          Case: 16-17167   Date Filed: 12/07/2016   Page: 1 of 24


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17167
                      ________________________

               D.C. Docket No. 2:12-cv-00316-WKW-CSC



CAREY DALE GRAYSON, et al.,

                                                                    Plaintiffs,

and

RONALD BERT SMITH, JR.,

                                            Consolidated Plaintiff-Appellant,

                                 versus

WARDEN,
COMMISSIONER, ALABAMA DOC,


                                                    Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                           (December 7, 2016)
              Case: 16-17167     Date Filed: 12/07/2016    Page: 2 of 24


Before TJOFLAT, HULL, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Alabama death row prisoner Ronald Bert Smith is scheduled to be executed

by lethal injection on December 8, 2016. In April 2016, he filed a complaint in the

district court pursuant to 42 U.S.C. § 1983 challenging Alabama’s method of

execution as cruel and unusual under the Eighth Amendment and its policy

prohibiting counsel who is witnessing an execution from having access to a

cellular or landline phone as violating his right of access to the courts under the

First, Eighth, and Fourteenth Amendments. Smith’s case was consolidated with

the cases of other Alabama death row prisoners who had asserted similar claims in

the “Midazolam Litigation” that was pending in the district court.

      On November 18, 2016, the district court dismissed Smith’s § 1983 claims

as time-barred under the applicable statute of limitations. Smith has appealed that

ruling. Although he did not seek a stay of execution in the district court, Smith has

filed a motion for a stay of execution in conjunction with his appeal. In light of

Smith’s impending execution, the Court ordered expedited briefing on the appeal.

Having carefully considered the record and the arguments of the parties, we

AFFIRM the district court’s order and DENY Smith’s motion to stay his

scheduled execution.




                                           2
              Case: 16-17167    Date Filed: 12/07/2016   Page: 3 of 24


                                 BACKGROUND

      Smith shot and killed a convenience store clerk during a robbery of the store

in 1994. Smith v. State, 756 So. 2d 892, 901 (Ala. Crim. App. 1997). He was

convicted of capital murder and sentenced to death. Id. The details of the crime

are set forth in the Alabama court’s decision on Smith’s direct appeal. See id.

Smith was sentenced to death based on the sentencing judge’s determination that

the murder was “an execution-style slaying” during which the store clerk was

“pistol-whipped and beaten into helpless submission, but Smith nevertheless killed

him to avoid later identification” and that Smith was indifferent to or enjoyed the

clerk’s suffering, bragging and smiling or laughing about the killing when he

described it. Id. at 950–51. Smith’s direct appeal concluded in 2000. Smith v.

Alabama, 531 U.S. 830 (2000). His state post-conviction and federal habeas

proceedings concluded more than a year ago. Smith v. Thomas, 134 S. Ct. 513

(2014).

      On April 15, 2016, Smith filed a § 1983 complaint challenging under the

First, Eighth, and Fourteenth Amendments Alabama’s method of execution and its

policy denying counsel witnessing an execution access to a cell or landline phone.

Smith’s complaint contained claims identical to those asserted by other Alabama

death row prisoners in the Midazolam Litigation that was pending in the district




                                          3
               Case: 16-17167       Date Filed: 12/07/2016       Page: 4 of 24


court. The district court thus consolidated Smith’s case with the Midazolam

Litigation for discovery and trial.

       Like the other prisoners in the Midazolam Litigation, Smith primarily

challenges the constitutionality of Alabama’s three-drug lethal injection protocol.

When Smith was sentenced to death, Alabama executed condemned prisoners by

electrocution. See Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011). In

July 2002, Alabama adopted lethal injection as its preferred form of execution.1

Id. Since that time, Alabama has used a three-drug lethal injection protocol. See

Brooks v. Comm’r, Ala. Dep’t of Corr., 810 F.3d 812, 823 (11th Cir. 2016). The

first drug in the protocol is intended to render the inmate unconscious and prevent

him from experiencing pain during the execution. See id. The second drug is a

paralytic agent that inhibits voluntary muscle movements and stops respiration.

See id. The third drug interferes with the electrical signals that stimulate heart

contractions and causes cardiac arrest. See id.

