             Case: 14-12663     Date Filed: 06/17/2014   Page: 1 of 17


                                                                    [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 14-12663-P
                           ________________________

                         D.C. Docket No. 1:14-cv-01827-WBH

MARCUS A. WELLONS

                                                               Plaintiff - Appellant,

                                       versus

COMMISSIONER,
GEORGIA DEPARTMENT OF CORRECTIONS,
et al.,

                                                            Defendants - Appellees.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                  (June 17, 2014)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Petitioner Marcus A. Wellons has appealed today from the district court’s

denial of his 42 U.S.C. § 1983 action seeking a temporary restraining order, a stay

of his execution, a preliminary injunction, and a request for declaratory judgment.
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He is scheduled to be executed by lethal injection today at 7:00 p.m. Upon

thorough consideration of the parties’ arguments and prevailing law, we find that

Wellons has not established a substantial likelihood of success on the merits of his

Eighth Amendment or other constitutional claims.

 I.   BACKGROUND
      Wellons was convicted of the malice murder and rape of fifteen-year-old

India Roberts on June 6, 1993. The Supreme Court denied his petition for writ of

certiorari on direct appeal. Wellons v. Georgia, 519 U.S. 830, 117 S. Ct. 97

(1996). Following denial of state habeas relief, Wellons filed a federal petition for

writ of habeas corpus in the Northern District of Georgia, which was also denied.

This court affirmed the denial of habeas relief, Wellons v. Hall, 554 F.3d 923 (11th

Cir. 2006), but the Supreme Court granted his petition and remanded for further

consideration, Wellons v. Hall, 558 U.S. 220, 130 S. Ct. 727 (2010) (per curiam).

After remanding Wellons’s case to the district court for further proceedings

consistent with the Supreme Court’s opinion, we affirmed the district court’s

denial of Wellons’s habeas petition. Wellons v. Warden, 695 F.3d 1202 (2012).

The Supreme Court denied Wellons’s petition for writ of certiorari. Wellons v.

Humphrey, 134 S. Ct. 177 (2013).

      Defendants have scheduled Wellons for execution on June 17, 2014.

Following denial of his state appeals, Wellons filed a Section 1983 complaint


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seeking a temporary restraining order and stay of execution before the district

court for the Northern District of Georgia. Wellons also sought a declaratory

judgment that Defendants’ refusal to disclose information concerning the

provenance of their lethal injection drugs and the qualification of their execution

team violates his rights pursuant to the First, Fifth, Eighth and Fourteenth

Amendments. Wellons argues that Defendants have refused to disclose how they

plan to execute him, relying upon Georgia’s recent legislation that classifies all

“identifying information” about a “person or entity who participates in or

administers the execution of a death sentence . . . [or] that manufactures, supplies,

compounds, or prescribes the drugs, medical supplies, or medical equipment” used

in an execution as a “confidential state secret” not subject to disclosure. O.C.G.A.

§ 42-5-36(d) (effective July 1, 2013) (the “Lethal Injection Secrecy Act”).

      Wellons asserts that the only information Defendants have divulged

concerning his execution is a copy of the lethal injection procedure that they

adopted on July 17, 2012, which outlines a one-drug injection protocol of

“pentobarbital.” Because Defendants have not had any FDA-approved

pentobarbital in their possession since March of 2013, but have indicated that they

obtained pentobarbital for this execution, Wellons argues that they may use a

substance that purports to be pentobarbital, but that has been manufactured from

unknown ingredients and in unknown circumstances by a compounding pharmacy.


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Further, Wellons explains that the Supreme Court of Georgia has empowered

Defendants to change their protocol at will and with no supervision or meaningful

notice to the prisoner or public. See Hill v. Owens, 738 S.E. 2d 56 (Ga. 2013).

Wellons presents several arguments for why his lack of knowledge about the drug

that will be used at his execution violates his constitutional rights. First, he details

the risks of using a compounded pentobarbital from an undisclosed source, arguing

that it poses a substantial threat of undue pain and suffering. Second, Wellons

argues that Oklahoma’s recent botched execution of Clayton Lockett highlights the

risks of Defendants’ refusal to disclose the qualifications of the personnel who will

administer Wellons’s execution.

