           Case: 17-12948   Date Filed: 11/19/2018   Page: 1 of 17


                                                                     [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12948
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:16-cv-02582-RWS



RICHARD JORDAN,
RICKY CHASE,

                                                          Plaintiffs-Appellants,

                              versus

COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                                                                      Defendant,

GEORGIA DEPARTMENT OF CORRECTIONS,

                                                               Movant-Appellee.

                       ________________________

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

                            (November 19, 2018)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.
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JULIE CARNES, Circuit Judge:

      Plaintiffs Richard Jordan and Ricky Chase, Mississippi death row inmates,

served the Georgia Department of Corrections (“GDC”) with a subpoena directing

the GDC to testify at a Rule 30(b)(6) deposition and to produce documents

concerning Georgia’s lethal injection protocol. Plaintiffs argued that the testimony

and documents were necessary to support their 42 U.S.C. § 1983 claims pending in

the Southern District of Mississippi challenging the legality of Mississippi’s lethal

injection protocol. The GDC filed a motion to quash in the Northern District of

Georgia, where compliance with the subpoena was required. Accepting the

recommendation of a Magistrate Judge, the district court granted the motion to

quash. Plaintiffs appeal, arguing that the district court did not apply the correct

standard of review to the Magistrate Judge’s ruling, and also that the motion to

quash should have been denied on the merits. After careful review, we affirm.

                                  BACKGROUND

      This appeal is an offshoot of a § 1983 action filed by Plaintiffs in the

Southern District of Mississippi. Plaintiffs are Mississippi death row inmates who

have filed a § 1983 complaint in the Southern District of Mississippi in which they

challenge the constitutionality of Mississippi’s lethal injection protocol.

Mississippi’s protocol recently was changed from a single injection procedure


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using only sodium pentothal or pentobarbital to a three-drug procedure that

requires the serial injection of: (1) either compounded pentobarbital or midazolam

(a sedative/anesthetic), (2) vecuronium bromide (a paralytic), and (3) potassium

chloride (which stops the heart). According to Plaintiffs, there is a substantial risk

that neither compounded pentobarbital nor midazolam—the first drug in the

series—will sufficiently anesthetize the condemned inmate. Consequently,

Plaintiffs claim, an inmate who is injected with either drug could remain conscious

and fully sensate and thus experience suffocation when the second drug in the

series—the paralytic vecuronium bromide, which renders the inmate unable to

breathe—is administered. Compounding this issue, Plaintiffs contend, vecuronium

bromide prevents all muscular movement and thus masks the pain that potassium

chloride—the third and final drug in the series—is known to inflict in the absence

of adequate anesthesia. Plaintiffs argue that Mississippi’s three-drug lethal

injection protocol thus creates an unacceptable risk of severe and unnecessary pain,

in violation of the Eighth Amendment.

      To prevail on their Eighth Amendment claims, Plaintiffs must show that

there is an alternative to Mississippi’s three-drug protocol that is both “known and

available” and that significantly reduces the risk of severe pain to the inmate. See

Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015). In an effort to meet that burden,

Plaintiffs point to alternative lethal injection protocols used by other states,

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including Georgia. The GDC has used a one-drug protocol that requires a single

injection of compounded pentobarbital in its most recent executions. Plaintiffs

argue that a single injection of pentobarbital is thus a known and available

alternative to Mississippi’s three-drug protocol, which (theoretically, at least)

reduces the risk of pain to the condemned inmate.

       The Mississippi defendants 1 dispute this point, and they have asserted at

various times in the underlying § 1983 action that pentobarbital, even in its

compounded form, is unavailable for their use in executions. For example, in their

answer to Plaintiffs’ complaint, the Mississippi defendants denied that a single-

drug procedure using pentobarbital was a feasible alternative to Mississippi’s

three-drug protocol. They subsequently filed a motion to dismiss Plaintiffs’ § 1983

action under Glossip, citing the sworn testimony of Mississippi Department of

Corrections officials stating that they had tried but been unable to find a source of

pentobarbital for use in executions. In a hearing on the motion, the attorney for the

Mississippi defendants emphasized that state corrections officials had not been

able to obtain pentobarbital for use in executions in spite of a diligent search.

