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                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-12257-P
                           ________________________

                       D.C. Docket No. 1:17-cv-00221-WS-B



THOMAS ARTHUR,

                                                               Plaintiff-Appellant,

                                   versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
WARDEN,

                                                           Defendants-Appellees.

                           ________________________

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

                                 (May 25, 2017)

Before HULL, MARCUS, and WILSON, Circuit Judges.

HULL, Circuit Judge:
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       Under sentence of death, Thomas Arthur’s execution is currently scheduled

for May 25, 2017 at 6:00 p.m. CST. This is Arthur’s eighth scheduled execution 1

and seventh 42 U.S.C. § 1983 case. 2

       This seventh § 1983 case was filed on Tuesday, May 16, 2017 (nine days

before his scheduled execution). Late in the evening of Monday, May 22, 2017

(less than 36 hours before his scheduled execution), Arthur filed in this Court a

motion for a stay of execution.

       In this seventh § 1983 case, Arthur once again challenges Alabama’s use of

midazolam in his execution. In his prior § 1983 midazolam challenge, following

discovery and a bench trial, the United States District Court for the Middle District

of Alabama (the “Middle District Court”) and this Court concluded that Arthur’s

midazolam claims lacked merit. Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d

1268 (11th Cir. 2016), cert. denied Arthur v. Dunn, 137 S. Ct. 725 (Feb. 21, 2017),

pet. for rehearing denied Arthur v. Dunn, __ S. Ct. __, No. 16-602, 2017 WL

1427632 (Apr. 24, 2017).



       1
        Alabama previously scheduled Arthur’s execution for: (1) April 27, 2001; (2) September
27, 2007; (3) December 6, 2007; (4) July 31, 2008; (5) March 29, 2012; (6) February 19, 2015;
and (7) November 3, 2016. See Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1275 n.2
(11th Cir. 2016).

       2
          Arthur’s six prior cases include Arthur’s three prior, separate § 1983 cases challenging
the first drug in his execution. The other three separate cases are § 1983 complaints: (1) raising a
First Amendment access-to-courts claim; (2) seeking access to physical evidence for DNA
testing; and (3) requesting an injunction barring a post-mortem autopsy of his body.
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      In this seventh § 1983 case (Arthur’s second case challenging Alabama’s use

of midazolam), Arthur filed this time in the United States District Court for the

Southern District of Alabama (the “Southern District Court”). On May 18, 2017,

the Southern District Court denied Arthur’s motion for a temporary restraining

order and/or preliminary injunction and dismissed Arthur’s § 1983 complaint with

prejudice “on the separate and independent grounds of res judicata and the special

equitable principles governing eleventh-hour method-of-execution challenges

brought by death row inmates.”

      Arthur appealed to this Court. This Court granted Arthur’s motion for

expedited briefing, to be completed by 5:00 p.m. EST on Wednesday, May 24.

After review, we affirm the district court’s dismissal and deny Arthur’s motion for

a stay of execution.

                          I. STANDARD OF REVIEW

      This Court reviews the district court’s res judicata determinations de novo.

Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1375 (11th Cir. 2011). Arthur’s

§ 1983 complaint sought only equitable injunctive relief. We review the district

court’s dismissal of that complaint on unreasonable-delay grounds only for abuse

of discretion. Grayson v. Allen, 491 F.3d 1318, 1321 n.2 (11th Cir. 2007).

      “Injunctive relief is an equitable remedy that is not available as a matter of

right.” Id. at 1322. Both the United States Supreme Court and this Court have


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held that an inmate’s lawsuit may be dismissed on equitable grounds where the

inmate waited too late to file his lawsuit. Hill v. McDonough, 547 U.S. 573, 584,

126 S. Ct. 2096, 2104 (2006); see also Hallford v. Allen, 576 F.3d 1221, 1222

(11th Cir. 2009) (per curiam) (dismissing a § 1983 action for unreasonable delay).

      Additionally, “the equitable principles at issue when inmates facing

imminent execution delay in raising their § 1983 . . . challenges are equally

applicable to requests for both stays and injunctive relief” in complaints. Grayson,

491 F.3d at 1322 (concluding that, where a death-row inmate unreasonably delayed

in filing his § 1983 suit, affirmance of the district court’s dismissal was warranted).