      The district court held a hearing on June 16, 2014 on Wellons’s claims

regarding the provenance of the drugs to be used in his execution and the expertise

of the personnel who will carry out the execution. The district court concluded that

Wellons was not entitled to the declaratory or injunctive relief that he sought, and

granted the Defendants’ motion to dismiss Wellons’s Section 1983 claims.

Specifically, the district court found that Wellons’s assertion that there may be a

problem with the pentobarbital or that the person placing the intravenous lines into

him may not be qualified to perform the task was mere speculation and “cannot

substitute for evidence that the use of the drug is sure or very likely to cause

serious illness and needless suffering.” Brewer v. Landrigan, __ U.S. __ , 131 S.


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Ct. 445 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50, 128 S. Ct. 1520 (2008)); see

Mann v. Palmer, 713 F.3d 1306, 1315 (11th Cir.), cert. denied, 133 S. Ct. 1752

(2013).

 II.   STANDARD OF REVIEW

       A temporary restraining order or a stay of execution is appropriate only if

the movant demonstrates: “(1) a substantial likelihood of success on the merits; (2)

that the preliminary injunction is necessary to prevent irreparable injury; (3) that

the threatened injury outweighs the harm the preliminary injunction would cause

the other litigant; and (4) that the preliminary injunction would not be averse to the

public interest.” Chavez v. Florida SP Warden, 742 F.3d 1267, 1271 (11th Cir.),

cert. denied 134 S. Ct. 1156 (2014).

       We review a district court’s denial of a stay of execution for abuse of

discretion. Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011) (per curiam);

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

III.   DISCUSSION

          A. Statute of Limitations

       As a preliminary matter, we note that the district court did not address

whether Wellons’s § 1983 claims were time barred. Claims brought pursuant to 42

U.S. § 1983 are subject to the statute of limitations period governing personal

injury actions in the state where the action is brought. Crowe v. Donald, 528 F.3d


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1290, 1292 (11th Cir. 2008). In Georgia, the statute of limitations for tort actions

is two years. DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir. 2011). This

court has explained that a petitioner’s “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 changes execution protocol.”

McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). In Arthur v. Thomas, we

held that whether a significant change has occurred in a state’s method of

execution is a fact dependent inquiry. 674 F.3d 1257, 1260 (11th Cir. 2012)

(remanding for a hearing to fully consider whether the change in Alabama’s

execution protocol constituted a “significant change” which would reset

petitioner’s statute of limitations).

       Wellons argues that the Eighth Amendment entitles him to the information

necessary to determine whether Georgia’s method of execution is cruel and

unusual.1 Defendants gave Wellons the 2012 Georgia Department of Correction

Lethal Injection Protocol in May 2014, and Wellons concedes that Defendants

have indicated that they have obtained pentobarbital for his execution. This 2012

protocol sets forth the state’s one-drug lethal injection protocol of using five grams

of pentobarbital administered by trained medical personnel, including a physician
       1
         Wellons insists that he is not making a “method of execution” claim, but rather an
Eighth Amendment challenge premised on his lack of information regarding the method and
manner of his upcoming execution. As we see it, however, Wellons’s challenge boils down to a
method of execution challenge. Cf. Powell v. Thomas, 641 F.3d 1255, 1257-58 (11th Cir. 2011).
For the purposes of this case, the statute of limitations analysis is the same.
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and an IV nurse. However, because Defendants have not had any FDA-approved

pentobarbital in their possession since March of 2013, Wellons believes that they

will inject him with a compounded pentobarbital from an unknown manufacturer.

Wellons appears to be arguing that Defendants will not follow their Legal Injection

Protocol, or alternatively that changing from pentobarbital to a compound

pentobarbital could constitute a “significant change” restarting the statute of

limitations. Arthur, 674 F.3d at 1260. However, the Georgia Department of

Corrections’ anticipated use of an adulterated pentobarbital does not establish a

“significant alteration in the method of execution.” See Mann, 713 F.3d at 1314

(11th Cir. 2014) (“Because Mann cannot establish that the substitution of

pentobarbital constituted a significant alteration to the method of execution in

Florida, all of his claims not barred by res judicata are untimely.”). Nor has

Wellons alleged facts sufficient to show that Georgia’s legal injection procedure

has “substantially changed” based on the lethal injection secrecy act adopted by the

Georgia legislature in March of 2013, which the Georgia Supreme Court has

determined is constitutional. O.C.G.A. § 42-5-36; see Owens v. Hill, No.