       Plaintiffs acknowledge that pentobarbital has become difficult to acquire, at

least in part because death penalty opponents have lobbied drug manufacturers to


1
 The Mississippi defendants include the Commissioner of the Mississippi Department of
Corrections and various other state officials who are involved in implementing executions in
Mississippi and who have been named in Plaintiffs’ § 1983 complaint.
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make it unavailable for use in American executions. But Plaintiffs have argued in

their § 1983 action that it must be possible to obtain pentobarbital by some means,

because states like Georgia continue to use it. Seeking evidence to shore up that

argument, Plaintiffs served the GDC with the non-party subpoena that is at issue in

this appeal. The subpoena directs the GDC to appear at a Rule 30(b)(6) deposition

and to produce documents concerning the feasibility of a one-drug lethal injection

protocol using pentobarbital, including specific details about the GDC’s source and

manner of acquiring pentobarbital.

      The GDC filed a motion to quash the subpoena in the Northern District of

Georgia, arguing that the information sought in the subpoena was irrelevant to the

claims asserted in the underlying § 1983 litigation and, in any event, protected

from disclosure by Georgia’s Lethal Injection Secrecy Act and other privileges.

The motion was referred to a Magistrate Judge, who rejected the GDC’s relevancy

argument but nevertheless granted the motion to quash pursuant to the Lethal

Injection Secrecy Act. The Lethal Injection Secrecy Act precludes the disclosure

of the “identifying information” of any person or entity that participates in a

Georgia execution or that supplies the drugs used by the state in executions. See

O.C.G.A. § 42-5-36(d). The Magistrate Judge concluded that this Court’s

“expansive reading” of the Act barred the disclosure of the information sought in

the subpoena that Plaintiffs had served on the GDC.

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      Plaintiffs filed objections to the Magistrate Judge’s ruling, in which they

argued that the information sought by the subpoena was not privileged, and that the

Magistrate Judge had erroneously failed to require the GDC to produce a privilege

log specifying in detail how the Lethal Injection Secrecy Act applies to each

requested document. After reviewing those objections, the district court accepted

and adopted the Magistrate Judge’s decision to quash the subpoena. First, the

district court determined that the “clearly erroneous” or “contrary to law” standard

applied to its review of the Magistrate Judge’s ruling because the motion to quash

was a non-dispositive pretrial matter. Then, emphasizing that this Court had held

numerous times that the Lethal Injection Secrecy Act precluded disclosure of

similar information to a condemned inmate, the district court concluded that the

Magistrate Judge’s ruling was neither clearly erroneous nor contrary to law.

      Plaintiffs appeal, arguing that (1) the district court applied the wrong

standard of review to the Magistrate Judge’s ruling and (2) the motion to quash

should have been denied on the merits.

                            STANDARD OF REVIEW

      We review the district court’s ruling on the GDC’s motion to quash “only

for an abuse of discretion.” In re Hubbard, 803 F.3d 1298, 1307 (11th Cir. 2015)

(citing Ariel v. Jones, 693 F.2d 1058, 1060 (11th Cir. 1982)). Thus, we will leave

the district court’s ruling on the motion “undisturbed” unless the district court has

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“made a clear error of judgment, or has applied the wrong legal standard.”

Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005);

see also SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325,

1333 (11th Cir. 1996) (noting that an abuse of discretion occurs when the district

court makes “a clear error of judgment” or applies “an incorrect legal standard”

(internal quotation marks omitted)).

                                   DISCUSSION

I.    The district court applied the correct standard of review to the
      Magistrate Judge’s ruling on the motion to quash.

      As discussed, the district court reviewed the Magistrate Judge’s ruling on the

motion to quash under the “clearly erroneous” or “contrary to law” standard.

According to Plaintiffs, the district court should have reviewed the Magistrate

Judge’s ruling de novo, and its failure to do so requires reversal under the Federal

Magistrate’s Act, 28 U.S.C. § 636, and Rule 72 of the Federal Rules of Civil

Procedure.