Where a petitioner’s scheduled execution is imminent, there is no practical

difference between denying a stay on equitable grounds and denying injunctive

relief on equitable grounds in a § 1983 lawsuit.

      As to Arthur’s motion for a stay, a stay of execution is appropriate only if

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

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

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

be adverse to the public interest. Brooks v. Warden, 810 F.3d 812, 818 (11th Cir.

2016); Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1280 (11th Cir.

2015) (quoting Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1263 (11th

Cir. 2014)).


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      Courts considering a request for a stay must recognize the “‘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 entry of a

stay.’” Hill, 547 U.S. at 584, 126 S. Ct. at 2104 (quoting Nelson v. Campbell, 541

U.S. 637, 650, 124 S. Ct. 2117, 2126 (2004) (requiring district courts to consider

whether an inmate unnecessarily delayed in bringing the claim before granting a

stay “[g]iven the State’s significant interest in enforcing its criminal judgments”)).

                    II. ARTHUR’S LITIGATION HISTORY

      To place this seventh § 1983 case in context, we briefly review just some of

Arthur’s 25-year litigation history from 1992 to 2017. See Arthur v. Thomas, 739

F.3d 611, 614-25 (11th Cir. 2014).

      After his third trial in 1991, Arthur was convicted of the murder of Troy

Wicker and sentenced to death in 1992. Id. Arthur was on work release during a

life sentence for a prior murder conviction when he killed Troy Wicker by shooting

him in the right eye. Ex parte Arthur, 711 So. 2d 1097, 1098 (Ala. 1997). After

direct review and multiple state collateral review cases, the state courts denied

Arthur relief. Arthur, 739 F.3d at 620-21. In 2002, the United States Supreme

Court denied Arthur’s petition for a writ of certiorari as to his murder conviction

and death sentence. Id. at 621.




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      In 2001, Arthur filed a federal 28 U.S.C. § 2254 petition in the district court,

and Arthur did not prevail. Id. at 621-23. In 2006, this Court affirmed. Id. at 623-

24. For a second time, the United States Supreme Court denied Arthur’s petition

for a writ of certiorari. Id. at 624-25.

A.    2007-2016: Arthur’s Three Prior § 1983 Method-of-Execution Cases

      In May 2007, Arthur filed his first § 1983 challenge to the method of his

execution, which at that time included sodium thiopental as the first drug in a

three-drug series. (CM/ECF for the U.S. Dist. Ct. for the S.D. Ala., case no. 1:07-

cv-342, docs. 1, 15). Arthur did not prevail. Arthur v. Allen, No. 07-0342, 2007

WL 2320069 (S.D. Ala. Aug. 10, 2007), aff’d 248 F. App’x 128 (11th Cir. Sept.

17, 2007) (unpublished). The United States Supreme Court denied Arthur’s

petition for a writ of certiorari. Arthur v. Allen, 553 U.S. 1004, 128 S. Ct. 2048

(2008).

      In October 2007, Arthur filed a second challenge to Alabama’s lethal

injection protocol, and Arthur did not prevail. Arthur v. Ala. Dep’t of Corr., 285 F.

App’x 705 (11th Cir. 2008) (unpublished). This Court affirmed. Id.

      Arthur’s third § 1983 method-of-execution litigation lasted for over five

years. In April 2011, Alabama switched the first drug from sodium thiopental to

pentobarbital. See Arthur, 840 F.3d at 1275. Two months later, Arthur filed a new




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§ 1983 complaint in the Middle District Court against the Alabama Department of

Corrections (“ADOC”) challenging this pentobarbital-based protocol. Id.

        In September 2014, Alabama switched to midazolam. 3 Id. at 1276. Arthur

twice amended his § 1983 complaint to challenge midazolam and Alabama’s

execution protocol involving midazolam. Id. at 1275-78. After holding a bench

trial in January 2016 regarding midazolam, the “pinch test,” medical monitoring,

and many other § 1983 claims about Alabama’s execution procedures, the district

court issued two dispositive orders. Id. at 1278, 1283, 1296. In its first order, the

district court determined that ADOC was entitled to judgment on Arthur’s facial

challenge to midazolam and on his Equal Protection claims. Id. at 1283-86. In its

second order, the district court denied relief on Arthur’s many as-applied

challenges to ADOC’s use of midazolam as applied to Arthur personally. Id. at

1296-98. As a result, in July 2016, the district court entered final judgment on

Arthur’s § 1983 challenges to midazolam under the Eighth Amendment. Id. at

1298.

