Brant v. Reddish

CHARLES G. BRANT, Plaintiff, v. BARRY REDDISH, in his official capacity as

the Warden of Florida State Prison, and

MARK S. INCH,

in his official capacity as the Secretary,

Florida Department of Corrections, Defendants.

FRED ANDERSON, JR., Plaintiff, v. BARRY REDDISH, in his official capacity as

the Warden of Florida State Prison, and MARK S. INCH,

in his official capacity as the Secretary,

Florida Department of Corrections, Defendants.

ETHERIA V. JACKSON, Plaintiff, v. BARRY REDDISH, in his official capacity as

the Warden of Florida State Prison, and

MARK S. INCH in his official capacity as the Secretary,

Florida Department of Corrections, Defendants.

Case No. 3:13-cv-412-J-34MCR

Case No. 3:14-cv-1148-J-34JBT

Case No. 3:14-cv-1149-J-34JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

September 23, 2019

ORDER

I. Status

Plaintiffs, Charles G. Brant; Fred Anderson, Jr.; and Etheria Jackson, are death row inmates of the Florida penal system who have initiated, through counsel, nearly identical actions challenging the constitutionality of Florida's lethal injection protocol pursuant to 42 U.S.C. § 1983. See Brant v. Reddish, No. 3:13-cv-412-J-34MCR (Brant); Anderson v. Reddish, No. 3:14-cv-1148-J-34JBT (Anderson II); Jackson v. Reddish, No. 3:14-cv-1149-J-34JBT (Jackson II). Brant is proceeding on a First Amended Complaint, see Brant (Doc. 102; Brant FAC), Anderson is proceeding on a Second Amended Complaint, see Anderson II (Doc. 57; Anderson SAC), and Jackson is proceeding on a Second Amended Complaint, see Jackson II (Doc. 62; Jackson SAC). (AmendedComplaints).² As Defendants, Plaintiffs sue Barry Reddish in his official capacity as the Warden of Florida State Prison, a position in which "he is responsible for all executions and for the administration of lethal injection for the Florida Department of Corrections" (FDOC), and Mark S. Inch in his official capacity as the Secretary of the FDOC "where [he] is responsible for the creation and enforcement of policies and procedures" applicable to executions by lethal injection. Amended Complaints ¶¶ 15-16. As relief, Plaintiffs seek: (1) temporary, preliminary, and permanent injunctive relief prohibiting Defendants from executing them using the current lethal injection protocol; (2) an order declaring the existing lethal injection protocol unconstitutional; and (3) an evidentiary hearing or such other relief as this Court may deem just and warranted. Id. ¶¶ 7, (a)-(c).

Defendants filed a motion to dismiss in each of the three cases. See Brant (Doc. 104; Brant Motion); Anderson II (Doc. 60; Anderson Motion); Jackson II (Doc. 65; Jackson Motion). (Motions).³ Plaintiffs filed responses in opposition to the Motions. See Brant (Doc. 107; Brant Response); Anderson II (Doc. 65; Anderson Response); Jackson II (Doc.71; Jackson Response). (Responses).⁴ On April 2, 2019, and June 13, 2019, Defendants filed notices of supplemental authority in support of their Motions, in which they advised the Court of the United States Supreme Court's decision in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), see Brant (Doc. 108); Anderson II (Doc. 66); Jackson II (Doc. 72), and the Florida Supreme Court's decision in Long v. State, 271 So. 3d 938 (Fla. 2019), see Brant (Doc. 110); Anderson II (Doc. 68); Jackson II (Doc. 74). Defendants' Motions are ripe for review.

II. Background

A. Jackson

A jury convicted Jackson of the November 1985 first degree murder of Linton Moody. Jackson v. State, 530 So. 2d 269 (1988). By a vote of seven-to-five, the jury recommended that Jackson be sentenced to death, and the trial court followed that recommendation sentencing Jackson to death. Id. at 271. The Florida Supreme Court affirmed Jackson's conviction and sentence on May 5, 1988, see id., and his death sentence became final on January 23, 1989, when the United States Supreme Court denied certiorari review. Jackson v. Florida, 488 U.S. 1050 (1989). Thereafter, on September 9, 1993, the Florida Supreme Court affirmed the denial of Jackson's initial request for state postconviction relief, Jackson v. Dugger, 633 So. 2d 1051 (Fla. 1993),and on December 15, 2003, this Court denied Jackson's initial federal petition for writ of habeas corpus, Jackson v. Crosby, Jr., No. 3:94-cv-492-J-20 (M.D. Fla. Dec. 15, 2003) (Doc. 55).⁵

B. Anderson

A jury convicted Anderson of the 1999 first degree murder of Heather Young.⁶ Anderson v. State, 863 So. 2d 169, 174 (Fla. 2003). The jury unanimously recommended that Anderson be sentenced to death, and the trial court followed that recommendation sentencing Anderson to death. Id. at 175. The Florida Supreme Court affirmed Anderson's convictions and sentence on September 25, 2003, see id. at 174, and his death sentence became final on March 22, 2004, when the United States Supreme Court denied certiorari review. Anderson v. Florida, 541 U.S. 940 (2004). On July 9, 2009, the Florida Supreme Court affirmed the denial of Anderson's initial request for state postconviction relief. Anderson v. State, 18 So. 3d 501 (Fla. 2009). Thereafter, this Court denied Anderson's initial federal habeas petition, see Anderson v. Sec'y Dep't of Corr., No. 5:09-cv-450-Oc-10KRS, 2011 WL 2784192, at *1 (M.D. Fla. July 15, 2011), and the Eleventh Circuit Court of Appeals affirmed the denial, see Anderson v. Sec'y, Dep't of Corr., 752 F.3d 881, 883 (11th Cir. 2014).

