) Two recent Eleventh Circuit cases provide guiding authority regarding the scope of this change: Powell(Williams) v. Thomas, 641 F.3d 1255 (11th Cir. 2011) and Powell v. Thomas, No. 11-1613, —F.3d —, 2011 WL 2437498 (11th Cir. June 15, 2011).⁵

In Powell(Williams),the Eleventh Circuit held that a change in Alabama's lethal injection protocol replacing sodium thiopental with pentobarbital “does not constitute a significant alteration” to the lethal injection protocol. Id. at 1258. According to the Eleventh Circuit, “[t]he evidence presented [did] not demonstrate that the ․ use of pentobarbital creates substantial risk of serious harm to [the] plaintiff.” Id.

In Powell, the Eleventh Circuit extended the Powell (Williams) holding that the change to pentobarbital was insignificant and, as such, the change did not reset the statute of limitations.

Recognizing both Powell decisions, in his responsive pleading, DeYoung acknowledges that “the Eleventh Circuit has recently ruled under similar circumstances that an action like [his] is time-barred.” (Pl.'s Resp. [Doc. No. 15] p. 2.) DeYoung contends, however, that the record he produced “undermine[s] the premise of the Eleventh Circuit's decision,” (id. at p. 2), based primarily on the events surrounding Georgia's recent execution of Roy Blankenship. As is demonstrated below in this Court's discussion on the Eighth Amendment, however, DeYoung's evidence from the Blankenship execution does not compel a finding that the change to pentobarbital is significant such that the limitations period would be reset. See Powell, 2011 WL 2437498, at *4. DeYoung's claim is thus barred by the statute of limitations.

For this reason alone, DeYoung fails to meet his burden of showing that he has a likelihood of success on the merits of his Eighth Amendment claim.

b. DeYoung Fails to State a Claim Under the Eighth Amendment

DeYoung also fails to show a likelihood of success in regard to his Eighth Amendment claim because his claim is not cognizable. “[A] typical Eighth Amendment challenge—alleging that the State will inflict cruel or unusual punishment—requires the defendant to demonstrate that (1) the State is being deliberately indifferent (2) to a condition that poses a substantial risk of serious harm to him.” Powell, 641 F.3d at 1257.⁶ “[T]o prevail on such a claim there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.” Baze, 553 U.S. at 50. Therefore, in order to obtain relief, DeYoung must demonstrate that there is a substantial likelihood he can satisfy those requirements.

DeYoung submits various witness accounts from Georgia's first execution—that of Roy Blankenship on June 23, 2011—using pentobarbital. According to these accounts, Blankenship, for example “appeared to grimace,” “jerked his head toward his left arm and made a startled face while blinking rapidly,” “lurched to his right arm, lunging with his mouth agape twice,” and “held his head up, and his chin smacked as he mouthed words that were inaudible to observers.” (Pl.'s App. [Doc. No. 3-11] App . 10, p. 2.)

DeYoung's expert witness, David B. Waisel, M.D., did not attend the Blankenship execution but formulated an opinion based on other witness accounts. According to Dr. Waisel, Blankenship “was inadequately anesthetized and was conscious for approximately the first three minutes of the execution and ․ he suffered greatly.” (Pl.'s App. [Doc No. 3-15] App. 14, ¶ 12.)

At most, however, DeYoung's evidence indicates, without establishing, “suffering” on Blankenship's part upon the administration of pentobarbital. However, Dr. Waisel entirely failed to provide a medical explanation for why pentobarbital might have caused Blankenship pain. To the contrary, Dr. Waisel testified that a patient will not feel pain at the moment when a drug is introduced intravenously unless it is a drug, such as potassium chloride, which causes a burning sensation.

Moreover, according to Dr. Waisel's testimony, any “suffering” was short lived as it clearly ended within a few minutes—three minutes at the most—after the pentobarbital was injected. According to Baze, “what [the Eighth] Amendment prohibits is wanton exposure to objectively intolerable risk, not simply the possibility of pain.” 553 U.S. at 61–62 (citation and internal quotation marks omitted). DeYoung's evidence fails to meet this standard. Even if pentobarbital might in some cases cause some discomfort or pain, “it is clear that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.” Baze, 553 U.S. at 47. Further, DeYoung has failed propose an alternative method of execution that would avoid unnecessary suffering—sodium thiopental is no longer available. See Id. at 52 (“[T]he proffered alternatives must effectively address a substantial risk of serious harm. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.”) (internal citation and quotation marks omitted).

