               Case: 15-15732    Date Filed: 01/19/2016   Page: 1 of 25


                                                                          [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 15-15732
                            ________________________

            D.C. Docket Nos. 2:12-CV-0316-WKW, 2:13–CV-0781-WKW,
          2:14-CV-1028-WKW, 2:14-CV-1029-WKW, 2:14-CV-1030-WKW

CHRISTOPHER EUGENE BROOKS

                                                  Intervenor Plaintiff - Appellant,

versus

WARDEN,
COMMISSIONER, ALABAMA DOC,

                                              Defendants - Appellees.
                            ________________________

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

                                 (January 19, 2016)

Before HULL, MARCUS, and JULIE CARNES, Circuit Judges:

MARCUS, Circuit Judge:

         Appellant Christopher E. Brooks, an Alabama death row inmate, appeals

from the district court’s denial of his emergency motion to stay execution for the

1992 rape, burglary, robbery, and murder of Jo Deann Campbell. He has also filed
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with this Court an emergency motion for a stay of execution. After the state

moved to set an execution date, Brooks intervened pursuant to Fed. R. Civ. P.

24(b) in a consolidated action filed by five inmates on Alabama’s death row. That

lawsuit had started more than three years earlier as a claim brought under Title 42

U.S.C. § 1983 in the United States District Court for the Middle District of

Alabama challenging the constitutionality of Alabama’s method of execution. In

the consolidated action, the plaintiffs broadly claimed that Alabama’s current

three-drug lethal injection protocol -- which uses midazolam, rocuronium bromide,

and potassium chloride -- created a substantial risk of serious harm in violation of

the Cruel and Unusual Punishments Clause of the Eighth Amendment.

      After Brooks recently intervened in the consolidated action and filed a

complaint largely repeating the earlier plaintiffs’ allegations, he filed an emergency

motion last month in the district court to stay his execution, which is now

scheduled for January 21, 2016 at 6:00 pm CST. The trial court denied his motion

for a stay, explaining that Brooks had not shown a substantial likelihood of success

on the merits of his Eighth Amendment claim because: (1) he failed to show an

available and feasible alternative method of execution, as required by controlling

case law; and (2) he failed to show that he brought this claim within the applicable

two-year statute of limitations. Moreover, the district court determined that the

balance of equities weighed against granting a stay because Brooks unreasonably


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delayed bringing his lawsuit until it was too late to resolve the merits of his claim

without staying his execution. After carefully reviewing the record before us, we

can discern no abuse of discretion and, accordingly, affirm the judgment of the

district court, and also deny Brooks’s emergency motion to stay filed in this Court.

                                          I.

      The facts of the rape, burglary, robbery, and murder that Brooks committed

have been laid out in several earlier decisions of the Alabama state courts. See

Brooks v. State, 695 So. 2d 176, 178-79 (Ala. Crim. App. 1996) (“Brooks I”),

aff’d, 695 So. 2d 184, 186-87 (Ala. 1997) (“Brooks II”); see also Brooks v. State,

929 So. 2d 491, 494-95 (Ala. Crim. App. 2005) (“Brooks III”). As the state court

detailed, on December 31, 1992, Jo Deann Campbell was found bludgeoned to

death, naked from the waist down, with semen in her vagina. Brooks was later

seen driving the victim’s car, and was arrested while in possession of her car keys

and credit card. Law enforcement authorities confirmed that he had cashed the

victim’s paycheck and had pawned some items missing from her apartment.

Brooks also admitted to having had sex with Ms. Campbell, which was

corroborated by DNA evidence.

      After trial in Jefferson County, Alabama, a state jury convicted Brooks of

three counts of capital murder for killing the victim during the course of a rape,

during the course of a robbery, and during the course of a burglary. Following the


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penalty phase, the jury recommended that Brooks be sentenced to death by a vote

of 11 to 1, and an Alabama circuit court sentenced Brooks to death. His conviction

and death sentence were affirmed on direct appeal, see Brooks I, 695 So. 2d at 176;