B.      Arthur’s Appeal in His Third § 1983 Method-of-Execution Case

        On November 2, 2016, this Court affirmed the district court’s final judgment

in Arthur’s fifth § 1983 case, rejecting his challenge to Alabama’s use of
        3
        Alabama has used a three-drug lethal injection protocol since it began performing
executions by lethal injection in 2002. See Arthur, 840 F.3d at 1274. The third drug has always
been potassium chloride, and the second drug has always been a paralytic agent—either
pancuronium bromide or rocuronium bromide. Id. From April 2011 until September 10, 2014, it
used pentobarbital as the first drug, and in September 2014, it switched to midazolam. Id.
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midazolam. Id. at 1303-04, 1315-17. After exhaustively reviewing the evidence

submitted by both Arthur and ADOC in that § 1983 case, this Court determined

that the district court had not erred in finding that Arthur had not met his burden of

showing that ADOC’s midazolam-based lethal injection protocol facially violated

the Eighth Amendment. Id. at 1303-04. This Court also rejected Arthur’s as-

applied Eighth Amendment challenge to midazolam for several, alternative

reasons, as outlined in our 140-page decision. Id. at 1305-12. Arthur had not met

his burden of demonstrating that Alabama’s use of midazolam, as applied to him,

was “sure or very likely to cause serious illness and needless suffering, and give

rise to sufficiently imminent dangers”—the showing demanded by the United

States Supreme Court. Id. at 1312 (quoting Glossip v. Gross, 576 U.S. __, __, 135

S. Ct. 2726, 2737 (2015)).

      On February 21, 2017, the United States Supreme Court denied Arthur’s

petition for a writ of certiorari in that five-year § 1983 litigation. Arthur, 137 S.

Ct. at 725. On April 24, 2017, the United States Supreme Court denied Arthur’s

petition for rehearing. Arthur, 2017 WL 1427632, at *1.

                    III. ARTHUR’S CURRENT § 1983 SUIT

      This brings us to Arthur’s new and seventh § 1983 case, filed on May 16,

2017 (nine days before his scheduled execution). Arthur did not return to the

Middle District Court where Arthur had not prevailed in his prior § 1983 Eighth


                                           8
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Amendment challenge to Alabama’s use of midazolam. This time, Arthur filed a

§ 1983 complaint challenging Alabama’s use of midazolam in the Southern

District Court.

      The Southern District Court denied Arthur’s motion for an injunction and

dismissed Arthur’s seventh § 1983 complaint for two independent reasons: (1) res

judicata and (2) equitable principles, including unreasonable delay.

      First, as an essential element of its res judicata analysis, the Southern

District Court determined that the parties are the same and that Arthur was

pursuing the same cause of action in both the instant midazolam case in the

Southern District Court and in his prior midazolam case in the Middle District

Court. Arthur’s complaint pointed to four supposedly “botched” recent executions:

Ronald Bert Smith in Alabama, Jack Jones and Kenneth Williams in Arkansas, and

Ricky Gray in Virginia. As a result of these executions, Arthur alleged that

Alabama is now intentionally inflicting pain on him. The Southern District Court

emphasized that only one of those four executions occurred in Alabama, and that

was the execution of Ronald Bert Smith back on December 8, 2016, over five

months before.

      The Southern District Court noted that, in Arthur’s Third Amended

Complaint in the Middle District Court challenging the use of midazolam, Arthur

had already alleged there were other “botched” executions, but Arthur had never


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successfully demonstrated that or that midazolam violated the Eighth Amendment

as applied to him. Because Arthur’s current allegations were similar in “substance

and tenor” to those earlier, rejected allegations, the Southern District Court

determined that Arthur’s instant complaint “simply [offers] more of the same.”

Accordingly, the Southern District Court determined that “the factual predicate of

the two actions is factually indistinguishable, such that Arthur could have raised

his ‘intent’-based Eighth Amendment theory in the prior action.”