       Currently, Alabama’s lethal injection protocol calls for the administration of:

(1) a 500-mg dose of midazolam, (2) followed by a 600-mg dose of rocuronium

bromide, and (3) finally, 240 milliequivalents of potassium chloride. From 2002

until April 2011, Alabama used sodium thiopental as the first drug in the sequence.
1
  The legislation implementing this change allowed prisoners already under a sentence of death
a 30-day window to choose electrocution as their method of execution, after which time they
would be deemed to have waived the right to request a method other than lethal injection. Ala.
Code § 15-18-82.1(b). Smith did not exercise his right to choose electrocution as his method of
execution.

                                               4
               Case: 16-17167       Date Filed: 12/07/2016      Page: 5 of 24


See Brooks, 810 F.3d at 823. Sodium thiopental became unavailable in 2011, and

Alabama began using pentobarbital as the first drug. See id. Pentobarbital became

unavailable in 2014. See id. Consequently, Alabama announced in September

2014 that it would begin using midazolam as the first drug in its lethal injection

protocol. See id. The second drug in the protocol has always been either

pancuronium bromide or rocuronium bromide 2, and the third drug has always been

potassium chloride. Id.

       At the time Alabama disclosed its intent to use midazolam in 2014, several

Eighth Amendment method-of-execution claims already were pending in the

district court. These claims challenged the substitution of pentobarbital for sodium

thiopental, and specifically alleged that the protocol Alabama had adopted in 2011

violated the Eighth Amendment because pentobarbital was not an adequate

anesthetic. When Alabama switched to midazolam in September 2014, the court

allowed the prisoners in these cases to amend their complaints to assert allegations

specific to midazolam. The district court then stayed these cases pending the

United States Supreme Court’s decision in Glossip v. Gross, 135 S. Ct. 2726

(2015), which squarely raised the constitutionality of Oklahoma’s use of

midazolam in a three-drug lethal injection protocol that is materially

indistinguishable from Alabama’s.

2
  Smith does not allege that there is a material difference between pancuronium bromide and
rocuronium bromide.

                                              5
              Case: 16-17167     Date Filed: 12/07/2016   Page: 6 of 24


      The Supreme Court issued the Glossip decision on June 29, 2015. Like the

Alabama prisoners in the Midazolam Litigation, the Oklahoma prisoners in Glossip

argued that the use of midazolam as the first drug in a three-drug lethal injection

protocol created a constitutionally unacceptable risk of pain during an execution

because midazolam does not render a person insensate to pain. Id. at 2731. The

district court had determined that the prisoners were not entitled to a stay of

execution based on that claim, because they could not establish a likelihood of

success under the Eighth Amendment. Id. The Supreme Court affirmed that ruling

and clarified in its decision that, in order to prevail on an Eighth Amendment

method-of-execution claim, a prisoner must plead and prove that: (1) the

challenged execution method is “sure or very likely to cause serious illness and

needless suffering” and (2) there is “an alternative [method of execution] that is

feasible, readily implemented, and in fact significantly reduces a substantial risk of

severe pain.” Id. at 2737 (quotations and emphasis omitted) (applying Baze v.

Rees, 553 U.S. 35 (2008)).

      After Glossip, the district court lifted its stay of the method-of-execution

cases pending in its court and consolidated those cases to form the Midazolam

Litigation. The court directed the lead plaintiff to file an amended complaint to

address Glossip and permitted the parties to conduct additional discovery. In

February 2016, the State filed a motion for summary judgment on the Eighth


                                          6
              Case: 16-17167    Date Filed: 12/07/2016    Page: 7 of 24


Amendment claims asserted by the prisoners who at the time of the State’s filing

were part of the Midazolam Litigation. The district court granted summary

judgment to the State on October 31, 2016, but Smith’s claims, which were not

filed until several months after the State moved for summary judgment—and

indeed approximately a year after the Supreme Court decided Glossip and nearly

two years after Alabama announced its current lethal injection drug protocol—

were not addressed in the summary judgment order.