Brooks II, 695 So. 2d at 184, and the United States Supreme Court denied his

petition for certiorari. Brooks v. Alabama, 522 U.S. 893 (1997). On collateral

review, the Alabama state court denied his Rule 32 petition, and the Alabama

Court of Criminal Appeals affirmed. Brooks III, 929 So. 2d at 515. Brooks then

petitioned the United States District Court for the Northern District of Alabama for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the

petition. We affirmed, and the United States Supreme Court again denied his

petition for certiorari. Brooks v. Comm’r, Ala. Dep’t of Corr., 719 F.3d 1292,

1305 (11th Cir. 2013) (“Brooks IV”), cert. denied sub nom. Brooks v. Thomas, 134

S. Ct. 1541 (2014).

      On September 10, 2014, the Defendants (collectively, the Alabama

Department of Corrections or “ADOC”) amended Alabama’s execution protocol in

two ways: (1) they substituted midazolam hydrochloride for pentobarbital as the

first drug administered in its three-drug lethal-injection sequence, and (2) they

substituted rocuronium bromide for pancuronium bromide as the second drug to be

administered. The third drug, potassium chloride, remained the same. Thereafter,

Brooks’s execution date was initially set for May 21, 2015, but the Alabama


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Supreme Court stayed the execution, pending the Supreme Court’s decision in

Glossip v. Gross, 135 S. Ct. 2726 (2015), a case that squarely raised Eighth

Amendment claims about the use of midazolam in lethal-injection executions in

Oklahoma.

      While Glossip was working its way through the courts, a consolidated action

was being litigated in the United States District Court for the Middle District of

Alabama. That group of cases began as one lawsuit originally filed on April 6,

2012, when an Alabama death row inmate sued pursuant to 42 U.S.C. § 1983 to

challenge the constitutionality of Alabama’s lethal injection protocol. See Grayson

v. Dunn, No. 12-cv-00316-WKW (M.D. Ala.). The lawsuit initially challenged

Alabama’s previous lethal injection protocol, but it evolved along with the state’s

new protocol, and now is known as the “Midazolam Litigation.” Since 2012, cases

brought by four other Alabama death row inmates have been consolidated into the

Midazolam Litigation. On October 18, 2005, the district court denied the state’s

motion to dismiss the Midazolam Litigation, and on November 20, 2015, the

district court set an evidentiary hearing for April 19-22, 2016.

      Although the consolidated action had been pending in district court since

2012, Brooks did not move to intervene until November 2, 2015, more than three-

and-a-half years after the suit was commenced, and forty days after the state

moved the Alabama Supreme Court to set an execution date for Brooks. On


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November 23, 2015, the district court granted the motion to intervene. Earlier on

the same day, the Alabama Supreme Court had granted the state’s motion and set

Brooks’s execution for January 21, 2016.

      On December 4, 2015, Brooks filed an Emergency Motion for Stay of

Execution. The district court denied the application on December 22, 2015. In a

thorough and well-reasoned order, the district court explained that Brooks had not

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

Amendment claim because he failed to adequately show an available and feasible

alternative method of execution, as required by Glossip. Among other things, the

district court determined that Brooks had not sufficiently demonstrated that two of

his proposed single-injection alternatives -- sodium thiopental and pentobarbital --

are readily available to the ADOC. The court added that Brooks had also failed to

adequately demonstrate that his third proposed alternative -- midazolam alone -- is

an effective alternative. In addition, the district court concluded that Brooks had

not shown a substantial likelihood of success on the merits because his Eighth

Amendment claim was time-barred as of 2004, and he had not sufficiently

demonstrated that the clock should have been reset when Alabama switched to the

current protocol. Finally, the district court held that because Brooks unreasonably

delayed bringing this lawsuit, the balance of equities did not lie in Brooks’s favor

for a stay. Brooks now appeals the district court’s denial of his emergency motion


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for a stay and also moves this Court on an emergency basis for a stay of execution

“to allow measured consideration of the issues of first impression raised by the

District Court’s ruling.”

                                          II.

      It is by now hornbook law that a court may 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.” See Powell v. Thomas, 641 F.3d

1255, 1257 (11th Cir. 2011) (emphasis added). Moreover, we review the denial of

a stay of execution only for abuse of discretion. Id.

