Smith v. Hamm

1

KENNETH EUGENE SMITH, Plaintiff, v. JOHN Q. HAMM, Commissioner, Alabama Department of Corrections, et al., Defendants.

No. 2:22-cv-497-RAH [WO]

United States District Court, M.D. Alabama, Northern Division

July 5, 2023

MEMORANDUM OPINION AND ORDER

R. AUSTIN HUFFAKER, JR. UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Kenneth Eugene Smith is a death row inmate incarcerated at Holman Correctional Facility (Holman). He was scheduled to be executed by the Alabama Department of Corrections (ADOC) on November 17, 2022. After Smith spent multiple hours strapped to the gurney and underwent one-to-two hours of attempts to establish both a standard intravenous (IV) line and a central-line IV, the ADOC terminated the execution. According to Smith, he suffered, and continues to suffer, extreme physical and psychological pain because of this attempted execution.

Smith originally filed this lawsuit on August 17, 2022, under 42 U.S.C. § 1983.^[1] On December 6, 2022, following the failed execution attempt, Smith filed a Second Amended Complaint, asserting claims against Defendants John Q. Hamm, the Commissioner of the ADOC; Terry Raybon, the Warden at Holman; Steve Marshall, Attorney General of the State of Alabama; Michael Wood, the Deputy Warden at the G.K. Fountain Correctional Facility; and several John Doe defendants, including members of the IV team who were personally involved in Smith's execution attempt (collectively, the State or Defendants). Hamm, Raybon, and Marshall are sued in their individual and official capacities. Wood^[2] and the John Doe defendants are sued in their individual capacities only.

In the Second Amended Complaint, Smith alleges that the State violated his constitutional rights by subjecting him to an unconstitutional level of pain in attempting to execute him by lethal injection. Additionally, Smith asserts that a second attempt to execute him, generally or by lethal injection specifically, would violate the Eighth and Fourteenth Amendments to the United States Constitution. Finally, Smith claims that the State violated a prior Order of this Court when the State allegedly used intramuscular sedation during the execution attempt. He seeks declaratory and injunctive relief, as well as compensatory and punitive damages.

This matter is before the Court on the Defendants' Motion to Dismiss. Smith has filed a response in opposition, and the Defendants have filed a reply. This matter is ripe for review.

For the following reasons, the Defendants' Motion is due to be granted in part and denied in part.

II. JURISDICTION AND VENUE

The Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested, and the Court concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

III. LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8: “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept well-pled facts as true, but the court is not required to accept a plaintiff's legal conclusions. Id. at 664.

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted). The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. Conclusory allegations that fail to rise “above the speculative level” are insufficient to meet the plausibility standard. Twombly, 550 U.S. at 555. This pleading standard “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Indeed, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555). It is the plaintiff's responsibility to allege sufficient facts to support his claims. Twombly, 550 U.S. at 555.

IV. BACKGROUND

When ruling on the Defendants' Motion to Dismiss, the factual allegations in the Second Amended Complaint are accepted as true and are construed in the light most favorable to Smith. See Boyd v. Warden, Holman Corr. Facility, 856 F.3d 854, 864 (11th Cir. 2017).

Certain relevant procedural, factual, and statutory background is set forth in the Court's Memorandum Opinion and Order that previously granted the State's Motion to Dismiss the Amended Complaint, and the Court will not repeat it here. Additional procedural history and facts pertinent to resolving the pending Motion to Dismiss are set forth below.

A. Eleventh Circuit Opinion Reversing this Court's Prior Order

Smith filed his initial Complaint in this action on August 18, 2022. The State's initial Motion to Dismiss was granted on October 16, 2022, and judgment was entered for the State. However, the Court also entered an order directing the Commissioner of the ADOC and his agents “to strictly adhere to, and not deviate from, the ADOC's established lethal injection protocol during Smith's execution.” (Doc. 22 at 15.) Smith subsequently filed a Motion to Alter or Amend the Judgment under Fed.R.Civ.P. 59(e) and to Expedite Resolution of the Motion on October 19, 2022.

After this Court denied Smith's Motion to Alter or Amend the Judgment on November 9, 2022, concluding that filing an amended complaint would be futile, Smith appealed to the Eleventh Circuit. On November 17, 2022, the date of Smith's scheduled execution, the Eleventh Circuit reversed this Court's order denying Smith's motion to amend the judgment and remanded the case back to this Court, concluding that Smith's proposed Amended Complaint would not be futile because it stated a plausible Eighth Amendment method-of-execution claim and directing this Court to allow Smith to file the Amended Complaint. In reviewing Smith's proposed Amended Complaint de novo, the Eleventh Circuit held that Smith plausibly alleged that the IV team would face “extreme difficulty in accessing his veins,” and in light of the IV team's prior difficulties in establishing IV lines swiftly and successfully, Smith would “face superadded pain as the execution team attempts to gain IV access.” (Doc. 41 at 15-16.) The Eleventh Circuit also reaffirmed its holding in Price v. Commissioner, Department of Corrections, 920 F.3d 1317, 1328 (11th Cir. 2019) (per curiam), that nitrogen hypoxia is an available alternative method of execution. (Id. at 16.)

B. Motion for Stay of Execution

Smith's journey through the federal court system did not end there. On the afternoon of November 17, 2022, Smith filed an Emergency Motion to Stay Execution by Lethal Injection in this Court. This motion was denied (Doc. 50), and Smith again appealed to the Eleventh Circuit. At 7:45 p.m. on November 17, counsel for the State emailed counsel for Smith stating that the State had notified the emergency clerks at the Eleventh Circuit and the Supreme Court that the State was preparing Smith for execution. At 7:59 p.m., the Eleventh Circuit issued a stay of Smith's execution, reversing this Court's denial of Smith's stay request earlier that afternoon. The Supreme Court vacated the Eleventh Circuit's stay of execution without explanation later that evening. Smith v. Alabama, 143 S.Ct. 440 (2022).

C. The Attempted Execution

At around 4:30 p.m. that afternoon, Smith was taken to the prison infirmary where a nurse created a body chart. “No member of the execution IV team was present during this visit.” (Doc. 71 at 29.) Shortly thereafter, Smith was returned to the “death cell.” (Id.) At around 8:00 p.m., Smith was escorted from the death cell to the execution chamber. Smith was told to lie down on the gurney, and he complied. Smith was then tied down to the gurney in a “painfully tight” manner. (Id. at 32.) Over time, he felt as if his circulation was being cut off by the straps. According to the Second Amended Complaint, Smith was painfully strapped to the gurney for approximately two hours even after the Eleventh Circuit stayed his execution. Additionally, Smith says he was never informed of the Eleventh Circuit's stay. The experience of being painfully strapped to the gurney for hours-with no explanation and anticipating that he would die soon-caused Smith extreme distress.

At approximately 10:00 p.m., the IV team, consisting of three men, entered the execution chamber and began to repeatedly stab Smith's arms and hands with needles, attempting to access a vein to establish an IV line to administer the lethal injection drugs. Since he does not know the names of the men on the IV team, he refers to each one as “Green Scrubs,” “Blue Scrubs,” and “Red Scrubs,” based on the color of their scrubs. (Id. at 34-35.) Three individuals wearing suits were also in the execution chamber. Because Smith does not know these individuals' names, he refers to them as “Suits.” (Id. at 32.) Defendant Wood and several correctional officers were also present in the execution chamber. Around this same time, the Supreme Court vacated the stay of execution.

Green Scrubs placed himself on Smith's right side, and Blue Scrubs placed himself on Smith's left...