      As noted, Smith filed his § 1983 complaint in April 2016. Smith asserted

three claims in his complaint: (1) an Eighth Amendment claim alleging that

Alabama’s lethal injection protocol constituted cruel and unusual punishment

because midazolam would not sufficiently anesthetize him from the painful effects

of the other two drugs in the protocol; (2) an Eighth Amendment claim alleging

that Alabama’s consciousness assessment, performed after administration of the

midazolam, was inadequate to ensure he would be properly anesthetized prior to

the injection of the second and third drugs, and (3) a First, Eighth, and Fourteenth

Amendment claim alleging that Alabama’s refusal to allow counsel witnessing his

execution access to a cell or landline phone unconstitutionally restricted his access

to the courts. Smith’s Eighth Amendment midazolam claim was materially

indistinguishable from the claims addressed in the district court’s October 31, 2016

summary judgment order, and even alleged the same “feasible, readily available”


                                          7
               Case: 16-17167        Date Filed: 12/07/2016      Page: 8 of 24


alternatives to Alabama’s protocol: (1) a single dose of sodium thiopental; (2) a

single dose of pentobarbital; and (3) a single dose of 500 milligrams of

midazolam. 3

       On May 31, 2016, the State moved to dismiss Smith’s § 1983 claims as

untimely under Federal Rule of Civil Procedure 12(b)(6). In support of its motion,

the State argued that Smith’s Eighth Amendment midazolam claim was a general

challenge to three-drug protocols, which could have been raised at any time after

Alabama began using a three-drug protocol in its executions in 2002 and was thus

barred by the applicable two-year statute of limitations. According to the State,

Smith’s consciousness assessment and access to the courts claims likewise

challenged long-standing policies and were filed outside of the limitations period.

       On September 14, 2016, the Alabama Supreme Court set Smith’s execution

date for December 8, 2016. Nevertheless, Smith did not file a motion to stay his

execution in the district court. In light of the impending execution, the district

court ordered Smith on November 9, 2016 to show cause why the State should not

execute him using the alternative method pled in his complaint of a single 500-mg

dose of midazolam. Smith refused to consent to that method of execution unless

the court first found Alabama’s current protocol unconstitutional and permanently


3
  Smith claimed in briefing to the district court on November 16, 2016 that 500 milligrams is a
typographical error and that he meant 2500 milligrams, but he did not move to amend his
complaint.

                                                8
              Case: 16-17167      Date Filed: 12/07/2016     Page: 9 of 24


enjoined it, and until he and the court had also approved an alternate protocol for

execution with a single dose of midazolam that ensured “all necessary equipment

and sufficient training” and accounted for “the fact that a percentage of the

population reacts paradoxically to midazolam by becoming agitated rather than

sedated.”

      On November 18, 2016, the district court granted the State’s motion to

dismiss Smith’s claims as untimely. Smith appealed the dismissal to this Court,

and, at Smith’s request, the Court ordered an expedited briefing schedule. In

conjunction with his appeal, Smith filed a motion to stay his December 8, 2016

execution. Because the merits of Smith’s appeal and the question whether he is

entitled to a stay of execution are intertwined, we consider those issues together.

                            STANDARDS OF REVIEW

      We review the district court’s dismissal of Smith’s complaint under Federal

Rule 12(b)(6) de novo and apply the same standard as the district court. Fla. Int’l

Univ. Bd. of Tr. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016). In

assessing the merits of a claim under Rule 12(b)(6) claim, we assume the factual

allegations set forth in the complaint are true and construe them in the light most

favorable to the plaintiff. Id. “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations


                                            9
             Case: 16-17167     Date Filed: 12/07/2016     Page: 10 of 24


omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Dismissal under Rule 12(b)(6) is appropriate on statute of limitations grounds if it

is apparent from the face of the complaint that the claims asserted are time-barred.

See Carmichael v. Nissan Motor Acceptance Corp., 291 F.3d 1278, 1279 (11th Cir.

2002).