DeYoung, through his expert, also challenges pentobarbital's effectiveness in inducing anesthesia sufficient to avoid suffering. Aside from his expert's argument that there has been insufficient testing on pentobarbital, however, DeYoung presents no evidence to show that unconsciousness is not achieved following a 5,000mg injection of pentobarbital. Indeed, a consciousness check was performed on Blankenship minutes after he was injected with pentobarbital and prior to injection of the second drug pancuronium bromide as is required by GDOC's lethal injection procedure. (Pl.'s App. [Doc. Nos. 3-2, 3-11] App. 2, p. 5, App. 10, p. 2.) Effectively, the DeYoung execution cannot proceed until he is unconscious. See id. In summary, DeYoung has failed to show that pentobarbital is ineffective as an anesthetic, and this Court concludes, as did the Eleventh Circuit in Powell, that the use of pentobarbital does not create a substantial risk of serious harm to inmates. Therefore, DeYoung cannot show a likelihood of success as to his Eighth Amendment claim.

c. DeYoung Cannot Succeed on His Fourteenth Amendment Equal Protection Claims

DeYoung appears to raise two Fourteenth Amendment equal protection challenges to Georgia's process and protocol for executing inmates. DeYoung first argues that Georgia's Written Protocol fails to describe many of the necessary and important procedures for executing an inmate; thus each execution is an ad hoc production wherein “different persons can be treated different ways, with no rational basis.” (Compl. [Doc No. 1] p. 28.) This is a facial attack on the Written Protocol. Second, DeYoung argues that Georgia consistently and materially deviates from its Written Protocol, resulting in disparate treatment that is not rationally related to any legitimate state interest. Both of DeYoung's challenges fail because they do not state a substantive claim, and they are barred by the statute of limitations; therefore, DeYoung cannot show a likelihood of success on his equal protection claims.

First, DeYoung's facial challenge to the Written Protocol is barred by the statute of limitations for the same reasons his Eighth Amendment claim was barred: DeYoung's claims accrued on October 5, 2001 and the two-year statute of limitations has expired. See Powell, 2011 WL 2437498, at *5 (affirming trial court's dismissal of Fourteenth Amendment claim when plaintiff failed to timely challenge Alabama's execution protocol); Wilson v. Humphrey, No. 5:10–CV–489, 2011 WL 2709696, *9 (M.D. Ga. July 12, 2011) (“However, Georgia, like Alabama, adopted lethal injection for executions in 2001 and, pursuant to Powell, a § 1983 claim based on Georgia's switch to pentobarbital may well be barred by the statute of limitations.”) (citing Alderman v. Donald, 293 F. App'x 693, 694 (11th Cir. 2008)).

Moreover, the Written Protocol does not violate DeYoung's rights to equal protection under the Fourteenth Amendment. To establish a Fourteenth Amendment equal protection claim, (i) a plaintiff must show that the government treated him disparately from similarly situated individuals; and (ii) when such disparate treatment neither burdens the plaintiff's fundamental rights nor is based on his membership in a suspect class, the plaintiff must show the government had no rational basis for its actions. Leib v. Hillsborough Cnty. Pub. Transp. Comm'n, 558 F.3d 1301, 1305–06 (11th Cir. 2009).

DeYoung does not claim that his fundamental rights are being violated or that he is a member of a suspect class; thus, Defendants need only meet the rational basis test. That test asks: “(1) whether the government has the power or authority to regulate the particular area in question, and (2) whether there is a rational relationship between the government's objective and the means it has chosen to achieve it.” Id. at 1306. The Eleventh Circuit characterizes the rational basis test as “easily met.” Id. Indeed, “under rational basis review, a state has no obligation to produce evidence to sustain the rationality of [its actions].” Id. Instead, the party challenging the government's action bears the burden of negating every conceivable basis that might support the action, “even if that basis has no foundation in the record.” Id.

DeYoung alleges that the Written Protocol violates the Equal Protection Clause because the protocol is riddled with gaps, which results in disparate treatment, with no rational basis. It is telling that DeYoung cites only one case in which a state's lethal injection practices violated an inmate's equal protection rights—Cooey v. Kasich, No. 2:10–cv–27, 2011 WL 2681193 (S.D. Ohio July 8, 2011). (See Compl. [Doc. No. 1] p. 28–29) In Cooey, the holding hinged upon Ohio's violations of its written protocols, rather than ostensible gaps in the protocol; thus Cooey is inapposite. 2011 WL 2681193, at *32–33. In fact, there is no support for DeYoung's novel proposition that, in order to avoid running afoul of the Equal Protection Clause, Georgia must produce a written protocol that is detailed enough to insure that every execution is precisely identical.

