Case 2:12-cv-00316-WKW-CSC Document 200 Filed 11/09/16 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CAREY DALE GRAYSON,
Plaintiff,
v.
JEFFERSON S. DUNN, et al.,
Defendants.

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CASE NO. 2:12-CV-0316-WKW

and,

CHARLES LEE BURTON,
ROBERT BRYANT MELSON,
RONALD BERT SMITH,
GEOFFREY TODD WEST,
TORREY TWANE MCNABB,
Plaintiffs,
v.
JEFFERSON S. DUNN, et al.,
Defendants.

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CASE NOS. 2:16-CV-0267-WKW
2:16-CV-0268-WKW
2:16-CV-0269-WKW
2:16-CV-0270-WKW
2:16-CV-0284-WKW

 Case 2:12-cv-00316-WKW-CSC Document 200 Filed 11/09/16 Page 2 of 4

ORDER
Plaintiffs Charles Lee Burton, Robert Bryant Melson, Ronald Bert Smith,
Geoffrey Todd West, and Torrey Twane McNabb are Alabama death-row inmates
who have been committed to the custody of the Alabama Department of Corrections.
In this 42 U.S.C. § 1983 lawsuit, Plaintiffs challenge the legal injection procedures
that the State of Alabama intends to use to carry out their death sentences. Pending
is Defendants’ Motion to Dismiss. (Doc. # 160.)
Only one Plaintiff, Smith, has an execution date: December 8, 2016. Earlier
in this case (the “Midazolam Litigation”), Defendants offered Plaintiff Christopher
Brooks the opportunity to have that which he had asked for: execution with a onedrug protocol of midazolam. (Doc. # 93, at 11–12 & n.4.) Mr. Brooks refused (see
Doc. # 78) and was executed with the three-drug protocol on January 21, 2016. After
his execution, a witness in the viewing room testified that Mr. Brooks’s eye opened
after the consciousness assessment and remained open until the curtain was closed
in the viewing room. The eye episode has become a central component of the Eighth
Amendment claim in the current complaint of Mr. Smith, in the motion to dismiss,
and in the response to it—particularly in Mr. Smith’s objection to midazolam as a
sedative in the three-drug protocol.

Mr. Smith argues that midazolam will

inadequately anesthetize him, thereby causing severe pain upon the infusion of the
second and third drugs in the protocol, rocuronium bromide and potassium chloride,

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 Case 2:12-cv-00316-WKW-CSC Document 200 Filed 11/09/16 Page 3 of 4

respectively. It is undisputed that potassium chloride causes severe pain to a
conscious person.
Ultimately, the court dismissed the notion of a one-drug protocol in Mr.
Brooks’s case as “fraught with peril” arising out of a number of unanswered
concerns. (Doc. # 93, at 12 n.4.) “Because of the time constraints, and because this
case resolves on other grounds, the consent issue will be left for another day.” (Id.)
That day is here. Changes in the posture of the case dictate that the court explore
the midazolam option pled and urged by Mr. Smith and presently offered by
Defendants. First, the court in Arthur has concluded, after a trial on the merits, that
neither pentobarbital nor sodium thiopental is available for execution in Alabama.
See Arthur v. Dunn, No. 2:11-CV-438-WKW, 2016 WL 1551475, at *9–10 (M.D.
Ala. Apr. 15, 2016), appeal dismissed (July 12, 2016), aff’d sub nom. Arthur v.
Comm’r, Ala. Dep’t of Corr., No. 16-15549, 2016 WL 6500595 (11th Cir. Nov. 2,
2016). Second, the state’s “offer” is not contingent on Plaintiff executing a consent,
as was the case with Brooks. Third, a year of reflection on the issue brings it to the
forefront. Fourth, a one-drug midazolam protocol exists. (See Doc. # 93, at 12 n.3.)
Because Mr. Smith has pled it and offered the option as viable, readily
implemented and available, Defendants have accepted the offer. (Doc. # 160, at 26
n.5.) The parties all agree that (1) midazolam is available, (2) it is feasible, (3) it is
readily implementable, and (4) it is not risky with regard to unnecessary pain and
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 Case 2:12-cv-00316-WKW-CSC Document 200 Filed 11/09/16 Page 4 of 4

suffering. Mr. Smith’s complaint proposes a one-drug protocol consisting of a “large
initial dose of midazolam, followed by continuous infusion.” (Smith v. Dunn, No.
2:16cv269 (M.D. Ala. Apr. 15, 2016) (Compl., at 18–19.) Defendants offered such
a protocol in Brooks, and an unredacted one will be ordered to be submitted to the
court for in camera inspection in this case, along with a copy of the current threedrug protocol for comparison.
Accordingly, Defendants are ordered to submit to the chambers of the
undersigned for in camera inspection, on or before November 14, 2016, a current
one-drug execution protocol and a current three-drug execution protocol for in
camera inspection.
Further, Plaintiff Ronald Bert Smith is ordered to show cause in writing, on
or before November 16, 2016, at noon Central Standard Time, if any he has, why
the court should not order Defendants to execute him using the method pled in his
complaint, viz., “a large initial dose of midazolam, followed by continuous infusion.”
(Doc. # 1 at page 18 ¶ 64 in Case No. 2:16-CV-269-WKW.) Defendants shall reply
by November 18, 2016, at noon Central Standard Time.
DONE this 9th day of November, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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