      In an Eighth Amendment challenge to the lethal injection protocol used by

Oklahoma, the Supreme Court recently held:

      [P]risoners cannot successfully challenge a method of execution
      unless they establish that the method presents a risk that is “ ‘sure or
      very likely to cause serious illness and needless suffering,’ and give
      rise to ‘sufficiently imminent dangers.’ ” To prevail on such a claim,
      “there must be a ‘substantial risk of serious harm,’ an ‘objectively
      intolerable risk of harm’ that prevents prison officials from pleading
      that they were ‘subjectively blameless for purposes of the Eighth
      Amendment.’ ” . . . [P]risoners “cannot successfully challenge a
      State’s method of execution merely by showing a slightly or
      marginally safer alternative.” Instead, prisoners must identify an
      alternative that is “feasible, readily implemented, and in fact
      significantly reduce[s] a substantial risk of severe pain.”



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      . . . [T]he requirements of an Eighth Amendment method-of-execution
      claim [are summarized] as follows: “A stay of execution may not be
      granted on grounds such as those asserted here unless the condemned
      prisoner establishes that the State’s lethal injection protocol creates a
      demonstrated risk of severe pain. [And] [h]e must show that the risk is
      substantial when compared to the known and available alternatives.”

Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015) (citations and emphasis omitted);

see also Baze v. Rees, 553 U.S. 35, 50, 61 (2008) (plurality opinion); Gissendaner

v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1283 (11th Cir. 2015). In Glossip,

the Supreme Court applied this test and held that the district court did not commit

clear error when it found that midazolam (as the first drug in Oklahoma’s three-

drug protocol) is highly likely to render a person unable to feel pain during an

execution, and, therefore, that the plaintiff failed to sustain his burden under the

Eighth Amendment. 135 S. Ct. at 2739. The three-drug protocol approved in

Glossip -- using midazolam, rocuronium bromide (or a “functionally equivalent”

bromide paralytic), and potassium chloride, id. at 2734-35 -- is the very same

protocol that Brooks challenges here. On this record, Brooks has not established a

substantial likelihood that the State’s lethal injection protocol creates a

“demonstrated risk of severe pain” (an especially difficult burden to meet since the

Supreme Court approved of the very same three-drug protocol in Glossip).

      In the face of Glossip, Brooks’s claim now is that the three-drug protocol

creates a substantial risk of severe pain when compared to Brooks’s proposed

single-injection alternatives. We agree with the district court, however, that
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Brooks has not established a substantial likelihood that he would be able to show

that the risk is “substantial when compared to the known and available

alternatives” -- the second prong of the Glossip test.1 As the Supreme Court made

abundantly clear in Glossip itself, the burden rests with the claimant to “plead and

prove” both prongs of the test. See id. at 2739; see also id. at 2737 (holding that

“the condemned prisoner [must] establish[] that the State’s lethal injection protocol

creates a demonstrated risk of severe pain [and] . . . that the risk is substantial when

compared to the known and available alternatives” (quoting Baze, 553 U.S. at 61)).

Thus, capital prisoners seeking a stay of execution must show “a likelihood that

they can establish both that [the state’s] lethal injection protocol creates a

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

the known and available alternatives.” Id.; see also id. (“A stay of execution may

not be granted on grounds such as those asserted here unless the condemned

prisoner . . . show[s] that the risk is substantial when compared to the known and

available alternatives.” (quotation omitted and emphasis added)).

       In his intervenor complaint, Brooks has alleged that midazolam -- the first of

the three drugs used in Alabama’s execution protocol -- will not properly

anesthetize him so as to prevent him from feeling an “unconstitutional level of
1
  In reaching this conclusion, we do not address Brooks’s claim that the district court placed too
high a pleading burden on him. The district court did not dismiss Brooks’s complaint for failure
to state a claim, and he is not appealing any decision to that effect. Rather, the district court
denied his emergency motion to stay his execution, and that is all that we are reviewing on
appeal.
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pain” associated with the injection of the other two drugs that will kill him

(rocuronium bromide and potassium chloride). He also claims that midazolam

may exhibit a “ceiling effect” -- that is, at a certain point, an increase in the dose

administered will not have any greater effect on an inmate. Brooks says that there

are three alternative methods of execution available to the ADOC that significantly

reduce the risk of an unconstitutional level of pain: (1) a single injection of

pentobarbital; (2) a single injection of sodium thiopental; or (3) a single injection

of midazolam. On this record, we are unpersuaded.