      In order to obtain a stay of his scheduled execution, Smith must show that

“(1) he has a substantial likelihood of success on the merits [of his Eighth

Amendment claim]; (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 would not be adverse to the public interest.” DeYoung v. Owens,

646 F.3d 1319, 1324 (11th Cir. 2011). See also Muhammad v. Sec’y, Fla. Dep’t of

Corr., 739 F.3d 683, 689 (11th Cir. 2014) (denying a stay of execution where the

prisoner failed to meet this standard). The burden is on Smith to establish each of

these elements. Mann v. Palmer, 713 F.3d 1306, 1310 (11th Cir. 2013).

                                   DISCUSSION

I.    Smith’s Eighth Amendment Midazolam Claim

      A.     Timeliness

      A § 1983 claim is a tort action that is subject to the statute of limitations that

governs personal injury claims in the state where the § 1983 action is filed.

DeYoung, 646 F.3d at 1324. The applicable limitations period in Alabama is two


                                          10
             Case: 16-17167     Date Filed: 12/07/2016    Page: 11 of 24


years. See Ala. Code § 6-2-38 (establishing a two-year statute of limitations for

personal injury actions). An Eighth Amendment method-of-execution claim

accrues on the later of “the date on which [the prisoner’s] state review is complete,

or the date on which the [prisoner] becomes subject to a new or substantially

changed execution protocol.” DeYoung, 646 F.3d at 1325. Smith’s state review

was complete in 2000. He subsequently became subject to a “new or substantially

changed execution protocol” when Alabama adopted lethal injection as its

preferred method of execution in July 2002. Absent any other “substantial change”

to Alabama’s protocol, the two-year limitations period on Smith’s method-of-

execution claim expired in July 2004, approximately twelve years before he filed

his complaint in this case.

      Smith argues that the limitations period was reset when Alabama began

using midazolam as the first drug in its protocol in September 2014, and that his

claim, filed within two years of this substitution, is thus timely. We rejected a

similar argument in Brooks v. Comm’r, Ala. Dep’t of Corr., 810 F.3d 812, 822–24

(11th Cir. 2016). In Brooks, an Alabama prisoner whose claim was part of the

Midazolam Litigation appealed the district court’s denial of his motion for a stay of

execution based on the same Eighth Amendment midazolam claim that is asserted

by Smith and other Midazolam Litigation prisoners. See id. at 819. We affirmed

the district court’s denial of a stay, in part because we determined that the


                                          11
             Case: 16-17167     Date Filed: 12/07/2016    Page: 12 of 24


prisoner’s claim was time-barred. Id. at 822. We noted in our decision that a

“substantial change” sufficient to reset the limitations period “is one that

significantly alters the method of execution.” Id. (citing Gissendaner v. Comm’r,

Ga. Dep’t of Corr., 779 F.3d 1275, 1282 (11th Cir. 2015) (quotation marks

omitted). Ultimately, we were “unpersuaded” by the prisoner’s claim that

Alabama’s switch to midazolam as the first drug in its protocol constituted such a

“substantial change” for two reasons: (1) the prisoner failed to show that

midazolam was any less effective than pentobarbital or sodium thiopental “in

numbing him against the alleged risk of pain posed by the administration of the

second and third drugs, which have remained essentially unchanged since 2002”

and (2) the Supreme Court and “numerous other courts” have concluded that

midazolam is an adequate substitute for pentobarbital as the first drug in a three-

drug lethal injection protocol. Id. at 823.

      The rationale of Brooks applies equally to Smith’s Eighth Amendment

midazolam claim, which is virtually identical to the claim asserted by the prisoner

in Brooks. Smith does not point to, nor do we see, any material difference between

the claims. Most significantly, Smith, like the prisoner in Brooks, failed to allege

how the substitution of midazolam is a “substantial change” in Alabama’s method

of execution sufficient to reset the limitations period. See Gissendaner, 779 F.3d

at 1282. As we recognized in Brooks, the Supreme Court and this Court have


                                          12
              Case: 16-17167     Date Filed: 12/07/2016     Page: 13 of 24


indicated that the substitution of midazolam for pentobarbital does not significantly

alter a three-drug lethal injection protocol because, similar to pentobarbital,

midazolam “render[s] a prisoner unconscious and insensate during the remainder

of a three-drug procedure.” Brooks, 810 F.3d at 823 (citing Glossip, 135 S. Ct. at

2734–35).