       Second, the Southern District Court looked to the specialized equitable

principles at play in eleventh-hour challenges brought by death-row inmates and

determined that, given the circumstances here, Arthur was not entitled to the

equitable relief of an injunction sought in his seventh § 1983 complaint. 4




       4
        The Southern District Court explicitly declined to reach the merits of Arthur’s Eighth
Amendment claim, although it opined that, were it to do so, it would conclude that Arthur’s
claims were meritless.
        It noted that Arthur’s proffered theory “appears to fly in the face of the Glossip/Baze line
of authorities,” which requires death-row inmates challenging the method of their execution to
show a readily available alternative method. The Southern District Court characterized Arthur’s
complaint as an attempt to “sidestep his lack of evidence of a readily available alternative
method of carrying out his execution.” And Arthur’s claim would fail on the merits because he
did not identify any facts or law that might “plausibly allow him to circumvent” the standard for
Eighth Amendment claims, as enunciated by the United States Supreme Court in Glossip and
Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008).
        The Southern District Court also noted that Arthur’s putative Fourteenth Amendment
Equal Protection claim seemed like an “afterthought,” was due to de dismissed on res judicata
and equitable grounds, and, further, “would be properly dismissed on the merits for want of any
plausible factual allegation in the Complaint that the State will treat Arthur disparately from
other similarly situated persons.”
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                                IV. RES JUDICATA

      The doctrine of res judicata has four elements: (1) the prior decision must

have been rendered by a court of competent jurisdiction; (2) there must have been

a final judgment on the merits; (3) both cases must involve the same parties; and

(4) both cases must involve the same “causes of action.” Mann v. Palmer, 713

F.3d 1306, 1311 (11th Cir. 2013) (quoting In re Piper Aircraft Corp., 244 F.3d

1289, 1296 (11th Cir. 2001)). If a claim raised in the new suit “was or could have

been raised in the prior action . . . res judicata applies.” Id. (quoting same).

      Undisputedly, the first three prongs are satisfied because: (1) the prior

decision was by the Middle District Court; (2) there was a final judgment on the

merits; and (3) the parties are the same. As the Southern District Court correctly

determined, only the fourth prong of the analysis is at issue in this case. “In

determining whether the causes of action are the same, a court must compare the

substance of the actions, not their form. It is now said, in general, that if a case

arises out of the same nucleus of operative fact, or is based upon the same factual

predicate, as a former action, that the two cases are really the same ‘claim’ or

‘cause of action’ for purposes of res judicata.” Id. (quoting Piper, 244 F.3d at

1297).

      Arthur’s claims raised in his seventh § 1983 case are barred by res judicata.

To the extent that Arthur challenges ADOC’s use of midazolam generally or as


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applied to him, that claim was extensively litigated for years in both in the Middle

District Court and this Court. Arthur has come forward with no basis, much less

any allegations, to upend that determination. Indeed, in this seventh § 1983 case,

Arthur recycles many of his allegations about the inefficacy of midazolam from his

prior § 1983 complaint in the Middle District Court. For example, in both

complaints, Arthur alleged that: (1) midazolam is a sedative that is primarily used

to treat anxiety and is “not approved for use as a stand-alone anesthetic”;

(2) midazolam is subject to a “ceiling effect”; and (3) Alabama’s protocol creates

an intolerable risk that the inmate will not be sufficiently anesthetized, leading to

him feeling the “excruciating pain” of the later drugs.

      The only arguable addition is that Arthur now points to four recent

executions to raise what Arthur terms an “actual knowledge” or “intentional

infliction” claim. Although Arthur brings this case under the Eighth Amendment,

Arthur argues this case is a wholly “new cause of action” because ADOC now

actually knows that midazolam will cause Arthur agonizing pain and because this

“intentional” infliction of a painful death runs afoul of the Eighth Amendment.

“Intentional infliction” of cruel punishment is the crux of Arthur’s current § 1983

case, but of course it still remains a claim alleging cruel and unusual punishment

under the Eighth Amendment.




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        The fatal flaw in Arthur’s argument is that his “intentional infliction” theory

could have been raised in his prior, five-year-long § 1983 litigation. See

Maldonado, 664 F.3d at 1377 (“A new claim is barred by res judicata if it is based

on a legal theory that was or could have been used in the prior action.”). Indeed, in

his lengthy midazolam case in the Middle District Court, two of Arthur’s amended

complaints expressly raised allegations of “other botched executions” that ADOC

knew or should have known about.