          As for the first option, Brooks provides three pieces of evidence in support

of his allegation that a single dose of pentobarbital is a known, available, and safer

alternative method of execution. First, he cites news articles showing that in other

states (Texas, Colorado, Ohio, Georgia, Missouri, Mississippi, Oklahoma, South

Dakota, and Pennsylvania), nearly forty inmates have been executed using “a

single bolus of pentobarbital, making it the most common method of execution in

the United States.” But the fact that the drug was available in those states at some

point over the past two years does not, without more, make it likely that it is

available to Alabama now. Second, he cites a bare comment made by counsel for

the Alabama Department of Corrections during a status conference in another case

in May 2014. 2 But that alleged admission -- which the ADOC construes as saying


2
    The transcript from that hearing reflects the following brief exchange:
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that compounded pentobarbital was available to certain states, but not necessarily

to Alabama -- is twenty months out of date at this point.

      Indeed, in more recent filings, the ADOC has said that it has been unable to

procure pentobarbital and that it does not have a source for pentobarbital. See

Doc. 73 at 27; see also Glossip, 135 S. Ct. at 2733-34 (“The District Court below

found that both sodium thiopental and pentobarbital are now unavailable to

Oklahoma.”). While pleadings do not constitute evidence, it is not the state’s

burden to plead and prove that it cannot acquire the drug. As the Supreme Court

explained, it is Brooks’s burden to “identify an alternative that is feasible, readily

implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”

Id. at 2737 (quotation omitted). Brooks has neither shown a substantial likelihood

that there is now a source for pentobarbital that would sell it to the ADOC for use

in executions, nor that an execution protocol involving this drug would be readily

implementable by the ADOC. Without some showing that pentobarbital is

currently “known and available” to the ADOC, there is no substantial likelihood

that Brooks could satisfy this prong of the Glossip test.



      The Court: But [pentobarbital is] available through compounding companies or
      compounding agencies?

      Counsel for ADOC: It is, Your Honor.

See Status Conference, Arthur v. Myers, No. 2:11-cv-00438-WKW-TFM (M.D. Ala. May 19,
2014), Doc. 171.
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       As for a second alternative, Brooks proposes the use of sodium thiopental,

and alleges that it is available based on the representations of three states --

Nebraska, Ohio, and Texas -- that they could legally obtain the drug. Brooks cites

as support just a newspaper article in which the governor of Nebraska announced

that the state had purchased sodium thiopental from India.3 He also cites a second

news article reporting that Texas had received approval from the Drug

Enforcement Agency to import sodium thiopental. 4 And, finally, he references a

letter from Ohio to the Food and Drug Administration (“FDA”) claiming that there

are legal ways to import sodium thiopental for use in executions. 5

       These allegations of availability are not sufficient to satisfy the unambiguous

requirement laid out in Glossip. The newspaper assertion that a drug might have

been available to others at some other time from India does not show a substantial

3
  See Paul Hammell and Martha Stoddard, “Nebraska has purchased drugs necessary for lethal
injections, Gov. Ricketts says,” Omaha World-Herald (May 14, 2015),
http://www.omaha.com/news/crime/nebraska-has-purchased-drugs-necessary-for-lethal-
injections-gov-ricketts/article_3423d60a-fa8c-11e4-a761-1f25f74fc5ba.html (“Ricketts . . . said
the state has purchased two of the necessary drugs, sodium thiopental and pancuronium bromide,
from a distributor in India, HarrisPharma, and already has a supply of the third drug required,
potassium chloride.”).
4
  Astrid Galvan, “Document: Arizona tried to illegally import execution drug,” Miami Herald
(Oct. 22, 2015), http://www.miamiherald.com/news/nation-world/national/article41143878.html
(“On Thursday, Texas said it had obtained a license from the U.S. Drug Enforcement
Administration to import sodium thiopental.”).
5
  Doc. 75-2, Letter from Ohio Department of Rehabilitation & Correction to FDA (Oct. 9, 2015)
(Ohio “believe[s] that if a state were to attempt to import thiopental under . . . five conditions
[listed above], . .. it would be lawful and permissible for a state to proceed with such lawful
importation.”).


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likelihood that the drug is “readily available” to the ADOC -- especially since the

very news articles Brooks cites questioned both the purity and the legality of the

imported drugs,6 reported that federal agents seized Arizona’s shipment of the drug

and would not “budge[]” on releasing it, 7 and emphasized that many states had not

been able to obtain the drug despite repeated efforts.8 In addition, the Ohio letter

was simply a response to a letter from the FDA “impl[ying] . . . that the

importation of sodium thiopental is currently prohibited.”9 Quite simply, the news

articles and letter strongly undermine the claims that Alabama could readily import

sodium thiopental and that an execution protocol involving this drug is readily

available to be used.