      In addition, we agree with the district court that Smith’s allegations pose a

general challenge to the use of a three-drug protocol—and the pain caused by the

paralytic and the potassium chloride used as the last two drugs in the protocol—

rather than to the use of midazolam per se. The gist of Smith’s claim is that the

State’s “continued use of a three-drug protocol . . . is unjustified in light of the fact

that there are ready and available alternatives which would significantly reduce the

substantial risk of severe pain.” In support of the claim, Smith cites (1) the fact

that fourteen states have adopted or announced plans to adopt a single-drug

protocol and (2) studies recommending that states discontinue three-drug protocols

and instead use a single large dosage of a barbiturate because execution team

members “typically are not medically trained personnel and administering three

drugs creates greater opportunity for error” that would be ameliorated by a one-

drug method. Alabama’s switch to midazolam has no bearing on these allegations,

which Smith could have asserted any time after Alabama instituted lethal injection

per a three-drug protocol in July 2002.


                                           13
              Case: 16-17167     Date Filed: 12/07/2016     Page: 14 of 24


      Smith nevertheless argues that the district court lacked the authority to

dismiss his claim without first holding an evidentiary hearing. The question

whether a significant change has occurred in a state’s execution method is

generally a fact-dependent inquiry. Arthur v. Thomas, 674 F.3d 1257, 1260 (11th

Cir. 2012). However, Smith’s allegations concerning midazolam are materially

indistinguishable from the allegations that we rejected as untimely in Brooks. As

such, an evidentiary hearing was not required for the district court to rule on the

timeliness issue in this case. See Gissendaner, 779 F.3d at 1282 n.8 (“[A] court

may dismiss a complaint as untimely—without an evidentiary hearing or

discovery—if the allegations and evidence presented are materially the same as

those presented in a previous case in which the denial of relief was affirmed.”).

See also Mann, 713 F.3d at 1314 (clarifying that a district court may dismiss a

method of execution claim on statute of limitations grounds without taking

evidence if a plaintiff fails to plead a plausible basis for finding that a significant

change occurred). Thus, we affirm the district court’s timeliness ruling.

      B.     Likelihood of Success on the Merits For Purposes of Smith’s
             Motion for a Stay

      To receive a stay of execution, Smith must show a likelihood of succeeding

on the merits of his challenge to Alabama’s method of execution. Even if we were

to assume that Smith’s complaint was timely filed, it is still apparent from the face

of the complaint that Smith is not likely to succeed on the merits of his Eighth

                                           14
             Case: 16-17167     Date Filed: 12/07/2016    Page: 15 of 24


Amendment midazolam claim. As discussed above, to prevail on his claim, Smith

must plead and prove that: (1) Alabama’s use of midazolam in its execution

protocol entails a “substantial risk of severe pain” and (2) there is a “known and

available alternative method of execution” that significantly reduces the risk.

Glossip, 135 S. Ct. at 2731. Again, the burden is on Smith to satisfy each of these

prongs. See Brooks, 810 F.3d at 820 (“As the Supreme Court explained, it is [the

prisoner’s] burden ‘to identify an alternative that is feasible, readily implemented,

and in fact significantly reduce[s] a substantial risk of severe pain.’”) (quoting

Glossip, 135 S. Ct. at 2737).

      As to the first prong, this Court and the Supreme Court have rejected the

proposition—fundamental to Smith’s claim—that the 500-milligram dose of

midazolam administered as the first drug in Alabama’s protocol does not

sufficiently anesthetize a prisoner and thus subjects him to an unconstitutionally

substantial risk of severe pain. See Glossip, 135 S. Ct. at 2739–40 (noting that

“numerous courts have concluded that the use of midazolam as the first drug in a

three-drug protocol is likely to render an inmate insensate to pain that might result

from administration of the paralytic agent and potassium chloride”); Brooks, 810

F.3d at 823 (“[T]he very three-drug protocol approved by the Supreme Court in

Glossip is the same one Alabama will use here.”). These decisions make it clear

that it is not just unlikely that Smith will be able to make the showing required by


                                          15
               Case: 16-17167       Date Filed: 12/07/2016      Page: 16 of 24


the first prong of Glossip, but in fact it is virtually certain that he will be unable to

do so.