      The standard of review the district court was required to apply depends on

whether we characterize the GDC’s motion to quash as a dispositive or a non-

dispositive matter. See Fed. R. Civ. P. 72. Under the Federal Magistrate’s Act, a

district court “may designate a magistrate judge to hear and determine any pretrial

matter pending before the court.” 28 U.S.C. § 636(b)(1)(A). If the matter is non-

dispositive, the district court reviews the magistrate judge’s ruling under the
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“clearly erroneous or contrary to law” standard. Id.; see also Fed. R. Civ. P. 72(a)

(“When a pretrial matter not dispositive of a party’s claim or defense is referred to

a magistrate judge to hear and decide . . . . [t]he district judge in the case must

consider timely objections and modify or set aside any part of the order that is

clearly erroneous or is contrary to law.”). But if the matter is dispositive, the

district court must review any objected-to portion of the magistrate judge’s ruling

de novo. 28 U.S.C. § 636(b)(1).

      The Federal Magistrate’s Act lists several examples of motions that qualify

as dispositive matters, including motions for injunctive relief, for judgment on the

pleadings, for summary judgment, to dismiss or quash an indictment, to suppress

evidence in a criminal case, to dismiss or permit maintenance of a class action, to

dismiss for failure to state a claim, and to involuntarily dismiss an action. Id. As

evidenced by the motions included in this list, a routine pretrial discovery motion,

such as the motion to quash at issue in this case, generally would not be considered

a dispositive matter. See In re Comm’r’s Subpoenas, 325 F.3d 1287, 1292 n.2

(11th Cir. 2003) (“The district court correctly observed that the standard of review

by which it reconsidered the magistrate judge’s [order quashing subpoenas] is

‘clearly erroneous or contrary to law.’” (citing 28 U.S.C. § 636(b)(1)(A))),

overruled on other grounds by Intel Corp. v. Advanced Micro Devices, Inc., 542

U.S. 241 (2004); Maynard v. Bd. of Regents of the Div. of Univ. of the Fla. Dep’t

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of Ed., 342 F.3d 1281, 1286 (11th Cir. 2003) (characterizing a magistrate judge’s

discovery rulings as non-dispositive orders, and holding that the plaintiff’s failure

to object to the rulings in the district court waived his right to appeal them).

      Indeed, Plaintiffs do not dispute that if the GDC’s motion to quash had been

filed in the Southern District of Mississippi, where the underlying § 1983 action is

pending, the motion would be considered non-dispositive and a magistrate judge’s

ruling on it would be reviewed under the clearly erroneous or contrary to law

standard. Yet, Plaintiffs argue that the Magistrate Judge’s ruling on the motion to

quash filed in this particular case should be considered dispositive—and thus

reviewed under the de novo standard—because it resolves and finally disposes of

the litigation between Plaintiffs and the GDC that is pending in the Northern

District of Georgia.

      We are not persuaded by this argument. The GDC’s motion to quash

required separate litigation between Plaintiffs and the GDC in the Northern District

of Georgia because the place for compliance with the subpoena, and thus the

proper venue for filing a motion to quash, was in the Northern District of Georgia.

See Fed. R. Civ. P. 45(c), (d)(3). And the Magistrate Judge’s ruling on the motion

resulted in a final disposition of the issues raised in the motion, permitting

Plaintiffs to appeal the ruling to this Court. See Ariel, 693 F.2d at 1059 (noting

that a litigant would have “no other means of effectively obtaining review” of such

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a ruling if it were not considered final for purposes of appeal). But that does not

change the essential nature of the motion to quash from a routine pretrial discovery

motion, which is ancillary to the § 1983 litigation pending in the Southern District

of Mississippi, to a dispositive matter.

       In short, we find no reason to treat the Magistrate Judge’s ruling on the

GDC’s motion to quash any differently than we would treat a similar pretrial

discovery motion that was filed in the Southern District of Mississippi, where the

underlying § 1983 action is pending. As such, we conclude that the district court

correctly applied the “clearly erroneous or contrary to law” standard of review to

the Magistrate Judge’s ruling on the motion to quash. See In re Comm’r’s

Subpoenas, 325 F.3d at 1292 n.2.

II.    The district court did not abuse its discretion by accepting and adopting
       the Magistrate Judge’s ruling and granting the GDC’s motion to quash.

       Having concluded that the district court applied the correct standard of

review, the only question for this Court is whether the district court otherwise

abused its discretion—either by relying on an error of law or committing a clear

error of judgment—in affirming the Magistrate Judge’s ruling granting the GDC’s

motion to quash. See Ameritas Variable Life Ins., 411 F.3d at 1330. Clearly, it did

not.