6
  See Hammell & Stoddard, supra note 3 (“[A Nebraska state senator] said the state will have to
show that the drugs were obtained from a source approved by the U.S. Food and Drug
Administration. . . . Ricketts’ spokesman . . . said the drugs will be sent to an independent
laboratory to be tested for purity.”).
7
  See Galvan, supra note 4 (“Arizona and other death penalty states have been struggling to
obtain legal execution drugs for several years after European companies refused to sell the drugs,
including sodium thiopental, that have been used to carry out executions. . . . Earlier this year,
Nebraska was told by the FDA that it could not legally import the drug it needed to carry out
lethal injections after the state paid $54,400 for drugs from Harris Pharma, a distributor in India.
When [Arizona’s lethal injection] drugs arrived via British Airways at the Phoenix International
Airport in July, they were seized by federal officials and have not been released, according to the
documents. [T]he FDA has not budged.”).
8
    Id.
9
 Doc. 75-2 (“[The FDA’s letter] impli[ed] . . . that the importation of sodium thiopental is
currently prohibited. . . . [I]t is [Ohio’s] position that the FDA’s apparent belief that [case law]
completely prohibit[s] the importation of sodium thiopental grossly overstates what the courts’
actual rulings were. . . .”).
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      Although Brooks contends that a single dose of sodium thiopental would

constitute an effective lethal injection protocol, we are uncertain whether it has

ever been used before as a stand-alone execution drug. Brooks alleges that

“experts [have] stated” that a sufficient dose of sodium thiopental “would cause

death without need of a paralytic or potassium chloride,” but he cites no support

for that allegation. Furthermore, while he alleges that it was “the primary drug

used in three-drug protocols for over a decade,” he does not say that it has ever

been used as the sole drug in a lethal injection execution. Without some palpable

evidence that sodium thiopental is currently “known and available” to the ADOC

and would constitute a viable alternative method of execution -- and Brooks has

offered us only two newspaper articles and a letter to the FDA -- there is nothing

remotely resembling a showing of a substantial likelihood that Brooks could satisfy

this prong of the Glossip test.

      Brooks’s third proposed alternative is to use midazolam alone, and not in

concert with two other drugs. Alabama already uses midazolam as the first drug in

its three-drug cocktail. And it is undisputed that midazolam is currently available

to the ADOC. But the only evidence that Brooks has provided us regarding the

efficacy of a single-drug execution protocol using midazolam is a citation to

Glossip, where the Court noted that the district court had found that “a massive

500-milligram dose” of midazolam “will likely cause death in under an hour.”


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Glossip, 135 S. Ct. at 2741 n.4. Brooks admits in his complaint that a single drug

lethal injection protocol using midazolam “has not previously been used,” and

“there are still questions concerning whether the ceiling effect of midazolam would

preclude a fatal dose of the drug.” Still, Brooks alleges that the defendants cannot

justify using the second and third drug in the execution protocol given the

increased risk of pain that they pose.

      On this record, Brooks has failed to show a substantial likelihood that a

single-drug execution protocol using only midazolam is a feasible, readily

implementable, and significantly safer method of execution. For starters, Brooks’s

admissions that a midazolam-only protocol has never been used in an execution

and, furthermore, that midazolam’s ceiling effect may render it non-lethal deeply

undercut his claim that it is a known, readily implementable, and materially safer

lethal injection alternative. Given the paucity of Brooks’s evidentiary proffer, we

see no likelihood (let alone a substantial likelihood) that he would be able to

establish that a heretofore untested lethal injection protocol involving only

midazolam is materially safer than a protocol that is identical to one approved by

the Supreme Court not seven months ago. See Glossip, 135 S. Ct. at 2734-35.