         Likewise, it is apparent from the face of the complaint4 that Smith most

likely will not be able to show that there is a “feasible,” “readily available”

alternative method of execution that would substantially reduce the risk of an

unconstitutional level of pain as required by the second prong of Glossip. See

Brooks, 810 F.3d at 818–22. The alternatives proposed by Smith include: (1) a

single dose of pentobarbital; (2) a single dose of sodium thiopental; and (3) a

single dose of 500 milligrams of midazolam. As this Court has noted many times,

and the Supreme Court reiterated in Glossip, both pentobarbital and sodium

thiopental are unavailable for use in executions as a result of the advocacy of death

penalty opponents. See id.; Glossip, 135 S. Ct. at 2738. If that were not the case,

this litigation would not be before us today.

         As to the single-dose midazolam alternative, Smith does not distinguish his

proposal from the single-dose midazolam alternative that we concluded in Brooks

was legally insufficient to meet the second prong of Glossip. See Brooks, 810 F.3d

at 822 (finding “no likelihood . . . that a heretofore untested lethal injection

protocol involving only midazolam is materially safer” than Alabama’s current
4
  Smith makes a facial challenge to Alabama’s method of execution; notably, he makes no “as
applied” challenge, as did the prisoner in Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268
(11th Cir. Nov. 2, 2016). Specifically, unlike Arthur, Smith does not allege any health issues
unique to him. Instead like Glossip and Brooks, he merely challenges the use of a three-drug
protocol for any person being executed.

                                               16
               Case: 16-17167       Date Filed: 12/07/2016       Page: 17 of 24


protocol). Like the prisoner in Brooks, Smith does not allege that a midazolam-

only protocol has ever been used in an execution and his allegations about the

“paradoxical effect” of midazolam undercut his claim that single-dose midazolam

is a “known, readily implementable, and materially safer lethal injection

alternative.” Id. at 821–22. Moreover, Smith’s expert Dr. Randall Tackett 5

acknowledges in a report attached to Smith’s complaint that there is a “paucity of

information regarding lethal concentrations of midazolam.” Dr. Tackett’s

statement affirmatively shows that single-dose midazolam is not a “known”

alternative that “in fact significantly reduces a substantial risk of severe pain” as

required by Glossip. 135 S. Ct. at 2737.

       The district court relied on all of the above reasons in granting summary

judgment to the State as to the lead plaintiff and several other prisoners who joined

the Midazolam Litigation prior to Smith and who asserted materially

indistinguishable Eighth Amendment midazolam claims. After considering the

evidence presented by the prisoners concerning the proposed alternatives, the court

concluded that (1) neither pentobarbital nor sodium thiopental is available to

Alabama for use in executions and (2) single-dose midazolam is not “a known and

available alternative method of execution that would entail a significantly less

severe risk” than Alabama’s current protocol as required by Glossip. The court

5
 Dr. Tackett, a pharmacologist and toxicologist, is a professor at the University of Georgia
College of Pharmacy.

                                               17
             Case: 16-17167     Date Filed: 12/07/2016   Page: 18 of 24


noted that the uncertainty regarding the efficacy of midazolam as a single-dose

lethal injection drug in Dr. Tackett’s expert report had not been cleared up by Dr.

Tackett’s deposition, in which he could merely “guess” that if midazolam were

used as the sole agent for lethal injection, he would use the dose indicated in the

one published peer-reviewed article on the subject that extrapolates a proposed

dose of between 2500 and 3750 based on animal studies. The court noted that Dr.

Tackett’s report and opinion failed to support, and in fact undermined, the

prisoners’ claim that a one-drug protocol using midazolam would result in

significantly less risk of substantial pain than Alabama’s current protocol.

      In his brief motion for a stay of execution, Smith does not address either of

the above issues nor does he explain how his Eighth Amendment midazolam claim

can be distinguished from similar claims that have been rejected by the Supreme

Court, this Court, and many other courts. Accordingly, Smith has not met his

burden to show that a stay of execution is warranted in this case.