DeYoung's second equal protection challenge likewise fails to state a claim, and is barred by the statute of limitations. DeYoung attempts to allege an equal protection claim by recasting Georgia's supra-protocol protective measures as harmful “deviations.”

Unlike DeYoung's facial attack to the Written Protocol, there is at least some authority for the proposition that a state could violate the Equal Protection Clause if it materially and repeatedly deviates from its lethal injection protocols. See Cooey, 2011 WL 2681193, at *32–33. In Cooey, the court held that Ohio violated the Equal Protection Clause by repeatedly deviating from “core” protections afforded under its written protocol. Id. Ohio deviated from its core procedures in four ways: (1) by failing to document the preparation of the execution drugs, id. at *21; (2) by letting a non-IV team member attempt to insert an IV into an inmate, and failing to oversee that process, id. at *20, *26; (3) by performing an execution despite the absence of a key medical team member, id. at *23; and (4) by failing to assess an inmate's veins to ensure the IV could be inserted, which contributed to a “botched” execution, id. at *22, *32–33. The court reasoned that Ohio's “only rationale for core deviations that eliminate safeguards and introduce greater uncertainty into the execution process is to simply complete the executions at all or nearly all costs. [And the] [m]ere pursuit of administrative convenience that risks flawed executions is not a legitimate state interest.” Id. at *30.

Here, DeYoung complains of the following benign safeguards: (a) nurses inserting IVs into inmates, even though the Written Protocol does not require the person inserting the IV to have any specific training, experience, or credentials; (b) two nurses assisting during executions, when the Written Protocol only requires one; (c) nurses performing numerous consciousness checks, though the Written Protocol does not describe any specific procedures; and (d) team members checking the IV for infiltration or leakage, despite no mention of this safeguard in the Written Protocol.⁷ It is clear that DeYoung misapplies the holding in Cooey as the Court is hard pressed to label Georgia's actions as “deviations.” The term “deviate” casts a pejorative tone, and evokes a departure from a standard or norm. In contrast to the deviations in Cooey that eroded safeguards and violated the protocol, the “deviations” that DeYoung complains of actually enure to the benefit of the inmates and are consistent with the Written Protocol. This fundamental distinction undoes DeYoung's “deviation” claim: it goes without saying that providing additional safeguards is a legitimate state interest.

DeYoung's challenge to the “deviations” is also barred by the statute of limitations. See Powell, 2011 WL 2437498, at *5; Wilson, 2011 WL 2709696, at *9. First, Georgia's supra-protocol safeguards have been in place since at least May 2008; therefore, the limitations period has run. See Alderman v. Donald, No. 1:07-CV-1474-BBM (N.D. Ga. May 2, 2008) aff'd on other grounds, 293 Fed App'x. 693 (2008), cert. denied, 127 S. Ct. 27 (2008) (finding that multiple trained nurses are on the lethal injection IV team, and that the nurses insert the IVs, check for leaks and problems with intravenous flow, and monitor the inmate for signs of consciousness).

Second, even if the safeguards practice began within the last two years, DeYoung's claim is barred because the limitations period was not reset by slight and benign deviations from the Written Protocol. See Powell, 2011 WL 2437498, at *4 (ruling that replacing sodium thiopental with pentobarbital does not constitute a significant alteration that resets the limitations period); Henyard, 543 F.3d at 648 (holding that adding a consciousness check to a lethal injection protocol is not a significant alteration that restarts the limitations period).

The Court concedes that the “deviations” from the Written Protocol in this case were made in practice, and are thus distinguishable from the written alterations to the protocols discussed in Powell and Henyard. But this is a distinction without a difference. The real inquiry is whether the supra-protocol safeguards will subject DeYoung to a materially different method of execution. See McNair, 515 F.3d at 1177 n.6 (holding that the statute of limitations begins to run anew when an execution protocol undergoes a “significant” or “material” alteration, such as switching from electrocution to lethal injection).

Here, the “deviations” were minor and benign: e.g., adding additional nurses, requiring additional training, and providing additional oversight. Such changes are akin to those made in Powell and Henyard—respectively, switching to pentobarbital, and adding a consciousness check. Because the deviations do not result in a “significant change” to the manner in which DeYoung will be executed, his claim accrued when Georgia switched to lethal injection and is thus barred.

