Wednesday, September 6, 2017

Eleventh Circuit reverses grant of summary judgment against plaintiffs challenging Alabama’s lethal injection protocol

Last week the U.S. Court of Appeals for the 11th Circuit issued a unanimous decision in Grayson v. Warden. The plaintiffs-appellants are challenging Alabama’s three-drug lethal injection protocol, and the Eleventh Circuit reversed the district court’s grant of summary judgment against them. The opinion considered a number of procedural issues, including the summary judgment standard, law-of-the-case doctrine, and statute of limitations.

With respect to summary judgment, the Eleventh Circuit found that it was error for the district court to reject at the summary judgment phase the appellants’ contention that a single-drug protocol was an available alternative method of execution that sufficiently reduced the risk of pain:

The District Court reached this conclusion with respect to Appellants’ proposed single-drug protocol based on the testimony of the ADOC’s General Counsel, Anne Adams Hill. In deciding to credit Hill’s testimony and then weigh it against Appellants’ proof, the District Court functioned as a finder of fact and ultimate decision maker and therefore erred. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is not the court’s role to weigh conflicting evidence or to make credibility determinations; the non-movant’s evidence is to be accepted for purposes of summary judgment.”). The Court performed the same role when it determined the credibility of testimony and weighed the evidence in summarily disposing of Appellant’s midazolam proposal.

Also notable are the concluding pages of the opinion, which criticized the pleadings on both sides:

To begin, the complaints are replete with extraneous information: newspaper articles, websites, committee reports, letters to federal agencies, and hundreds of pages of evidentiary hearings and testimony from another case. See supra notes 14–23 and accompanying text. None of that information had any bearing whatsoever on whether the complaints stated a claim for relief under Rule 8(a) sufficient to withstand a Rule 12(b)(6) motion to dismiss. Pleading such extraneous matters affronts the spirit, if not the letter, of Rule 8, which requires pleadings to be “simple, concise and direct.” Fed. R. Civ. P. 8(d)(1). Further, the tactic is an end run around Rule 36, which constrains the drafter to seek admission of only that information which falls within the scope of discovery pursuant to Rule 26(b)(1), requires each proposed admission to be separately stated, and provides the opposing party a proper opportunity to admit or deny the information. It appears that the pleader’s goal in engaging in this tactic is to shoehorn information into the evidentiary foundation of the trial by pressing the defendant to admit or deny them in his answer. That the ADOC did not move the Court to strike the information, or that the Court failed to do so, does not make it any less offensive to the Federal Rules.

In the same vein, the ADOC’s answer was hardly paradigmatic of Rule 8’s spirit or letter. Its answer contained eighteen affirmative defenses, the majority of which consisted of one line of text, and therefore left opposing counsel and the District Court at a loss to understand the bases upon which most of those defenses were asserted. For example, why do Appellants lack standing to challenge the constitutionality of the State’s current execution protocol on the ground that its first drug will fail to render them insensate during their executions? Why do Appellants have unclean hands? If the claim is barred by “res judicata,” which doctrine applies—claim or issue preclusion? And the judgment of what prior lawsuit gives rise to the res judicata bar?

Accordingly, the court provided the following instructions on how the district court should proceed on remand:

Thus, in our view, in order to move forward with pleadings that comport with the spirit and letter of Rule 8, the District Court should summon the parties to a pre-trial conference for the purpose of shaping the issues for trial. There, the Court can strike from Appellants’ complaints the extraneous information we have cited and require the ADOC to explain the bases of each of its avoidance defenses. The Court’s first order of business, though, should be to address the ADOC’s sovereign immunity defense. In asserting this defense as an absolute bar to Appellants’ claim, the ADOC “certified” among other things that the defense was “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2). The Court should therefore require the ADOC to explain the basis of the defense or withdraw it.

Download Grayson v Warden (11th)

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