II.   Smith’s Eighth Amendment Consciousness Assessment Claim

      Smith’s Eighth Amendment consciousness assessment claim also is time-

barred. In support of this claim, Smith alleges that the assessment to ensure that a

prisoner is unconscious after the administration of the first drug in the protocol—

and prior to administration of the second and third drugs—is performed by a

correctional officer who lacks the training of an anesthesiologist and does not use


                                          18
               Case: 16-17167        Date Filed: 12/07/2016       Page: 19 of 24


the medical devices ordinarily used to monitor the consciousness of a person

undergoing anesthesia for a medical procedure. According to Smith, these

deficiencies result in an inadequate procedure for assessing anesthetic depth and

raise a risk of pain during an execution severe enough to violate the Eighth

Amendment.

       Smith does not dispute that Alabama implemented the consciousness

assessment procedure in 2007. See Arthur, 674 F.3d at 1264 n.1 (Hull, J.,

dissenting) (“In 2007, Alabama’s protocol was modified to add an additional

procedural safeguard, namely, a consciousness assessment after the administration

of the first drug.”). He does not allege that the method of assessing consciousness,

or the training and qualifications of the correctional staff who perform the

assessment, have changed in any way since the procedure was implemented. Thus,

all of Smith’s allegations concerning Alabama’s consciousness assessment

procedure could have been raised in 2007 and were time-barred as of 2009.6

       Contrary to Smith’s argument, his consciousness assessment claim was not

revived by evidence attached to his complaint showing that Christopher Brooks—

the prisoner whose claim we denied in Brooks and who was executed using

Alabama’s current protocol on January 21, 2016—opened his left eye during the

6
  The lead plaintiff in the Midazolam Litigation asserted a similar constitutional challenge to
Alabama’s consciousness assessment procedure in April 2012. At the very latest, then, the
statute of limitations expired on Smith’s consciousness assessment claim in April 2014, two
years prior to when Smith asserted the claim.

                                                19
             Case: 16-17167     Date Filed: 12/07/2016    Page: 20 of 24


execution. Brooks’s execution did not involve any change, much less a significant

change, to Alabama’s consciousness assessment procedure that Smith challenges

in his § 1983 claim. And the fact that Brooks opened one eye during his execution,

without more, falls far short of a showing of either a substantial risk of serious pain

or a significant change in Alabama’s method of execution. See Glossip, 135 S. Ct.

at 2732–33 (recognizing that “some risk of pain is inherent in any method of

execution” and that “the Constitution does not require the avoidance of all risk of

pain”).

III.   Smith’s Right of Access Claim

       Smith’s final claim is that Alabama’s refusal to allow attorneys witnessing

an execution to have access to a cell phone or a landline denies him access to the

courts in violation of the First, Eighth, and Fourteenth Amendments. As with his

other claims, Smith fails to allege that any significant change in Alabama’s policy

as to cell phone or landline access has occurred within the last two years. The

State cites a copy of the policy prohibiting cell phones and other electronic

equipment for visitors that was posted online in August 2012. Even assuming the

policy did not go into effect until that date, Smith’s April 2016 claim concerning

the policy would be time-barred. Smith again attempts to rely on the fact that

Christopher Brooks opened one eye during his execution in January 2016, but that




                                          20
              Case: 16-17167      Date Filed: 12/07/2016   Page: 21 of 24


fact does not establish a significant change in Alabama’s protocol sufficient to

restart the limitations period.

      Smith’s right of access claim is also unlikely to succeed on the merits.

Smith does not cite, and the Court has not found, any precedent suggesting that

Alabama’s policy prohibiting witnesses from having cell phone or landline access

infringes on the First, Eighth, or Fourteenth Amendments. Smith cites a federal

district court decision holding that an inmate had a right to have his counsel view

his execution with access to a telephone, but that decision was later vacated by the

Sixth Circuit. See Coe v. Bell, 89 F. Supp. 2d 962, 967 (M.D. Tenn. 2000),

vacated by Coe v. Bell, 230 F.3d 1357 (6th Cir. 2000) (vacating district court’s

order granting injunctive relief as moot because the prisoner had been executed).