Because DeYoung cannot state a claim under the Fourteenth Amendment, and because his claims are barred by the statute of limitations, he cannot show a likelihood of success on the merits.

3. The Balance of Harms is Equivocal

As stated above, DeYoung bears the burden of showing that the harm he is threatened with in the absence of a TRO/stay outweighs the harm to Defendants if the TRO/stay is ordered. DeYoung argues that the threatened injury to him is “extremely serious, while [ ] Defendants “would lose virtually nothing” if the Court were to issue a TRO. (Pl.'s Mot. [Doc. No. 3] p. 3.) DeYoung states that Defendants “would still have the right to execute [him]; they would just have to do so with constitutional drugs and methods.” (Id. at p. 3.)

In Crowe v. Donald, the Eleventh Circuit held that “[a] defendant's interest in being free from cruel and unusual punishment is primary; however, the State's interest in effectuating its judgment remains significant.” 528 F.3d at 1292. The Crowe court further stated: “[v]ictims of crime also ‘have an important interest in the timely enforcement of a sentence.’ ” Id. (quoting Hill, 547 U.S. at 584). Given the state's interest, “the Supreme Court of the United States has explained that a stay is an equitable remedy not available as a matter of right and before a court grants a stay, it must consider ․ ‘the extent to which the inmate has delayed unnecessarily in bringing the claim.’ ” Crowe, 528 F.3d at 1292 (quoting Nelson v. Campbell, 541 U.S. 637, 649-50 (2004)). Therefore, there is “a strong equitable presumption against granting relief where the claim could have been brought at such a time as to allow consideration of the merits without requiring a stay.” Hill, 547 U.S. at 574–75.

Defendants argue that DeYoung was dilatory by filing his Motion for Temporary Restraining Order five days before his scheduled execution. (Defs.' Resp. [Doc. No. 11] p. 4.) They contend that DeYoung “has had ample opportunity to challenge his sentence and has had ten years to raise the issue he now raises.” (Id. at p. 38.)

Here, the state of Georgia and DeYoung's victims have a clear interest in the timely enforcement of the judgment against DeYoung. Against this interest, DeYoung summarily states that the harms he faces are “extremely serious.” (Pl.'s Mot. [Doc. No. 3] p. 3.) The Court assumes that DeYoung refers to the threat of being subjected to cruel and unusual punishment if Georgia is allowed to use pentobarbital. As discussed above, DeYoung has failed to show that the use of pentobarbital would result in needless suffering.

Moreover, DeYoung has been dilatory in filing his Complaint. DeYoung has had ten years to challenge the method of execution. While it is arguable that DeYoung delayed bringing his claim because (a) he recently learned of Georgia's switch from sodium thiopental to pentobarbital, and (b) much of his complaint is based on the Blankenship execution, which occurred on June 23, 2011; he nevertheless has been somewhat dilatory by filing his claim on July 15, 2011—only five days before his execution date. Certainly DeYoung could have marshaled his arguments earlier, which would have removed some of the urgency from his request for a stay. See Crowe, 528 F.3d at 1293 (discussing several decisions in which the Eleventh Circuit (i) refused to grant a dilatory stay sought on the eve of execution and (ii) held that a delay of more than five years in bringing a civil rights complaint was unreasonable).

Given the State's and victims' interests, the questionable nature of DeYoung's interest, and DeYoung's dilatory filing, the balance of harms in this case is equivocal.

4. Public Interest

As set forth above, DeYoung has the burden of making a clear showing that the TRO/stay is not adverse to the public's interest. DeYoung states that the “public has a strong interest in ensuring that government officials are acting within the parameters of the Eighth and Fourteenth Amendments to the United States Constitution,” and that “[a] temporary restraining order would serve the public's interest in ensuring that executions are conducted in a manner consistent with the Constitution.” (Pl.'s Mot. [Doc. No. 3] p. 3.) Likewise, the victims of a condemned inmate, “have a strong interest in seeing the inmate's punishment exacted, particularly because the crimes are usually heinous and the victims are entitled to closure.” Blankenship, 2011 WL 610967, at *12.

As there is a clear public interest in enforcing DeYoung's judgment, and because DeYoung fails to show that the use of pentobarbital will be inconsistent with the Constitution, the Court finds the public interest factor is likely neutral.

