                 Case: 12-15191         Date Filed: 10/18/2012   Page: 1 of 11



                                                                      [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________

                                       No. 12-15191
                                   Non-Argument Calendar
                                 ________________________

                       D.C. Docket No. 3:12-cv-01036-UAMH-JBT

JOHN FERGUSON,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,

versus

WARDEN, FLORIDA STATE PRISON,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
DOES 1-50,

llllllllllllllllllllllllllllllllllllllllDefendants - Appellees.
                                      ________________________

                        Appeal from the United States District Court
                            for the Middle District of Florida
                              ________________________
                                   (October 18, 2012)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

         Appellant John Ferguson is a death row prisoner scheduled to be executed

by the State of Florida on October 18, 2012. The State originally scheduled his
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execution for October 16, 2012, but the state court stayed the execution to

determine whether Ferguson was sane to be executed. The state court found

Ferguson sane and subsequently denied his motion to stay the sentence of death.

      Ferguson also brought suit in federal district court, filing a complaint under

42 U.S.C. § 1983 and filing a motion for temporary restraining order, preliminary

injunction, and stay of execution. Ferguson contends that: (1) Florida’s three-drug

lethal injection protocol violates his right to be free from cruel and unusual

punishment under the Eighth Amendment; and (2) Appellees’ failure to abide by

the procedural safeguards of Florida’s lethal injection protocol violates his right to

equal protection under the Fourteenth Amendment.

      On October 10, 2012, the district court denied Ferguson’s motion,

concluding, inter alia, that Ferguson failed to demonstrate a substantial likelihood

of success on the merits of his Eighth and Fourteenth Amendment claims, and that

Ferguson failed to establish that he would suffer irreparable injury if the stay were

denied. This appeal followed.

      “A stay of execution is equitable relief which this Court may grant only if

the moving party shows that: (1) he has a substantial likelihood of success on the

merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay

would not substantially harm the other litigant; and (4) if issued, the injunction

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would not be adverse to the public interest.” DeYoung v. Owens, 646 F.3d 1319,

1324 (11th Cir. 2011) (internal quotation marks omitted). “We review the denial

of a stay of execution under the abuse-of-discretion standard.” Powell v. Thomas

(Powell (Williams)), 641 F.3d 1255, 1257 (11th Cir. 2011) (per curiam), cert.

denied Williams v. Thomas, 131 S. Ct. 2487 (2011).

A.    Substantial Likelihood of Success on the Merits

      1.      Eighth Amendment Violation

      Ferguson wages a four-pronged attack on Florida’s lethal injection protocol.

Ferguson first takes issue with Florida’s use of sodium pentobarbital as the first

drug in its three-drug lethal injection sequence. He next challenges Florida’s

September 4, 2012 substitution of vecuronium bromide for pancuronium bromide

as the second drug in the three-drug sequence. Ferguson then challenges the

manner in which the lethal injection protocol is implemented. Finally, Ferguson

contends that Florida’s use of a three-drug cocktail is no longer acceptable under

evolving standards of decency.

      In order for Ferguson to prevail on an Eighth Amendment claim, he

must demonstrate that:

           (1) the State is being deliberately indifferent (2) to a condition
           that poses a substantial risk of serious harm to him. In the lethal
           injection context, this standard requires an inmate to show an

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          objectively intolerable risk of harm that prevents prison officials
          from pleading that they were subjectively blameless for purposes
          of the Eighth Amendment.

DeYoung, 646 F.3d at 1325 (internal quotations marks and citations omitted). We

conclude that Ferguson has not demonstrated a substantial likelihood of success

on the merits of his Eighth Amendment claim.

      As a preliminary matter, Ferguson’s Eighth Amendment claim is clearly

barred by Florida’s four-year statute of limitations. See Van Poyck v. McCollum,

646 F.3d 865, 867 (11th Cir. 2011) (per curiam) (citing Henyard v. Sec’y, Dep’t of

Corr., 543 F.3d 644, 647 (11th Cir. 2008) (per curiam)). We have consistently

held that “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 v. Allen, 515 F.3d

1168, 1174 (11th Cir. 2008); see DeYoung, 646 F.3d at 1324–25; Powell v.