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      As discussed, the Magistrate Judge concluded that disclosure of the

information sought in the GDC subpoena was precluded by Georgia’s Lethal

Injection Secrecy Act. The Lethal Injection Secrecy Act states that:

      The identifying information of any person or entity who participates in
      or administers the execution of a death sentence and the identifying
      information of any person or entity that manufactures, supplies,
      compounds, or prescribes the drugs, medical supplies, or medical
      equipment utilized in the execution of a death sentence shall be
      confidential and shall not be subject to disclosure . . . under judicial
      process.

O.C.G.A. § 42-5-36(d)(2). The Act defines “identifying information” to include

“any records or information that reveals a name, residential or business address,

residential or business telephone number, day and month of birth, social security

number, or professional qualifications” of a person or entity that “manufactures,

supplies, [or] compounds” lethal injection drugs. Id. § 42-5-36(d)(1). It classifies

such information as “a confidential state secret.” Id. § 42-5-36(d)(2).

      Georgia passed the Lethal Injection Secrecy Act in response to the concerted

effort by death penalty opponents to make lethal injection drugs unavailable for

use in American executions. See Owens v. Hill, 295 Ga. 302, 317 (2014)

(“[W]ithout the confidentiality offered to execution participants by the statute, as

the record and our case law show, there is a significant risk that persons and

entities necessary to the execution would become unwilling to participate.”); see

also Glossip, 135 S. Ct. at 2733–34 (describing the advocacy of death penalty

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opponents that led to the removal of sodium thiopental from the market and a

shortage of pentobarbital for use in American executions). As the Supreme Court

explained in Glossip, use of the barbiturates sodium thiopental and/or pentobarbital

as the first (and frequently only) drug in a lethal injection protocol “enabled

[s]tates to carry out the death penalty in a quick and painless fashion” for several

years. Glossip, 135 S. Ct. at 2733. “But a practical obstacle soon emerged, as

anti-death-penalty advocates pressured pharmaceutical companies to refuse to

supply the drugs used to carry out death sentences.” Id. The advocacy ultimately

had its intended effect: drug manufacturers were persuaded to withdraw sodium

thiopental from the market entirely and to stop selling pentobarbital for use in

executions. Id. Thereafter, it became difficult—if not impossible—for states to

acquire either drug and thus increasingly necessary to substitute midazolam as the

first drug in a three-drug series, as Mississippi has done in the protocol challenged

by Plaintiffs in their underlying § 1983 action. Id. at 2734 (“Unable to acquire

either sodium thiopental or pentobarbital, some States have turned to

midazolam[.]”).

      In spite of the developments described above, Georgia has been able to

secure a source of pentobarbital in its compounded form for use in executions. See

Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1278 (11th Cir. 2015)

(“Gissendaner I”) (noting that Georgia’s most recent lethal injection protocol calls

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for “an initial 2.5 gram does of pentobarbital” followed by “a second 2.5 gram

dose of pentobarbital”). But Georgia’s supply of pentobarbital—even in its

compounded form—would be jeopardized were it not for the confidentiality

provided by the Lethal Injection Secrecy Act. See Owens, 295 Ga. at 317 (citing a

case in which a compounding pharmacy “was demanding the return of the

execution drugs that it had supplied to the State of Texas because it was being

harassed” (internal quotation marks omitted)); see also Gissendaner v. Comm’r,

Ga. Dep’t of Corr., 803 F.3d 565, 569 (11th Cir. 2015) (“Gissendaner II”) (“To

require . . . that Georgia open up about its source of pentobarbital would result in

the drug becoming completely unavailable for use in executions, even though its

use does not violate the Eighth Amendment.”), cert. denied sub nom., Gissendaner

v. Bryson, 136 S. Ct. 26 (2015).

      This Court has had numerous opportunities to consider the legality and the

implications of the Lethal Injection Secrecy Act. See Gissendaner II; Wellons v.

Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260 (11th Cir. 2014), cert. denied sub

nom., Wellons v. Owens, 134 S. Ct. 2838 (2014); Terrell v. Bryson, 807 F.3d 1276

(11th Cir. 2015); Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d 1288 (11th Cir.

