            Case: 14-10024    Date Filed: 01/07/2014   Page: 1 of 11


                                                                     [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 14-10024
                         ________________________

                   D. C. Docket No. 3:13-cv-01587-TJC-JBT


ASKARI ABDULLAH MUHAMMAD,
f.k.a. THOMAS KNIGHT,

                                                                 Plaintiff - Appellant,

                                    versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
WARDEN, FLORIDA STATE PRISON,
ATTORNEY GENERAL, STATE OF FLORIDA,
DOES 1–50
in their official capacity,

                                                          Defendants - Appellees.

                         ________________________

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

                               (January 7, 2014)

Before MARCUS, WILSON, and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
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      Askari Muhammad murdered a prison guard, Richard James Burke, by stabbing

him more than a dozen times with a knife made from a sharpened serving spoon, and

a Florida trial court convicted Muhammad of first-degree murder and sentenced him

to death. When he murdered Burke, Muhammad was already serving a death sentence

for his separate murders of a Miami couple. State and federal courts have affirmed his

death sentence on direct and collateral review.

      On October 21, 2013, the Governor of Florida signed a death warrant for

Muhammad, who is scheduled to be executed on January 7, 2014, at 6 p.m.

Muhammad then filed in the district court a civil action challenging the method of

execution in Florida as cruel and unusual under the Eighth Amendment, 42 U.S.C.

§ 1983, even though the Supreme Court of Florida, on December 19, 2013, rejected

the identical claim and ruled that the method of execution is not cruel or unusual. See

Muhammad v. State, No. SC13-2105, 2013 WL 6869010 (Fla. Dec. 19, 2013). He also

filed a motion for a stay of execution and an amended motion for a stay of execution,

both of which the district court denied. Muhammad now appeals to our Court and

asks us to reverse the decisions of the district court and to grant a stay of execution.

We AFFIRM the denial of the motions for a stay of execution by the district court,

and we DENY the application for a stay of execution Muhammad filed in our Court.

                                 I. BACKGROUND
      On October 29, 2013, less than two months before this federal litigation began,

Muhammad filed in a circuit court of Florida a motion to vacate the judgment of his

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conviction and sentence, which raised an identical challenge to the use of midazolam

hydrochloride in the three-drug lethal injection protocol that he now raises in federal

court. Muhammad argued in the circuit court that the use of midazolam

hydrochloride, the first drug in the three-drug lethal injection protocol that the State

of Florida approved on September 9, 2013, violates the prohibition of cruel and

unusual punishments in the Eighth Amendment. The motion alleged that midazolam

hydrochloride does not effectively anesthetize the inmate before the second and third

drugs are administered, and, as a result, the inmate is subject to “intolerable risks of

pain and suffering.” On November 18, 2013, the Supreme Court of Florida stayed

Muhammad’s execution and ordered an evidentiary hearing on the effect of

midazolam hydrochloride. On November 21, 2013, an evidentiary hearing was held, in

which Agent Jonathan Feltgan, a Florida Department of Law Enforcement Inspector,

Dr. Mark Heath, an expert for the defense, and Dr. Roswell Lee Evans, an expert for

the State, testified. After the evidentiary hearing, the circuit court denied relief on the

grounds that the dosage of midazolam hydrochloride would render a person insensate

and there was no evidence that the use of the drug in the three-drug protocol would

result in a substantial risk of serious harm.

       The Supreme Court of Florida affirmed the decision of the circuit court that

the use of midazolam hydrochloride did not create a substantial risk of serious harm,

as follows:



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        The Supreme Court’s plurality decision in Baze [v. Rees] held that
the petitioners in that case “have not carried their burden of showing
that the risk of pain from maladministration of a concededly humane
lethal injection protocol” constitutes cruel and unusual punishment. [553
U.S. 35, 41, 128 S. Ct. 1520, 1526 (2008)]. Muhammad makes a similar
claim in this case that, if not properly administered and if the individual's
level of consciousness is not properly determined, the use of midazolam
hydrochloride will result in severe and needless suffering when the two
subsequent drugs are administered. However, Dr. Heath agreed that the
dosage of midazolam hydrochloride called for in the protocol, if
properly administered together with adherence to the procedures for
determining consciousness, will result in an individual who is deeply
unconscious and who would feel no pain when the remaining drugs are
administered.

       We reject Muhammad's invitation to presume that the DOC will
not act in accordance with its lethal injection procedures adopted by the
DOC. The sufficiency of those procedures, other than the recent
substitution of the midazolam hydrochloride as the first drug, were
previously approved by this Court after a comprehensive evidentiary
hearing in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007). When we
relinquished for an evidentiary hearing in Valle [v. State] to examine the
safety and efficacy of pentobarbital, which had been substituted as the
first drug in the three-drug lethal injection protocol, we reiterated that
the portion of Florida’s lethal injection protocol ensuring that an inmate
will be unconscious prior to administration of the second and third
drugs has not been altered since the protocol was approved in
Lightbourne. Valle, 70 So. 3d at 541 n.12. Under that protocol, “he will
not be injected with the final two drugs, and the execution will be
suspended until Valle is unconscious.” Id. In the instant case, as we said
in Valle, the remainder of the protocol has not been revised. We
presume that the DOC will follow its own procedures and Muhammad
will not be injected with the final two drugs until he is unconscious.