Thomas, 643 F.3d 1300, 1303–04 (summarizing the holding in McNair); Henyard,

543 F.3d at 647–48. Thus, Ferguson had four years from the date his sentence

became final, February 12, 2000, in which to file his challenge to Florida’s method

of execution absent a “substantial change” in Florida’s execution protocol.

Because the statute of limitations ran on February 13, 2004, Ferguson’s claim is

over eight years late.

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      Not only did Ferguson fail to submit his lethal injection challenge within the

statute of limitations, but our precedent also makes it abundantly clear that the use

of sodium pentabarbital as the first drug in the three-drug sequence does not

constitute a substantial change for the purpose of restarting the statute of

limitations. See Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir. 2011) (per

curiam); see also DeYoung, 646 F.3d at 1325; Powell, 643 F.3d at 1304–05;

Powell (Williams), 641 F.3d at 1258. Similarly, the substitution of vecuronium

bromide for pancuronium bromide as the second drug in the three-drug sequence

does not constitute a substantial change, as it is merely a substitution of one

bromide paralytic for another. See Powell, 643 F.3d at 1304 (recognizing the

minimal differences between sodium thiopental and sodium pentobarbital, as both

are “classfied as barbiturates” and they only differ “in their length of effect”

(citing Pavatt v. Jones, 627 F.3d 1336, 1337 (10th Cir. 2010)). Therefore,

Ferguson’s claims remain barred by Florida’s four-year statute of limitations.

      Even if the statute of limitations did not bar his § 1983 claim, this court has

already addressed the merits of Ferguson’s Eighth Amendment claim on multiple

occasions and found that the use of sodium pentobarbital in the lethal injection

sequence does not violate the Eighth Amendment. See Valle, 655 F.3d at 1225;

DeYoung, 646 F.3d at 1327; Powell (Williams), 641 F.3d at 1258. Further,

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although this court has not specifically dealt with the substitution of verconium

bromide as the second drug in the lethal injection protocol, Ferguson has failed to

demonstrate how Florida’s use of vecuronium bromide subjects him to a

substantial risk of serious harm. See Baze v. Rees, 553 U.S. 35, 61–62, 128 S. Ct.

1520, 1537 (2008) (plurality opinion). Ferguson’s speculation as to the parade of

horribles that could possibly occur during his execution does not meet the burden

of proof required by the Eighth Amendment. See DeYoung, 646 F.3d at 1325

(emphasis omitted) (noting that to violate the Eighth Amendment, the “risk must

be sure or very likely to cause . . . needless suffering”). Simply because an

execution method may inadvertently result in pain does not establish the sort of

“objectively intolerable risk of harm” necessary to establish an Eighth Amendment

violation. Baze, 553 U.S. at 50, 128 S. Ct. at 1531.

      Ferguson’s challenges to the implementation of the 2012 protocol also fail

to satisfy his Eighth Amendment requirement. The allegations concerning

insufficient safeguards and the execution team members’ lack of medical training

are without support. Ferguson’s barrage of “if-then” hypotheticals do not amount

to concrete evidence of an “objectively intolerable risk of harm” necessary to

establish an Eighth Amendment violation. See id.

      Lastly, Ferguson argues that the Eighth Amendment’s “evolving standards

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of decency” jurisprudence invalidates Florida’s use of a three-drug lethal injection

protocol. Specifically, Ferguson argues that the protocol presents “objectively

unacceptable risks of pain and suffering given the existence and increasingly

widespread use of the more humane one-drug protocol.”