Moreover, to state a valid right-of-access claim, Smith would have to establish an

actual injury. See Lewis v. Casey, 518 U.S. 343, 351–52 (1996) (explaining that

the actual-injury requirement for a right-of-access-claim stems from “the doctrine

of standing, a constitutional principle that prevents courts of law from undertaking

tasks assigned to the political branches”). Smith’s request for access to a cell

phone or landline is based on the possibility that something might go wrong during

his execution, which does not qualify as an “actual injury.” See id. at 351

(explaining that a prisoner must show that the “alleged shortcomings . . . hindered

his efforts to pursue a legal claim”). In short, there is no authority that would


                                           21
             Case: 16-17167     Date Filed: 12/07/2016   Page: 22 of 24


permit this Court to intrude into a state-administered judicial execution in the

manner proposed by Smith in his right of access claim.

IV.   Additional Timeliness Concerns

      With regard to our denial of Smith’s motion for a stay of his execution

scheduled for December 8, 2016, we note further that our precedent requires us to

“be sensitive to the State’s strong interest in enforcing its criminal judgments

without undue interference from the federal courts.” Jones v. Allen, 485 F.3d 635,

638 (11th Cir. 2007). To that end, there is a strong equitable presumption against

the grant of a stay where a claim could have been brought at such a time as to

allow consideration of the merits without requiring a stay. Id. That presumption

comes into play here, where Smith’s direct appeal concluded in 2000 and he

became subject to lethal injection as a method of execution in 2002, but he did not

challenge Alabama’s method of execution until April 2016.

      Even when Alabama added midazolam to its three-drug protocol in

September 2014, Smith did not move quickly to challenge the protocol. Neither

did Smith immediately act after the following significant events: (1) the issuance

of the Glossip ruling addressing a materially indistinguishable midazolam protocol

in June 2015, (2) the execution of Christopher Brooks per the midazolam protocol

in January 2016, and (3) the State’s motion on February 26, 2016 asking the

Alabama Supreme Court to set an execution date for Smith. By the time Smith


                                          22
             Case: 16-17167      Date Filed: 12/07/2016    Page: 23 of 24


filed his complaint, the Midazolam Litigation had been pending for several years,

the parties to the litigation had completed extensive discovery, and the State had

filed a motion for summary judgment that ultimately was granted as to the

prisoners who were part of the litigation when the motion was filed but that did not

address Smith’s claim because of his delay in filing it. Smith has offered no reason

for the delay, but if he truly had intended to challenge Alabama’s lethal injection

protocol, rather than simply delay his execution, “he would not have deliberately

waited to file suit until a decision on the merits would be impossible without entry

of a stay or an expedited litigation schedule.” Grayson v. Allen, 491 F.3d 1318,

1326 (11th Cir. 2007). See also Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d

1288, 1297–98 (11th Cir. 2016) (“While each death case is very important and

deserves our most careful consideration, the fact that [the prisoner] has petitioned

us for a stay of execution only at the very last moment, and without adequate

explanation, also suggests to us that the equities do not lie in his favor.”).

      Moreover, Smith never filed a stay of execution in the district court and did

not move for a stay of execution in this Court until November 18, 2016. Based on

Smith’s reply brief in support of his appeal, his delay in seeking a stay in the

district court appears to have been a strategic decision to control the procedural

posture of the case when it reached this Court and the standard of review

applicable to the district court’s rulings. Smith’s refusal to seek a stay of execution


                                           23
             Case: 16-17167     Date Filed: 12/07/2016    Page: 24 of 24


earlier in the district court is one more fact suggesting “that the real purpose behind

his claim is to seek a delay of [his] execution, not merely to effect an alteration of

the manner in which it is carried out.” Jones, 485 F.3d at 640. As we emphasized

in Brooks, “federal courts can and should protect States” from such “dilatory . . .

suits.” Brooks, 810 F.3d at 824.

                                   CONCLUSION

      For all of the above reasons, we AFFIRM the district court’s ruling

dismissing Smith’s § 1983 claims as time-barred and we DENY Smith’s motion

filed in this Court for a stay of his execution scheduled for December 8, 2016.




                                          24