       We acknowledge that, as we explained in Lightbourne, if the inmate
is not fully unconscious when the second and third drugs, vecuronium
bromide and potassium chloride, are administered, the inmate will suffer
pain. See Lightbourne, 969 So. 2d at 351. However, we agree with the
circuit court that Muhammad has not demonstrated that the conditions
presenting this risk are “sure or very likely” to cause serious illness or
needless suffering and give rise to “sufficiently imminent dangers” under
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      the standard set forth in Baze. Thus, we reject his constitutional
      challenge to the use of midazolam hydrochloride in the lethal injection
      procedure. See also Valle, 70 So.3d at 540–41 (rejecting challenge to
      newly-revised protocol substituting pentobarbital for the first drug in the
      three-drug protocol because Valle failed to show that 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).

Muhammad, 2013 WL 6869010, at *10–11 (footnotes omitted). On December 27,

2013, Muhammad petitioned for a writ of certiorari from the Supreme Court of the

United States, which is still pending.

      On December 23, 2013, Muhammad filed a complaint in the district court

raising the same challenge to the lethal injection protocol against Michael Crews, in

his official capacity as the Secretary of the Florida Department of Corrections, John

Palmer, in his official capacity as the Warden of Florida State Prisons, Pam Bondi, in

her official capacity as the Attorney General of Florida, and Does 1-50, executioners

for the State of Florida. Muhammad’s federal complaint alleged, like his state-court

motion, that the use of midazolam hydrochloride, the first drug in the three-drug

lethal injection protocol, violates the prohibition of cruel and unusual punishments in

the Eighth Amendment. See 42 U.S.C. § 1983. The federal complaint alleged verbatim

that midazolam hydrochloride, used to render the inmate unconscious, is not as

effective as other drugs used as anesthetics in executions. The complaint alleged that

the consciousness check currently in use is inadequate to ensure the inmate remains

unconscious for the entire execution. Moreover, the complaint alleged that midazolam

hydrochloride takes more time to take effect, but that the Department of Corrections
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did not adjust its lethal injection protocol to increase the amount of time between the

injection of midazolam hydrochloride and the second and third drugs and “the failure

to adjust the protocol or wait the prescribed amount of time creates a substantial risk

of harm to Mr. Muhammad because he will be injected with an agonizing paralytic

before the midazolam has ablated consciousness.” The federal complaint relied on

news articles, which reported that an inmate moved in a previous execution after the

drug was administered, and testimony from the evidentiary hearing on the use of the

drug ordered by the Supreme Court of Florida.

       Muhammad also filed a motion to stay his execution, which the district court

denied. Muhammad argued that a stay was warranted because the testimony from the

state-court evidentiary hearing established that the use of midazolam hydrochloride

created a substantial risk of serious harm. The district court denied the motion

because Muhammad failed to establish a substantial likelihood of success on the

merits. The district court ruled that the statute of limitations barred his claim.

Alternatively, the district court ruled that Muhammad’s Eighth Amendment challenge

was unlikely to succeed on the merits.

       Muhammad filed a motion for reconsideration of the denial of the stay, which

the district court denied. Before the district court ruled on the motion, the district

court ordered the Florida officials to produce documents it disclosed in other state-

court litigation challenging the lethal injection protocol. The officials objected to the



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order, but complied in part. After reviewing the execution logs and other documents

produced by the officials, the district court denied the motion for reconsideration.

      Based on the documents produced by Florida officials, Muhammad filed an

amended complaint and an amended motion to stay his execution. The amended

complaint relied on execution logs produced by the Department of Corrections, in

addition to the articles about a past execution and testimony from the evidentiary

hearing. The amended complaint argued that the execution log of Agent Jonathon

Feltgen, an execution monitor, did not chart the amount of time between the

administration of midazolam hydrochloride and the second drug, which is “a critical

part of the constitutional analysis.” The amended complaint alleged that “[t]he failure

to accurately and adequately document and detail the events that the monitors are

observing demonstrates the trained or ingrained desire to keep secret any perceived

problems that occur in an execution,” and “[t]his culture of secrecy places Mr.

Muhammad at a substantial risk of serious harm.”

      The district court denied the amended motion to stay the execution. The court

ruled that Muhammad “has failed to show a substantial likelihood of success on the

merits of [his] lethal injection claim, even as amended.” Muhammad timely appealed

the denial of the motion to stay the execution and the denial of the amended motion

to stay the execution on January 3, 2014. He also filed an application to stay his

execution in our Court on January 6, 2014.