      Furthermore, there is a fundamental tension in Brooks’s argument. On the

one hand, Brooks seems to concede that midazolam will render him deeply

unconscious and insensate to pain, resulting in a pain-free death. On the other


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hand, he contends that midazolam will not render him sufficiently insensate to pain

when followed by an injection of the other two drugs in Alabama’s protocol. We

do not see how he can argue, without evidentiary support, that midazolam alone

can be used to render him unconscious and painlessly kill him, and in the same

breath say that the drug ought not be used as the first drug because it will not

render him insensate when used with two other drugs. The bottom line is that

Brooks has failed to adequately show that a single-injection midazolam protocol is

“an alternative that is feasible, readily implemented, and in fact significantly

reduce[s] a substantial risk of severe pain,” when compared to Alabama’s current

three-drug protocol. Id. at 2737 (quotation omitted).

       In short, Brooks has failed to show a substantial likelihood that there is a

known, readily available, and materially safer method of execution. Nothing we

say should be read as holding that single-injection drug protocols could not offer

valid alternatives. Rather, on this record, we hold only that Brooks has failed to

show that Alabama’s three-drug protocol creates “a demonstrated risk of severe

pain” and that “that risk is substantial when compared to the known and available

alternatives.” Id. The district court did not abuse its discretion in denying the

motion for stay. 10


10
  Brooks also argues that, in light of our decision in Arthur v. Thomas, 674 F.3d 1257 (11th Cir.
2012), the district court erred in denying him a stay of execution without first conducting an
evidentiary hearing. However, in Arthur, the district court had dismissed the prisoner’s
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                                               III.

       We are constrained to affirm the district court’s denial of Brooks’s motion

for stay for yet another reason -- there is no substantial likelihood of success on his

Eighth Amendment claim because it is, as the district court plainly found, time-

barred. It is well settled that “a 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 changed execution protocol.” McNair v.

Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). Our precedent makes clear that a

“substantial change” is one that “significantly alter[s] the method of execution.”

Gissendaner, 779 F.3d at 1282.

       The statute of limitations applicable to Brooks’s Eighth Amendment claim is

two years. See Ala. Code § 6-2-38 (1975) (establishing a two-year statute of

limitations for personal injury actions); McNair, 515 F.3d at 1173 (holding that

courts must look to state’s personal injury statute of limitations to determine statute

of limitations under § 1983). As the district court detailed, the statute of

limitations for Brooks’s claim began to run on July 31, 2002, the date that


complaint. See Mann v. Palmer, 713 F.3d 1306, 1316 (11th Cir. 2013) (“In Arthur, the district
court had summarily dismissed the inmate’s complaint solely on the basis of the statute of
limitations . . . and [w]e did not consider whether Arthur had stated a plausible claim under the
Eighth Amendment. Nor did we consider whether Arthur could establish that he had a
substantial likelihood of success on the merits to warrant a stay of execution.”). In this case, we
are faced only with the district court’s denial of a stay of execution, which requires Brooks to
establish a substantial likelihood of success on the merits, and not with the dismissal of a
complaint, which would have required him to plausibly allege an Eighth Amendment violation.
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Alabama changed its method of execution to a three-drug lethal injection protocol.

At that time, his state court review had been finalized (since 1997), and Brooks

knew that he was subject to execution by lethal injection rather than by

electrocution. Therefore, he should have filed his claim by July 31, 2004. He did

not, waiting instead until November 2, 2015, to intervene in the Midazolam

Litigation.

      Brooks argues, however, that Alabama’s switch on September 11, 2014, to a

protocol using midazolam as the first drug signals a “substantial change” in the

protocol that operates to reset the statute-of-limitations clock. We are

unpersuaded.

      It is undisputed that Alabama has used a three-drug protocol since it began

performing executions by lethal injection in 2002. Brooks also admits that

potassium chloride has always been the third drug in the protocol, and that the

second drug has always been a paralytic -- either pancuronium bromide or

rocuronium bromide. But Alabama has changed the first drug twice: From 2002

until April 6, 2011, Alabama used sodium thiopental as the first drug in the three-

drug sequence. From 2011 to September 10, 2014, it used pentobarbital as the first

drug. And since September 11, 2014, it has used midazolam as the first drug.

      The crux of Brooks’s argument is that the three-drug protocol Alabama

implemented on September 11, 2014, constitutes a substantial change because


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midazolam as the first drug -- as opposed to pentobarbital or sodium thiopental --

is not an effective analgesic (or pain reliever). But he has provided no evidence to

show that pentobarbital or sodium thiopental would have been any more effective

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

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

Because he has proffered nothing to establish, by a substantial likelihood, that

midazolam constituted a “substantial change” from the earlier protocols, we cannot

say that the 2014 switch to midazolam triggered a new statute-of-limitations

period.