In summary, this Court holds that DeYoung has failed to demonstrate that he is entitled to a TRO or stay of his execution.

II. Defendants' Motion to Dismiss is Granted

Defendants seek dismissal of the complaint on multiple grounds, including the contention that DeYoung's § 1983 claims are barred by the statute of limitations. DeYoung's response in opposition to the Motion to Dismiss is restricted to arguments addressing the statute of limitations bar. (Pl.'s Resp. [Doc. No. 15].) Above, in discussing the motion for TRO, the Court presents in great detail its analysis of the applicability of the statute of limitations to DeYoung's claims. Finding that DeYoung's response to the Motion to Dismiss presents no compelling or previously unaddressed arguments, the Court concludes that DeYoung's § 1983 claim is barred by the statute of limitations.⁸ As such, dismissal of the complaint is warranted.⁹

CONCLUSION

Based on the foregoing discussion, the Plaintiff's Motion for Temporary Restraining Order and Stay of Execution [Doc. No. 3] is hereby DENIED, Defendants' Motion to Dismiss [Doc. No. 14] is GRANTED, and the Clerk is DIRECTED to close the instant action.

SO ORDERED, this 20th day of July, 2011.

FOOTNOTES

1.   His accomplice David Michael Hagerty was also charged and pled guilty to the murders, receiving three consecutive life sentences.

2.   Georgia's substitution of pentobarbital for sodium thiopental is in line with the substitution made by other states. A number of states have recently adopted the use of pentobarbital as U.S. manufactured sodium thiopental is no longer available following the decision of Hospira Inc., the sole U.S. manufacturer of the drug, to discontinue its production.

3.   As a preliminary matter, the Court recognizes that generally “fictitious-party pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). There is a “limited exception to this rule when the plaintiff's description of the defendant is so specific as to be at the very worst, surplusage.” Id. (internal quotations marks omitted). Here, DeYoung describes the unknown defendants as persons “involved in the development and implementation of the [GDOC's] execution procedures, including procedures governing the preparation and administration of drugs designed to execute people.” (Compl. [Doc. No. 1] p. 3.) The Court finds DeYoung's description insufficient to identify (for purposes of service of process) the proposed defendants among the many GDOC employees. Dean v. Barber, 951 F.2d 1210, 1216 n.6 (11th Cir. 1992) (indicating that the person to be sued should be adequately described “so that the person could be identified for service”). Accordingly, the unidentified defendants are hereby dismissed as parties to this suit.

4.   Section 1983 creates a cause of action against any person who acts in violation of the Constitutional rights of another while acting under the color of state law. Here, DeYoung challenges the constitutionality of the execution procedure he is scheduled to undergo. Such challenges are appropriately brought under § 1983. Hill v. McDonough, 547 U.S. 573, 576 (2006); McNair v. Allen, 515 F.3d 1168, 1176 (11th Cir. 2008) (“[T]he Supreme Court has sanctioned the filing of § 1983 claims challenging the constitutionality of execution methods.”).

5.   The Court uses the citation “Powell(Williams)” because the substance of the Eleventh Circuit's opinion (issued May 19, 2011) addresses the claims of the case intervenor, Jason Oric Williams. In the subsequent opinion (issued June 15, 2011), Powell v. Thomas, No. 11-1613, 2011 WL 2437498 (11th Cir. June 15, 2011), the Eleventh Circuit addresses the claims of the named plaintiff, Eddie D. Powell.

6.   The Eighth Amendment is applicable to the states through the Fourteenth Amendment's Due Process Clause. Robinson v. California, 370 U.S. 660, 666 (1962).

7.   DeYoung also alleges that the state had illegally procured a batch of sodium thiopental. This allegation is irrelevant to the present inquiry. First, Georgia no longer uses sodium thiopental for lethal injections. Second, in Hammond v. Owen et al., Case No. 2011CV195623 (Ga. Sup. Ct. Jan. 25, 2011), the court ruled that Georgia could use the imported sodium thiopental without violating the Eighth Amendment; thus it could not be a material deviation. Id. at *3.

8.   As the Court concludes that the statute of limitations serves as a determinative bar to the DeYoung's claim, the Court does not address Defendants' remaining arguments in favor of dismissal.

9.   The Court's dismissal of the claims against the defendants identified simply as “Other Unknown Employees and Agents” of the GDOC was addressed in a previous section of this order. See Background supra Part III, note 3.

HONORABLE STEVE C. JONES United States District Judge