                           II. STANDARD OF REVIEW
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       We review the denial of a stay of execution for abuse of discretion. See Powell v.

Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011). We will grant a stay of execution 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 the injunction issues; (3) the stay

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

not be adverse to the public interest.” Id.

                                  III. DISCUSSION
       The district court did not abuse its discretion when it denied the motion to stay

the execution and the amended motion to stay the execution, nor will we grant the

application for a stay of execution filed in our Court. Muhammad cannot establish

that he has a substantial likelihood of success on the merits. The Supreme Court of

Florida has already decided his Eighth Amendment claim, Muhammad, 2013 WL

6869010, at *10–11, and res judicata bars his federal complaint. The State of Florida

has raised the defense of res judicata in both the district court and in our Court.

Muhammad has never offered an explanation to rebut the argument that res judicata

bars his federal complaint.

       When we consider “whether to give res judicata effect to a state court judgment,

we ‘must apply the res judicata principles of the law of the state whose decision is set

up as a bar to further litigation.’” Green v. Jefferson Cnty. Comm’n, 563 F.3d 1243, 1252

(11th Cir. 2009) (quoting Kizzire v. Baptist Health Syst., Inc., 441 F.3d 1306, 1308–09

(11th Cir. 2006)). Florida law establishes that “[a] judgment on the merits rendered in

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a former suit between the same parties or their privies, upon the same cause of action,

by a court of competent jurisdiction, is conclusive not only as to every matter which

was offered and received to sustain or defeat the claim, but as to every other matter

which might with propriety have been litigated and determined in that action.” Fla.

Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (quoting Kimbrell v. Paige, 448

So. 2d 1009, 1012 (Fla. 1984)). In other words, a judgment on the merits bars a later-

filed complaint when the following four conditions are present: “(1) identity of the

thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to

the action; and (4) identity of quality in persons for or against whom [the] claim is

made.” Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1332 (11th Cir. 2010) (internal

quotation mark omitted). Florida law defines identical causes of action as causes

“sharing similarity of facts essential to both actions.” Fields v. Sarasota Manatee Airport

Auth., 953 F.2d 1299, 1307–08 (11th Cir. 1992) (internal quotation marks omitted).

       Under the Florida law of res judicata, the rejection of Muhammad’s Eighth

Amendment claim by the Supreme Court of Florida on December 19, 2013, bars his

attempt to litigate that claim anew in federal court. See Fla. Dep’t of Transp., 801 So. 2d

at 105 (“[A] judgment rendered by a court of competent jurisdiction, on the merits, is

a bar to any future suit between the same parties or their privies on the same cause of

action, so long as it remains unreversed.” (quoting McGregor v. Provident Trust Co., 162

So. 323, 327 (Fla. 1935))). The decision rendered by the Supreme Court of Florida was

a judgment on the merits that rejected the same claim Muhammad now alleges in
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federal court: the use of midazolam hydrochloride in Florida’s three-drug lethal

injection protocol creates a substantial risk of serious harm. The cause of action is the

same in federal court as it was in state court because both actions involve similar facts

essential to the Eighth Amendment claim: allegations that an inmate executed in

October 2013 moved minutes after the administration of midazolam hydrochloride;

allegations that midazolam hydrochloride does not last as long as other drugs used as

anesthesia in executions; allegations that midazolam hydrochloride requires more time

to take effect; and allegations that the Department of Corrections fails to follow

protocol during executions by failing to ensure that the inmate is unconscious. We

acknowledge that the amended complaint incorporates factual allegations derived

from the execution logs that Florida officials disclosed to Muhammad and the district

court after the Supreme Court of Florida issued its decision. But those execution logs

provide only more detailed factual allegations about previous executions that

Muhammad extensively discussed in his motion for relief that the Supreme Court of

Florida rejected. Finally, the parties involved in the state-court action and the federal

lawsuit are also the same. The individuals named in the federal lawsuit are sued in

their official capacity and are in privity with the State of Florida, the defendant in the

state-court action. See Welch v. Laney, 57 F.3d 1004, 1009 (11th Cir. 1995) (“[W]here a

plaintiff brings a[] [§ 1983] action against a public official in his official capacity, the

suit is against the office that official represents, and not the official himself.”).



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       Because res judicata bars Muhammad from relitigating these claims in his

federal complaint, Muhammad has failed to establish a substantial likelihood that can

succeed on the merits. The district court did not err when it denied Muhammad’s

motions to stay the executions, and we refuse to grant his application in our Court.

Federal review of Muhammad’s Eighth Amendment claim, already decided by the

Supreme Court of Florida, is available in the Supreme Court of the United States, in

which his petition for a writ of certiorari is pending.

                                 IV. CONCLUSION
       We AFFIRM the denial of the motions for a stay of execution. We DENY

Muhammad’s application for a stay of execution. We DENY Muhammad’s request

for oral argument.




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