      Moreover, as the Supreme Court recognized in Glossip, “numerous courts

have concluded that the use of midazolam as the first drug in a three-drug protocol

is likely to render an inmate insensate to pain that might result from administration

of the paralytic agent and potassium chloride.” 135 S. Ct. at 2739-40 (citing, e.g.,

Chavez v. Florida SP Warden, 742 F.3d 1267 (11th Cir. 2014); Howell v. State,

133 So. 3d 511 (Fla. 2014)). The Supreme Court pointed out that midazolam had

been used “without any significant problems” in twelve executions, 135 S. Ct. at

2746, and that testimony from both sides supported the district court’s conclusion

that midazolam can render a prisoner unconscious and insensate during the

remainder of a three-drug procedure, id. at 2741. Indeed, the very three-drug

protocol approved by the Supreme Court in Glossip is the same one Alabama will


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use here. Id. at 2734-35. Brooks has given us no reason to believe that Alabama’s

use of midazolam in Alabama’s three-drug protocol would lead to any different

result than it has elsewhere. Nor, more to the point, has he established a

substantial likelihood that the substitution of midazolam for pentobarbital was a

“substantial change” to Alabama’s protocol, or that it “significantly alter[ed] the

method of execution.” Gissendaner, 779 F.3d at 1282.

                                         IV.

      We offer a final comment on the effect of Brooks’s delay in bringing a

§ 1983 method of execution suit on the analysis of his motion for stay of

execution. Injunctive relief, including a stay of execution, is “an equitable remedy

that is not available as a matter of right.” Grayson v. Allen, 491 F.3d 1318, 1322

(11th Cir. 2007). “[T]he equitable principles at issue when inmates facing

imminent execution delay in raising their § 1983 method-of-execution claims are

equally applicable to requests for both stays and injunctive relief.” Id.; see also

Williams v. Allen, 496 F.3d 1210, 1212-13 (11th Cir. 2007). As the Supreme

Court has unanimously instructed on multiple occasions, courts considering

whether to grant a stay of execution “must be sensitive to the State’s strong interest

in enforcing its criminal judgment without undue interference from the federal

courts,” and “must . . . apply ‘a strong equitable presumption against the grant of a

stay [of execution] where a claim could have been brought at such time as to allow


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consideration of the merits without requiring entry of a stay.’” Hill v.

McDonough, 547 U.S. 573, 584 (2006) (quoting Nelson v. Campbell, 541 U.S.

637, 650 (2006)). Indeed, “[t]he federal courts can and should protect States from

dilatory or speculative suits.” Id. at 585.

      The district court squarely found that Brooks had exhibited “unreasonable,

unnecessary, and inexcusable delay in bringing suit” that prevented his method of

execution claim from being adjudicated without granting a stay of execution.

Therefore, applying a strong presumption against granting equitable relief, it found

that the equities weighed against granting a stay of execution. We review the

district court’s finding that Brooks’s delay was unnecessary and inexcusable for

clear error. Grayson, 491 F.3d at 1324-25.

      The district court summarized Brooks’s delay this way:

      The chronology of Brooks’s post-conviction litigation time-line and
      other significant developments reflect that his November 2, 2015
      motion to intervene in the method-of-execution challenge presented in
      this Midazolam Litigation comes: (1) nineteen months after the U.S.
      Supreme Court denied certiorari on Brooks’s habeas petition; (2)
      fourteen months after the State of Alabama announced it was
      changing its execution protocol by substituting midazolam for
      pentobartital as the first drug administered in the three-drug, lethal-
      injection sequence; (3) four months after Glossip was decided; (4) five
      weeks after the State moved (for a second time) to set an execution
      date for Brooks; (5) a year or more after his co-Plaintiffs filed in the
      Midazolam Litigation . . . ; and (6) eleven weeks and four days prior
      to his January 21, 2016 execution date.

Doc. 93 at 30.


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      Brooks does not challenge any of these facts, but proffers a laundry list of

reasons to explain why his delay prior to challenging Alabama’s execution

protocol should be excused. In short, he argues that he had no reason to challenge

Alabama’s protocol because other inmates were already litigating Eighth

Amendment challenges, and he had “no reason to believe” that the state would

seek to execute him while there were ongoing challenges to its execution protocol.