      Under Baze, an inmate cannot successfully challenge a three-drug protocol

merely by suggesting that the one-drug protocol is a feasible or superior option; he

must also show that the current protocol creates a “demonstrated risk of severe

pain,” and that the proposed alternative method significantly reduces the risk of

that pain. Id. at 61, 128 S. Ct. at 1537; see Valle, 655 F.3d at app. 1237. Although

the one-drug protocol is a feasible alternative that could be readily implemented,

“a condemned prisoner cannot successfully challenge a State’s method of

execution merely by showing a slightly or marginally safer alternative.” Baze, 553

U.S. at 51, 128 S. Ct. at 1531. Ferguson offers nothing more than a simple

alternative to Florida’s current lethal injection protocol, and asks that this court

transform itself into a “board[] of inquiry charged with determining ‘best

practices’ for executions.” Id. This is not the role of the court.

      2.     Fourteenth Amendment Violation

      Ferguson also argues that Florida’s implementation of its three-drug

protocol violates his Fourteenth Amendment right to equal protection. “To state

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an equal protection claim, [Ferguson] must show that the State will treat him

disparately from other similarly situated persons.” DeYoung, 646 F.3d at 1327

(citing Amnesty Int’l. USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009)).

“Second, ‘[i]f a law treats individuals differently on the basis of . . . [a] suspect

classification, or if the law impinges on a fundamental right, it is subject to strict

scrutiny.’” Arthur v. Thomas, 674 F.3d 1257, 1262 (11th Cir. 2012) (per curiam)

(alterations in original) (quoting Leib v. Hillsborough Cnty. Pub. Transp.

Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009)).

      Ferguson fails to assert that any of the alleged deficiencies will result in

disparate treatment from other death row inmates. Under Florida’s 2012 protocol,

all death row inmates facing execution will be subject to the same sequence of

drugs, the same procedures, and the same safeguards in the execution process.

Ferguson has presented no evidence to substantiate his claims of disparate

treatment.

B.    Irreparable Injury

      We need not decide whether Ferguson has established irreparable injury

because he has failed to satisfy his burden regarding the substantial likelihood of

success on the merits. Accordingly, Ferguson’s motion for temporary restraining

order, preliminary injunction, and stay of execution is denied, and the district

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court’s order is affirmed.

      MOTION FOR TEMPORARY RESTRAINING ORDER,

PRELIMINARY INJUNCTION, AND STAY OF EXECUTION IS DENIED;

DISTRICT COURT’S ORDER IS AFFIRMED.




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CARNES, Circuit Judge, concurring:

      I fully concur in the per curiam opinion. I write separately only to note my

disagreement with my colleague’s view that the district court’s conclusion that

Ferguson failed to show irreparable injury is inconsistent with binding precedent.

Both In re Holladay, 331 F.3d 1169, 1177 (11th Cir. 2003), and Woodson v. North

Carolina, 428 U.S. 280, 303–04, 96 S.Ct. 2978, 2291 (1976), involve claims that

the defendant or movant should not be executed. Obviously, executing a

defendant who should not be executed inflicts an irreparable injury. That is not

the claim we have here. See Cooey v. Strickland, 604 F.3d 939, 946 (6th Cir.

2010).




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WILSON, Circuit Judge, concurring:

      Although I agree with the district court that Ferguson has failed to satisfy

his burden regarding the substantial likelihood of success on the merits, I do note

that the district court’s conclusion that Ferguson failed to show irreparable injury

is inconsistent with Eleventh Circuit and Supreme Court precedent. As a general

rule, in the circumstance of an imminent execution, this court presumes the

existence of irreparable injury. In re Holladay, 331 F.3d 1169, 1177 (11th Cir.

2003) (“We consider the irreparability of the injury that petitioner will suffer in

the absence of a stay to be self-evident.”). Further, the Supreme Court has

recognized that “death is a punishment different from all other sanctions in kind

rather than degree.” Woodson v. North Carolina, 428 U.S. 280, 303–04, 96 S. Ct.

2978, 2991 (1976). The irreversible nature of the penalty makes irreparable by

definition any injury inflicted in violation of the United States Constitution. In

this case, however, because Ferguson has failed to show the existence of any

constitutional violation under the “substantial likelihood” prong, we need not

address in depth the other requirements necessary to grant a stay of execution.




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