S14A0092, 2014 Ga. LEXIS 400 (Ga. May 19, 2014).

      Therefore, Wellons last became subject to a substantially changed execution

protocol in October 2001, when the Georgia Supreme Court declared that

execution by electrocution violated the state constitution and directed any further


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executions to be carried out by lethal injection. Dawson v. State, 554 S.E. 2d 137,

139 (2001); see DeYoung, 646 F.3d at 1324. Thus, it appears to us that the statute

of limitations began to run in 2001 and has expired. Nevertheless, given the

critical nature of Wellons’s challenges and district court’s treatment of Wellons’s

claims, we proceed to the merits of his claims as well.

         B. Wellons’s Eighth Amendment Challenge
      Wellons argues that the Eighth Amendment entitles him to the information

required to determine whether Georgia’s lethal injection procedure is cruel and

unusual. Specifically, the use of pentobarbital from a compounding pharmacy can

add an unacceptable risk of pain, suffering, and harm because compounding

pharmacies are not subject to the FDA regulation. Wellons maintains that the lack

of oversight can lead compounding pharmacies, even those operating in good faith,

to make critical mistakes in the production of drugs. Wellons also argues that he

has not been permitted to learn about the qualifications of the individuals who will

carry out his execution and has presented evidence that if pentobarbital is injected

improperly, it can cause serious chemical burns.

      Wellons argues that the Supreme Court has not hesitated to recognize a due

process right to the information necessary to determine whether an Eighth

Amendment violation exists. See Ford v. Wainwright, 477 U.S. 399, 417–18, 106

S. Ct. 2595 (1986) (holding that Florida’s procedures for determining sanity of a


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death row prisoner were inadequate to afford a full and fair hearing on the issue

and that the petitioner was entitled to an evidentiary hearing on the issue of his

competence to be executed). In short, Wellons insists that Defendants are denying

the information necessary to determine whether his Eighth Amendment rights are

being violated—while claiming not to implicate his rights at all. Defendants insist,

however, that Wellons’s claim is speculative because he is arguing that the

compounded pentobarbital could be imperfect, or that something could go wrong

with the administration of the drug by prison personnel. Defendants argue that just

because an execution may inadvertently result in pain, this does not establish the

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

violation. Baze, 553 U.S. at 51, 128 S. Ct. at 1531 (internal quotation marks

omitted).

      In order to prevail on an Eighth Amendment challenge, Wellons must

demonstrate that the State is being deliberately indifferent to a condition that poses

a substantial risk of serious harm to him. Indeed, where an Eighth Amendment

cruel and unusual punishment claim alleges the risk of future harm, “the conditions

presenting the risk must be ‘sure or very likely to cause serious illness and needless

suffering,’ and give rise to ‘sufficiently imminent dangers.’” Baze, 553 U.S. at 50

(quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)). “In the lethal

injection context, this standard requires an inmate to show an objectively


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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 and citation omitted). A plaintiff must also show

that the risk of severe pain is “substantial when compared to the known and

available alternatives.” Baze, 553 U.S. at 61.

      The district court concluded that Wellons failed to establish a claim that the

state has prevented him from asserting an Eighth Amendment claim, noting that

state government officials are presumed to carry out their duties in a good-faith

manner and in compliance with federal laws, citing Alas. Dep’t of Envtl.

Conservation v. E.P.A., 540 U.S. 461, 507, 124 S. Ct. 983, 1013 (2004). The

district court presumes that Defendants will act in good faith in selecting the

pentobarbital and appointing the team that will carry out Wellons’s execution.

Accordingly, the district court concluded that Wellons’s arguments were mere

speculation which “cannot substitute for evidence that the use of the drug is sure or

very likely to cause serious illness and needless suffering.” Landrigan, 131 S. Ct.

at 445 (internal quotation marks omitted).

      Upon independent review, Wellons has not established that the trial court

abused its discretion in denying the stay of his execution. We have held that

speculation that a drug that has not been approved will lead to severe pain or

suffering “cannot substitute for evidence that the use of the drug is sure or very


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likely to cause serious illness and needless suffering.” Mann, 713 F.3d at 1315.