      Brooks’s speculation that the state would not seek to execute him while

others were challenging its protocol does not excuse his lengthy delay in asserting

his own rights. On March 24, 2014, the Supreme Court denied certiorari review of

the order dismissing Brooks’s petition for a writ of habeas court, Brooks v.

Thomas, 134 S. Ct. 1541 (2014), which “eliminate[d] the last possible obstacle to

[his] execution.” Grayson, 491 F.3d at 1325 (quotation omitted). Since then, he

was under a sentence of death and had no pending litigation challenging that

sentence or the method of execution. Yet for nineteen months, during which time

the state twice sought an execution date for him, he did nothing to challenge any

execution protocol. Not until five weeks after the state’s second motion for an

execution date did he seek to intervene in litigation challenging the protocol.

Excusing Brooks’s delay simply because other inmates were challenging the

protocol would mean that inmates have no obligation to timely file in the first

instance or intervene in protocol challenges. In reality, every state’s method of


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lethal injection is perennially being challenged. The district court did not clearly

err when it determined that Brooks had unnecessarily delayed in seeking to

challenge Alabama’s protocol.

      Brooks insists, nevertheless, that the state has contributed to the delay in this

case and, therefore, it cannot rely on his own unreasonable delay to defeat his

motion for a stay. He first faults the state for trying to “force the District Court to

take action” in the Midazolam Litigation, and then accuses the state of attempting

to “avoid any type of hearing on the merits of its execution protocol.” However, in

its order denying the motion to stay, the district court explained that the decision to

delay the hearings in the Midazolam Litigation until April 2016 was needed due to

the discovery schedule, and that the delay was not objected to by the plaintiffs. In

essence, Brooks is faulting the state for not accommodating him by waiting to seek

an execution date until all outstanding Eighth Amendment challenges by all

plaintiffs to its protocol are resolved. Nothing in the record suggests that the state

prevented Brooks from filing a challenge to Alabama’s execution protocol or from

joining a long-existing challenge at a time when his suit could have been

considered on the merits. The district court did not commit clear error when it

found that Brooks was responsible for his delay in seeking to challenge the

execution protocol.




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      Brooks still argues that the equities favor a stay because he will suffer

irreparable harm if he is executed, whereas the state will only suffer the minimal

inconvenience of having to postpone his hearing until after the Midazolam

Litigation evidentiary hearing. But, as the Supreme Court has recognized, the

state, the victim, and the victim’s family also “have an important interest in the

timely enforcement of [Brooks’s] sentence.” Hill, 547 U.S. at 584. After all,

Brooks raped and murdered Jo Deann Campbell on December 31, 1992, and he

was convicted of three counts of capital murder by a jury and sentenced to die for

his crimes in 1993. Brooks’s delay in asserting his rights undermines his argument

because, “[i]f [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.” Grayson, 491 F.3d at 1326; Jones v. Allen, 485 F.3d 635, 640 (11th

Cir. 2007) (subsequent history omitted) (By waiting so long “to file his challenge

to the State’s lethal injection protocol, Jones leaves 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.” (internal quotation marks

omitted)). His delay in challenging the protocol also created a “strong equitable

presumption” against granting a stay of execution, Hill, 547 U.S. at 584 (quotation

omitted), and he has failed to overcome that presumption.


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                                          V.

      In sum, Brooks has failed to show a substantial likelihood that he will

succeed on the merits of his Eighth Amendment challenge for two reasons. First,

he has failed to establish (as he must) a substantial likelihood that there are readily

available alternative methods of execution that pose a substantially lower risk of

severe pain relative to Alabama’s current lethal injection protocol. And second, he

has not established a substantial likelihood that his Eighth Amendment claim was

brought within the two-year statute of limitations. Finally, given his unnecessary

and unjustifiable delay in challenging Alabama’s lethal injection protocol, he has

not established that the equities favor granting his requested stay. For each of

these independent reasons, we are satisfied that the district court did not abuse its

discretion in denying Brooks’s motion for a stay of execution, and that his

emergency motion for stay filed in this Court must be denied.

      AFFIRMED AND MOTION FOR STAY OF EXECUTION DENIED.




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