        For example, in his Second Amended Complaint, filed in January 2015 to

challenge ADOC’s use of midazolam, Arthur devoted an entire section of his

complaint to “four recent executions [that] confirm the serious risks posed by the

use of midazolam.” In support, Arthur pointed to: (1) Florida’s October 15, 2013

execution of William Happ, who allegedly “made an unusual number of body

movements”; (2) Ohio’s January 16, 2014 execution of Dennis McGuire, who

struggled “for about 10 minutes”; (3) Oklahoma’s April 29, 2014 execution of

Clayton Lockett, where placing the IV line was problematic; and (4) Arizona’s

July 23, 2014 execution of Joseph Wood.

        Arthur repeated these allegations in his Third Amended Complaint (the final

operative complaint in his prior midazolam litigation), which was filed in October

2015.




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       As the Southern District Court correctly pointed out, Arthur’s allegations

about the four most recent executions (of Smith, Gray, Jones, and Williams in

2016 and 2017) are simply more of the same type of allegations Arthur made in his

prior midazolam challenge in the Middle District Court. The allegedly botched

executions of Happ, McGuire, Lockett, and Wood in 2013 and 2014 could just

have easily laid the foundation for Arthur’s “actual knowledge” theory as the 2016

and 2017 executions of Smith, Gray, Jones, and Williams. And yet Arthur did not

raise this claim or theory in the earlier § 1983 midazolam litigation, which lasted

for years. 5

       Under Arthur’s theory, res judicata could never apply to an inmate’s

method-of-execution challenge so long as the inmate continued to raise new

allegations of recently botched executions. This cannot be so. Because Arthur’s

new claim about midazolam arises from essentially the same nucleus of operative

facts as his prior claim about midazolam, the fourth and final prong of res judicata

is met.

       Despite referencing executions in other states both in his prior midazolam

case and his current midazolam case, Arthur’s argument on appeal is now that it is


       5
         Additionally, in his First Amended Complaint, filed in July 2011 to challenge ADOC’s
use of pentobarbital as the first drug, Arthur noted the executions of Alabama inmate Eddie
Powell and Georgia inmate Roy Willard Blankenship, both of whom Arthur argued had “gasped
for air and jerked their heads after this drug was administered.” Arthur’s First Amended
Complaint pointed to the purported irregularities in these two executions to demonstrate that
“pentobarbital did not adequately anesthetize” the inmates.
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only the Smith execution in Alabama on December 8, 2016 that gives rise to his

current claim because it was only this execution that gave ADOC firsthand

knowledge that midazolam is insufficient to adequately anesthetize the inmate.

       This argument ignores that on November 2, 2016, Arthur filed another

§ 1983 case (the telephone case) and alleged (1) that Alabama executed inmate

Christopher Brooks in January 2016 using midazolam, (2) that Brooks opened his

left eye after the midazolam was injected, and (3) that Brooks was insufficiently

anesthetized by midazolam. 6 But when we credit Arthur’s argument that it is only

ADOC’s firsthand actual knowledge that could give rise to his “intentional

infliction” theory, he could have brought this claim shortly after Brooks’s January

2016 execution, and even while his prior § 1983 claim was still pending before the

Middle District Court. He did not do so, and thus res judicata still applies. See



       6
         Additionally, media reports about Brooks’s execution directly contradict Arthur’s
allegations. See Kent Faulk, Alabama Death Row inmate Christopher Brooks’ last minutes,
Al.com (Jan. 23, 2016). According to those reports, Brooks’s execution lasted about 27 minutes.
Id. At approximately 6:11 p.m., the administration of 500 milligrams of midazolam began. Id.
“At 6:14 p.m. the chaplain stood up and backed away. Brooks was still and his mouth slightly
open, but his chest continued to move up and down.” Id. “At 6:17 p.m. the corrections officer . .
. approached to perform a consciousness test. The officer called out Brooks’ name twice, pulled
Brooks’ left eyelid back, and pinched the backside of Brooks’ left arm, all to make sure he was
sedated.” Id. “By 6:20 Brooks’ breathing had become undetectable . . . . He never appeared to
struggle or move.” Id. “Prison officials said doctors declared Brooks dead at 6:38 p.m.” Id.
        In contrast, Arthur has offered (in the telephone case) only a conclusory allegation that
one of Brooks’s eyes was open and that this indicated Brooks was not adequately anesthetized.
This factual dispute does not matter for the purposes of our decision here because it is apparent
from Arthur’s allegations (in the telephone case) that he believed Brooks’s movements showed
the inefficacy of midazolam during that execution, which (under Arthur’s theory) should have
given ADOC actual knowledge of the potential problems with its midazolam protocol.
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Mann, 713 F.3d at 1311 (explaining that res judicata bars a claim raised in a new

suit that “could have been raised in the prior action”).