Here, Wellons’s argument that the compounded pentobarbital may be defective or

the personnel administering the execution may be untrained is insufficient to

establish a substantial likelihood of success on the merits of his Eighth

Amendment claim. See, e.g., Chavez, 742 F.3d at 1272; see also Mann, 713 F.3d

at 1315 (“The Supreme Court has rejected the notion that the absence of approval

by the Administration is sufficient to establish a substantial risk of severe pain.”);

Sells v. Livingston, No. 14-70014, 2014 WL 1316339 (5th Cir. Apr. 2, 2014)

(“Plaintiff argues that because the State has transitioned to a new source for the

compounded pentobarbital, there are unknowns because of the possibility of

improper compounding or contamination. But plaintiff cannot rely on speculation

alone. Plaintiffs must point to facts or evidence based on science and fact showing

the likelihood of severe pain.”), cert. denied, 134 S. Ct. 1787, 188 L. Ed. 2d 612

(2014); In re Lombardi, 741 F.3d 888, 896-97 (8th Cir. Jan. 24, 2014) (“Without a

plausible allegation of a feasible and more humane alternative method of

execution, or a purposeful design by the State to inflict unnecessary pain, the

plaintiffs have not stated an Eighth Amendment claim based on the use of

compounded pentobarbital. . . . As to the other claims raised by the plaintiffs, the

identities of the prescribing physician, pharmacist, and laboratory are plainly not

relevant.”), cert. denied, 134 S. Ct. 1790 (2014) and reh’g denied, 741 F.3d 903


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(8th Cir. 2014). Moreover, Wellons has “failed to show that any . . . alternative

procedure or drug is ‘feasible, readily implemented, and in fact significantly

reduce[s] a substantial risk of severe pain.’” Mann, 713 F.3d at 1315 (alteration in

original) (quoting Baze, 553 U.S. at 52).

         C. Wellons’s First, Fifth, and Fourteenth Amendment Challenges
      Wellons maintains that due process entitles a person whose constitutional

rights will be affected by state actions to, at minimum, both notice of those actions

and an opportunity to be heard in a meaningful manner. See Fuentes v. Shevin,

407 U.S. 67, 80, 92 S. Ct. 1983, 1994 (1972) (“Parties whose rights are to be

affected are entitled to be heard; and in order that they may enjoy that right they

must first be notified.” (internal quotation marks omitted)). Additionally, Wellons

argues that Defendants’ refusal to provide him with information regarding his

execution denies him his First Amendment right of access to governmental

proceedings. Wellons maintains that the Supreme Court has guaranteed a qualified

right of access to governmental proceedings, in order to “ensure that the individual

citizen can effectively participate in and contribute to our republican system of

self-government.” Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457

U.S. 596, 604, 102 S. Ct. 2613, 2619 (1982). When determining whether the

public has a First Amendment right of access to a particular governmental

proceeding, reviewing courts must inquire into two “complementary


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considerations”: (1) “whether the place and process have historically been open to

the press and general public” and (2) “whether public access plays a significant

positive role in the functioning of the particular process in question.” Press-

Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9, 106 S. Ct. 2735, 2740 (1986).

Wellons argues that both criteria are met. First, executions have historically been

open events. Indeed, prior to Georgia’s adoption of the Lethal Injection Secrecy

Act, Wellons insists that Defendants would, in response to Open Records Act

requests, provide prisoners and the public with detailed information about the

drugs used in executions. Second, public access to information certainly plays a

positive role in the functioning of capital punishment. Wellons insists that an

informed public debate is critical in determining “‘whether execution by lethal

injection comports with the evolving standards of decency which mark the

progress of a maturing society.’” Cal. First Amendment Coalition v. Woodford,

299 F.3d 868, 876 (9th Cir. 2002) (citing Trop v. Dulles, 356 U.S. 86, 101, 78 S.

Ct. 590 (1958)).