2016). In these cases, the Court has upheld the constitutionality of the Lethal

Injection Secrecy Act, recognized that the confidentiality provided by the Act is

necessary to protect Georgia’s source of pentobarbital for use in executions, and

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concluded that a condemned inmate has no right to the disclosure of information

made confidential by the Act, including information that would identify the

supplier or source of the drugs to be used in the inmate’s execution. See Jones,

811 F.3d at 1292–93 (reviewing this Court’s case law applying the Lethal Injection

Secrecy Act).

      By its plain terms, the Lethal Injection Secrecy Act bars disclosure of the

vast majority of information sought in the subpoena Plaintiffs served on the GDC.

For example, the subpoena demands that the GDC produce documents concerning:

(1) the GDC’s attempt to secure or purchase pentobarbital for use in executions,

(2) drug labels and package inserts for any drug purchased by the GDC for use in

lethal injection executions, (3) the process by which the GDC decided to use a

single lethal dose of barbiturate in its lethal injection protocol, including

communications between any GDC officer and any other person, corporation, or

entity related to that process, (4) the GDC’s use of compounded pentobarbital in

executions, including communications between the GDC and any other person or

entity (including pharmaceutical companies, pharmacies, and other corrections

departments) related to the compounding of pentobarbital, (5) any GDC employee

trainings on conducting lethal injections, including the names and qualifications of

the person who taught at the training, and (6) communications between the GDC

and any other corrections department or attorney general’s office related to the

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selection, purchase, or exchange of drugs for use in lethal injections. Responding

to any of these demands would require disclosure of the identity of people and

entities that manufacture or supply drugs used in Georgia executions, and that

otherwise participate in Georgia executions, in violation of the Lethal Injection

Secrecy Act as interpreted by this Court in the numerous cases cited above.

      Plaintiffs argue that their case is distinguishable from this Court’s precedent

applying the Lethal Injection Secrecy Act because none of the Court’s prior cases

involved a condemned inmate’s attempt to secure information via subpoena. In

our view, this distinction is immaterial. The essential principle underlying this

Court’s precedent is that the Lethal Injection Secrecy Act is a legitimate and

constitutional attempt by the state of Georgia to maintain the confidentiality of the

people and entities—including drug manufacturers and suppliers—that participate

in executions in Georgia. See Jones, 811 F.3d at 1292–93 (reaffirming this Court’s

precedent establishing that a condemned inmate has no right to require disclosure

of information protected by the Lethal Injection Secrecy Act). In spite of the

slightly different context in which this case arises, that principle applies with equal

force here.

      Plaintiffs also argue that the GDC subpoena included some information that

was not covered by the Lethal Injection Secrecy Act, and that the district court thus

abused its discretion by ordering the subpoena to be quashed in its entirety.

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According to Plaintiffs, the district court should at the very least have required the

GDC to submit a privilege log. See Fed. R. Civ. P. 45(e)(2)(A)(ii) (requiring a

person withholding subpoenaed information under a claim of privilege to “describe

the nature of withheld documents [or] communications”).

      Again, we are unpersuaded. The purpose of requiring a privilege log is to

“enable the parties to assess [a] claim” of privilege. Id. Here, it is apparent from

the face of the subpoena that the vast majority of the information sought in the

subpoena falls within the plain language of the Lethal Injection Secrecy Act. More

importantly, the information with the most relevance to Plaintiffs’ § 1983 claims—

that is, information identifying Georgia’s source of pentobarbital, which could

show that pentobarbital is a known and available alternative to Mississippi’s three-

drug protocol, as required for Plaintiffs to prevail under Glossip—is directly barred

from disclosure by the Act. The remainder of the information sought is either

readily available to the public (for example, Georgia’s lethal injection protocols

from 2010 to the present) or of limited relevance to Plaintiffs’ burden under

Glossip to point to a known and available alternative to Mississippi’s three-drug

protocol (for example, documents related to the process by which Georgia

determined that it would or would not use midazolam in its executions). Thus, the

district court did not abuse its discretion by quashing the subpoena in its entirety,

and without first requiring the GDC to submit a privilege log.

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                                 CONCLUSION

      For the foregoing reasons, we conclude that the district court did not apply

an incorrect legal standard or commit a clear error of judgment in accepting and

adopting the Magistrate Judge’s ruling and granting the GDC’s motion to quash.

Accordingly, we AFFIRM the district court’s order granting the GDC’s motion to

quash.




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