 V. ARTHUR UNREASONABLY DELAYED IN BRINGING HIS CLAIM

        Even if res judicata does not apply, Arthur’s § 1983 complaint seeks only

injunctive relief. Alternatively, and as an independent ground, we conclude that

the district court did not abuse its discretion or commit error in concluding that

Arthur unreasonably delayed in bringing both his Eighth and Fourteenth

Amendment claims only nine days before his execution but sixteen months after

Brooks’s execution in Alabama and five months after Smith’s execution in

Alabama.

        In a § 1983 suit by a death-row inmate in Hill v. McDonough, the United

States Supreme Court acknowledged that “a number of federal courts have invoked

their equitable powers to dismiss suits they saw as speculative or filed too late in

the day.” 547 U.S. at 584, 126 S. Ct. at 2104 (collecting cases). Although it did

not address the correctness of those determinations, the United States Supreme

Court nevertheless recognized the “significant” problems created when death-row

inmates delay in filing their § 1983 suits, stating that “federal courts can and

should protect States from dilatory or speculative suits.” Id. at 585, 126 S. Ct. at

2104.




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      Additionally, “the equitable principles at issue when inmates facing

imminent execution delay in raising their § 1983 . . . challenges are equally

applicable to requests for both stays and injunctive relief.” Grayson, 491 F.3d at

1322. Under these principles, this Court has previously concluded that, where a

death-row inmate unreasonably delayed in filing his § 1983 suit, affirmance of the

district court’s dismissal was warranted. Id. at 1325; see also Arthur v. King, 500

F.3d 1335, 1341 (11th Cir. 2007).

      Under all the facts and circumstances here, Arthur has not shown that he has

met the equitable requirements for injunctive relief. Arthur’s direct and post-

conviction appeals concluded almost 15 years ago. His third and most lengthy

§ 1983 method-of-execution case, which challenged Alabama’s lethal injection

protocols, lasted five-and-a-half years, consisted of multiple claims, involved

discovery, and culminated in a two-day bench trial before the federal district court

judge in the Middle District Court. See Arthur, 840 F.3d at 1272. The allegedly

“botched” midazolam executions alleged in Arthur’s Second and Third Amended

Complaints took place in 2013 and 2014, while his prior midazolam case was

being litigated and years before he brought the instant § 1983 case. And yet Arthur

waited to raise this “intentional infliction” claim until nine days before his

scheduled May 25, 2017 execution.




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       This lawsuit also came two-and-a-half years after ADOC adopted its

midazolam protocol. What’s more, on November 2, 2016, Arthur alleged in his

sixth § 1983 case (the telephone case) that Brooks made irregular movements

during his January 2016 execution, which, according to Arthur, showed that

Brooks was insufficiently anesthetized. Yet Arthur nevertheless waited sixteen

months after Brooks’s execution to bring the instant § 1983 case.

      Arthur’s delay in asserting his rights undermines his argument because “if he

truly had intended to challenge Alabama’s lethal injection protocol, 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.” Brooks,

810 F.3d at 825 (quoting Grayson, 491 F.3d at 1326). In short, Arthur has

provided no reliable explanation for this delay, leaving us with “little doubt 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 v. Allen, 485

F.3d 635, 640 (11th Cir. 2007). Thus, we conclude that the district court did not

abuse its discretion in dismissing Arthur’s Eighth and Fourteenth Amendment

claims on equitable grounds.




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                              VI.    EQUITABLE RELIEF

       We also deny Arthur’s motion for a stay because a stay of execution is an

equitable remedy, and Arthur has not met his burden to demonstrate entitlement to

that equitable relief.