C. Brant

On May 25, 2007, Brant entered a plea of guilty to the 2004 first degree murder, sexual battery, burglary with assault or battery, and kidnapping of Sara Radfar.⁷ Brant v. State, 21 So. 3d 1276, 1277 (Fla. 2009). Brant waived his right to a penalty-phase jury, and instead the parties presented aggravating and mitigating evidence to the trial court. Id. at 1277. At the conclusion of the penalty phase, the trial court sentenced Brant to death. Id. at 1283. The Florida Supreme Court affirmed Brant's convictions and sentence on November 12, 2009. Id. at 1277. The record does not definitively reflect whether Brant filed a petition for writ of certiorari with the United States Supreme Court. However, Defendants assert that Brant's conviction and death sentence became final on February 10, 2010, see Brant Motion ¶ 25, and Brant has not contested that assertion.⁸ Brant sought state postconviction relief, and the Florida Supreme Court affirmed denial of Brant's initial state motion for postconviction relief on June 30, 2016, see Brant v. Florida, 197 So. 3d 1051 (Fla. 2016). His initial federal habeas petition is currently pending in the Tampa Division of this Court, see Brant v. Sec'y, Dep't of Corr., No. 8:16-cv-2601-T-23JSS (M.D. Fla.).⁹

D. Florida's Lethal Injection Protocols and Plaintiffs' § 1983 actions

On January 14, 2000, the state of Florida adopted lethal injection as its primarymethod of execution for carrying out a death sentence. Sims v. State, 754 So. 2d 657, 664 n.11 (Fla. 2000). While Florida identifies the method of execution by statute, the legislature delegates the responsibility of establishing the specific procedures or drugs to be used to the FDOC. See Valle v. Singer, 655 F.3d 1223, 1227 (11th Cir. 2011). Since the adoption of lethal injection, Florida has used a three-drug lethal injection protocol. See id.; Muhammad v. State, 132 So. 3d 176, 195 (Fla. 2013); Lightbourne v. McCollum, 969 So. 2d 326, 344-46 (Fla. 2007). The FDOC's first three-drug lethal injection protocol provided for intravenous administration of (1) 5 grams of sodium pentothal, (2) 100 milligrams of pancuronium bromide, and (3) 240 milliequivalents of potassium chloride. Lightbourne, 969 So. 2d at 345 (Sodium Pentothal Protocol).

On December 10, 2010, Jackson filed his first federal § 1983 method-of-execution action challenging the constitutionality of the Sodium Pentothal Protocol. See Jackson v. Singer, No. 3:10-cv-1130-J-34MCR (M.D. Fla.) (Jackson I) (Doc. 1).¹⁰ He filed anamended complaint on April 13, 2011. See Jackson I (Doc. 10). In response to the amended complaint, Defendants filed a motion to dismiss arguing that the amended complaint should be dismissed because, among other reasons: (1) Jackson failed to properly exhaust his administrative remedies; (2) Jackson's claims were barred by the applicable statute of limitations; and (3) Jackson's challenge to the Sodium Pentothal Protocol was moot because the FDOC no longer intended to use the Sodium Pentothal Protocol for future executions. See generally id. (Doc. 13). As it turns out, on June 8, 2011, a little over a week before filing the motion to dismiss, the FDOC implemented a new lethal injection protocol that provided for the administration of (1) 2.5 grams of pentobarbital sodium, (2) 200 milligrams of pancuronium bromide, and (3) 480 milliequivalents of potassium chloride. See Valle v. State, 70 So. 3d 530, 538 (Fla. 2011) (Pentobarbital Protocol). As a result, the Court permitted Jackson to file an amended § 1983 complaint on March 16, 2012, in which he challenged the constitutionality of the Pentobarbital Protocol. See Jackson I (Doc. 18). In response to this amended complaint, Defendants again filed a motion to dismiss raising many of the same arguments, including that Jackson failed to exhaust his administrative remedies before filing suit and that his claims were barred by the statute of limitations. See generally id. (Doc. 24). Then, on September 4, 2012, the FDOC changed the second drug of its lethal injection protocol by substituting vecuronium bromide for pancuronium bromide. See Pardo v. State, 108 So. 3d 558, 561 (Fla. 2012) (Pentobarbital II Protocol). The Court again permitted Jackson to file an amended complaint no later than April 17, 2013. Jackson I (Docs. 31, 34). Defendants again responded to Jackson's complaint, arguing that dismissal of the action was warranted because Jackson failed to exhaust his administrative remedies and theamended complaint was barred by the statute of limitations. See generally id. (Doc. 36).

On April 18, 2013, Anderson and...