      The district court concluded, however, that Wellons’s due process claim was

merely a restatement of his Eighth Amendment claims, and was too speculative to

succeed on the merits. With respect to Wellons’s First Amendment claim, the

district court agreed with Defendants that while there may be First Amendment

implications involved in the openness of government operations, the cases Wellons


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relies upon turn on the public’s, rather than the individual’s, need to be informed

so as to foster debate. See Pell v. Procunier, 417 U.S. 817, 831, 94 S. Ct. 2800,

2808 (1974). The district court determined that Wellons did not have a First

Amendment right to access this information from Defendants. 2

       We agree with the judgment of the district court. Neither the Fifth,

Fourteenth, or First Amendments afford Wellons the broad right “to know where,

how, and by whom the lethal injection drugs will be manufactured,” as well as “the

qualifications of the person or persons who will manufacture the drugs, and who

will place the catheters.” See Lewis v. Casey, 518 U.S. 343, 354 (1996)

(“[S]tatements [in Bounds] appear to suggest that the State must enable the

prisoner to discover grievances, and to litigate effectively once in court. . . .These

elaborations upon the right of access to the courts have no antecedent in our pre-

Bounds cases, and we now disclaim them.” (citing Bounds v. Smith, 430 U.S. 817,

825 (1977)); Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013) (“There is no

violation of the Due Process Clause from the uncertainty that Louisiana has

imposed on Sepulvado by withholding the details of its execution protocol.”);

Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011) (holding that the prisoners,

who argued that the Arkansas Method of Execution Act violated the due process

       2
          Although the district court did not explicitly cite Wellons’s burden for achieving the
injunctive relief he seeks, see Chavez, 742 F.3d at 1271, we interpret its conclusion as a finding
that Wellons did not establish a substantial likelihood of success on the merits of his due process
or First Amendment claims.
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clause because its secrecy denied them “an opportunity to litigate” their claim that

the execution protocol violated the Eighth Amendment, failed to state a plausible

due process access-to-the-courts claim). Wellons has not established a substantial

likelihood of success on the merits of his claim that the dearth of information

regarding the nature of the pentobarbital that will be used in his execution and the

expertise of those who will carry it out violates the First Amendment or his right to

due process.     This ground is also a sufficient basis to conclude that the district

court did not abuse its discretion in concluding that Wellons is not entitled to

injunctive relief on these claims.

IV.   CONCLUSION

      We conclude that the district court’s determination, following an evidentiary

hearing, to deny Wellons a stay of execution or a temporary restraining order was

not an abuse of discretion. Wellons’s Motion for a Stay of Execution is DENIED.




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WILSON, Circuit Judge, concurring in judgment:

      With respect to Wellons’s Eighth Amendment claim, I agree that the district

court did not abuse its discretion in concluding that Wellons failed to show the

likelihood of success on the merits required for injunctive relief. However, I write

separately to highlight the disturbing circularity problem created by Georgia’s

secrecy law regarding methods of execution in light of our circuit precedent.

      We explained in Mann v. Palmer that “[a]fter Baze, an inmate who seeks a

stay of execution must establish that the lethal injection protocol of his state creates

a demonstrated risk of severe pain that is substantial when compared to the known

alternatives.” 713 F.3d 1306, 1315 (11th Cir. 2013) (emphasis added). Although

Wellons insists that his is not a “method of execution” claim, in order to succeed

under the Eighth Amendment, he must show that the manner in which Georgia

intends to execute him generates “a substantial risk of serious harm or an

objectively intolerable risk of harm.” Baze v. Rees, 553 U.S. 35, 51, 128 S. Ct.

1520, 1532 (2008) (internal quotation marks omitted). Possibly due to his lack of

information about the compound pentobarbital that will be used and the expertise

of the people who will administer his execution, Wellons has not shown such a

risk. Indeed, how could he when the state has passed a law prohibiting him from

learning about the compound it plans to use to execute him? Although Wellons

has been given the 2012 Lethal Injection Protocol which indicates that


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pentobarbital will be used, he also knows that Defendants have not had any FDA-

approved pentobarbital in their possession since March of 2013, and thus can only

assume they will be using a substance that purports to be pentobarbital but has

been manufactured from unknown ingredients and in unknown circumstances by a

compounding pharmacy. Without additional information about the method of his

execution, it seems nearly impossible for Wellons to make the argument that

Defendants’ planned execution creates an “objectively intolerable risk of harm.”

Id.

      Similarly, while I agree that Wellons has not provided sufficient support for

his general due process or First Amendment claim, I have serious concerns about

the Defendants’ need to keep information relating to the procurement and nature of

lethal injection protocol concealed from him, the public, and this court, especially

given the recent much publicized botched execution in Oklahoma. Unless judges

have information about the specific nature of a method of execution, we cannot

fulfill our constitutional role of determining whether a state’s method of execution

violates the Eighth Amendment’s prohibition against cruel and unusual punishment

before it becomes too late.




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