       A stay is an equitable remedy that is not available as a matter of right, and

before granting a stay, this Court 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.” Nelson, 541 U.S. at 649-50, 124 S.

Ct. at 2126. We consider the relative harms to the parties by balancing the

competing interests of Arthur and Alabama. Crowe v. Donald, 528 F.3d 1290,

1292 (11th Cir. 2008). “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.” McNair, 515 F.3d at 1172. Victims of crime also

“have an important interest in the timely enforcement of a sentence.” Hill, 547 U.S.

at 584, 126 S. Ct. at 2104.

       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. Jones, 485 F.3d at 638. In several decisions, this

Court has refused to grant a dilatory stay sought on the eve of execution. See, e.g.,

Crowe, 528 F.3d at 1294; Diaz v. McDonough, 472 F.3d 849, 851 (11th Cir.


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2006); Hill v. McDonough, 464 F.3d 1256, 1259-60 (11th Cir. 2006). Most

recently, this Court refused to grant a stay of execution to a Georgia inmate who

waited until five days before his execution to file his lawsuit. Ledford v. Comm’r,

Ga. Dep’t of Corr., ___ F.3d __, No. 17-12167, 2017 WL 2104682, at *6-7 (11th

Cir. May 15, 2017). We see no distinguishable difference between Arthur’s case

and our decision in Ledford.

       In any event, as outlined above, Arthur’s claims are barred by res judicata

and equitable principles relating to unreasonable delay. Thus, Arthur has not

shown a substantial likelihood of success on the merits to warrant a stay.

       Finally, in seeking a stay of his May 25, 2017 execution, Arthur’s instant

complaint (filed May 16, 2017) and brief (filed May 19, 2017) cite internet news

accounts and snippets from those and other sources about, inter alia, the four recent

midazolam executions (of Smith, Gray, Jones, and Williams). 7 Arthur cherry picks


       7
         For example, Arthur cites to these various internet news articles to support his
allegations about the facts of these other executions and other states’ execution protocols. See
Alan Blinder, Arkansas Governor Rebuffs Calls for Execution Inquiry, The New York Times
(Apr. 28, 2017), https://www.nytimes.com/2017/04/28/us/arkansas-execution-midazolam-lethal-
injection.html?_r=2 (discussing Williams); Kim Chandler, Alabama inmate coughs, heaves 13
minutes into execution, AP (Dec. 9, 2016),
https://apnews.com/4c0bd6e7c9a34448aa0af8d30e58e1d5/alabama-scheduled-execute-man-
clerks-1994-killing (discussing Smith); Kristen Whitney Daniels, Ricky Gray becomes 112th
person executed in Virginia, National Catholic Reporter (Jan. 24, 2017),
https://www.ncronline.org/blogs/ncr-today/ricky-gray-becomes-112th-person-executed-virginia
(discussing Gray); Manny Fernandez, Arizona Agrees to Stop Using Drug Tied to Botched
Executions, The New York Times (Dec. 20, 2016),
https://www.nytimes.com/2016/12/20/us/arizona-lethal-injection-midazolam.html?_r=0
(discussing Arizona’s decision to stop using midazolam); Kent Faulk, Alabama Death Row
inmate: legislators, not the prison system, should decide execution drugs, AL.com (Mar. 16,
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an alleged detail or two from certain news accounts. In response, the State argues

that the internet news reports, if anything, show midazolam worked as intended

and Arthur has not demonstrated a substantial likelihood of success on his Eighth

Amendment claim, which is required for a stay.

      For example, according to news accounts, Gray’s execution in Virginia

lasted only fourteen minutes after the first drug (midazolam) was injected. Frank

Green and Ali Rockett, Executed: Ricky Gray put to death for murders of Harvey

girls, Richmond Times-Dispatch (Jan. 18, 2017),

http://www.richmond.com/news/local/crime/executed-ricky-gray-put-to-death-for-

murders-of-harvey/article_5de1f312-1142-5cad-88a3-cde1a0e068c7.html. One

minute into the execution, Gray did little more than take a few deep breaths and

make snoring or groaning sounds, and five minutes into the execution, Gray’s body

movements appeared to have stopped. Id.

      According to news accounts, Jones’s execution in Arkansas also lasted only

fourteen minutes. Andrew DeMillo, Contrasting accounts of Arkansas execution

from witnesses, AP (Apr. 25, 2017),

https://www.apnews.com/8293f4e52c9d40529d4a951238c7f886. While some

witnesses saw Jones moving his lips after completing his final words, the state




2017), www.al.com/news/birmingham/index.ssf/2017/03/alabama_death_row_inmate_legis.html
(discussing other state’s protocols as well as Arthur’s latest round of appeals).
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prison spokesman indicated that this was because Jones was still speaking to the

director of the corrections department. Id. The other witnesses disputed whether

Jones gasped or gulped for air about five minutes into the execution, but this was

the only other movement reported during the first five minutes. Id. The execution

took a total of fourteen minutes, and there is so far no report of movement in the

last nine minutes. Id.

      According to news accounts, Williams’s execution in Arkansas similarly

lasted only thirteen minutes. Timeline of latest Arkansas execution from AP

reporter, AP Apr. 28, 2017,

https://www.apnews.com/88dbdd478f504dfb92106478ab1b9e3c. While some

witnesses reported Williams lurching only three minutes into the execution, this

movement was only alleged to have lasted no more than twenty seconds. Id.

Arthur also does not mention that Arkansas executed four men last month,

including Jones and Williams, and all four executions lasted less than twenty

minutes. Arkansas inmate Kenneth Williams lurches, convulses during execution,

Al.com (Apr. 28, 2017),

http://www.al.com/news/index.ssf/2017/04/arkansas_inmate_kenneth_willia.html.

      This is not to say that we rely on news reports. Rather, it is only to point out

why Arthur’s reliance on internet news reports does not help his case.




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      Finally, as to the Smith execution, Arthur does cite something more than

news reports. Arthur filed the declaration of Spencer Hahn, an attorney and a

witness to Smith’s execution, describing irregular movements by Smith. Notably,

Hahn does not state how long those movements lasted or exactly when the first

drug was started or completed. Of course, this is because witnesses do not know

when the administration of the first drug begins or ends and thus do not know

whether the movements occurred before or after the completion of the first

sedative drug.

      As to Smith, the State asserts (both in this case and Arthur’s telephone case)

that the descriptions from the Hahn affidavit are wrong and that, even if the

descriptions are arguably accurate, “the fact that Smith struggled for breath,

heaved, coughed, and clenched his fist, without more, falls far short of showing

that midazolam ‘is sure or very likely to cause serious illness and needless

suffering.’” Gray v. McAuliffe, No. 3:16CV982-HEH, 2017 WL 102970, at *12

(E.D. Va. Jan. 10, 2017) (citing Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015)).

      News reports, however, attempt to estimate the time. According to one

report, Smith’s execution lasted only 34 minutes, during which Smith heaved and

coughed for about 13 minutes [10:34 to 10:47 p.m.] and underwent two

consciousness tests to make sure he couldn’t feel pain. Kent Faulk, Alabama

Death Row inmate Ronald Bert Smith heaved, coughed for 13 minutes during


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execution, Al.com (Dec. 8, 2016),

http://www.al.com/news/birmingham/index.ssf/2016/12/alabama_death_row_inma

te_is_se.html#incart_std. Before the second consciousness test, the heaving and

coughing had apparently stopped. Id. That media report also indicates that

Alabama Prison Commissioner Jeff Dunn stated that he did not “see any reaction

to the consciousness assessment.” Id. The only point is that Hahn’s declaration

says nothing about how long Smith’s movements lasted and which drugs were

administered at what time. Thus, even with the Hahn declaration, Arthur has not

shown a substantial likelihood of success on his Eighth Amendment challenge to

midazolam as applied to him.

                                    VII. CONCLUSION

       For all of the above reasons, this Court affirms the district court’s dismissal

and, in any event, denies Arthur’s motion for a stay of execution. 8

       AFFIRMED AND MOTION FOR A STAY DENIED.




       8
        This Court also determines (for all the reasons given in this decision) that Arthur has not
shown a substantial likelihood of success on the merits of his purported Fourteenth Amendment
Equal Protection Claim and, thus, we deny a stay of execution as to that claim too.
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WILSON, Circuit Judge, concurring:

      I concur in the result only. Although I do not agree with all of the

Majority’s analysis and believe that some of the analysis is unnecessary, the

Majority in my view ultimately reaches the correct result.




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