No. 16-1407
IN THE
SUPREME COURT OF THE UNITED STATES

─────────────♦─────────────
THOMAS D. ARTHUR,
Petitioner,
v.
JEFFERSON S. DUNN, COMMISSIONER, ALABAMA
DEPARTMENT OF CORRECTIONS, ET AL.,
Respondents.

─────────────♦─────────────
On Petition for a Writ of Certiorari to the
Eleventh Circuit Court of Appeals
─────────────♦─────────────
BRIEF IN OPPOSITION

─────────────♦─────────────
Steven T. Marshall
Alabama Attorney General
Andrew L. Brasher
Alabama Solicitor General
Thomas R. Govan, Jr.*
James R. Houts
Deputy Attorneys General
Lauren A. Simpson
Assistant Attorney General
*Counsel of Record

May 25, 2017

Office of the Alabama
Attorney General
501 Washington Ave.
Montgomery, AL 36130
(334) 242-7300
tgovan@ago.state.al.us

EXECUTION SCHEDULED FOR MAY 25, 2017

 CAPITAL CASE
QUESTION PRESENTED
(Rephrased)
1. Alabama law allows an inmate who is set to be
executed to designate a certain number of
relatives or friends to witness his execution.
The Alabama Department of Corrections’ longstanding policy prohibits all visitors to
correctional facilities to possess cell phones.
Should this Court deny Arthur’s petition for
writ of certiorari on Arthur’s purported rightof-access claim seeking to allow his attorney,
whom Arthur has designated as a friend to
witness his execution, to possess a cell phone
in the viewing room, where Arthur’s claim is
procedurally barred under the statute of
limitations and where the substantive issue
involves factual matters unique to this
particular case?

 ii
TABLE OF CONTENTS
QUESTION PRESENTED .................................................. I
TABLE OF AUTHORITIES .............................................. III
INTRODUCTION ..............................................................1
STATEMENT OF THE CASE .............................................1
REASONS FOR DENYING THE PETITION.............3
I.

ARTHUR’S

PETITION FAILS TO PRESENT A

CERTWORTHY

ISSUE

OF

NATIONAL

IMPORTANCE. ........................................................3

II.

CERTIORARI
THE

SHOULD BE DENIED BECAUSE

QUESTION

PRESENTED

INVOLVES

A

FACT-BOUND ISSUE. ...............................................5

III. CERTIORARI SHOULD BE DENIED BECAUSE
ARTHUR’S CLAIM IS BARRED FROM REVIEW
BY THE STATUTE OF LIMITATIONS. .........................6
IV. CERTIORARI SHOULD BE DENIED BECAUSE
ARTHUR’S CLAIM IS MERITLESS, AS HE HAS
NO LEGAL RIGHT TO RELIEF. ..................................9
CONCLUSION ............................................................... 13

 iii
TABLE OF AUTHORITIES
Cases
Arthur v. Comm’r, Ala. Dep’t. of Corrs.,
840 F.3d 1268 (11th Cir. 2016)............................ 3, 4
Arthur v. Dunn, No. 16-0602 (Nov. 3, 2016) ............ 10
Arthur v. Dunn, No. 17-12257 (11th Cir.
May 24, 2017)......................................................... 10
Arthur v. Dunn, 137 S. Ct. 725 (2017) ........................4
California First Amendment Coalition v.
Woodford, 299 F.3d 868 (9th Cir. 2002) ................ 11
Coe v. Bell, 230 F.3d 1357 (6th Cir. 2000) ..................5
Coe v. Bell, 89 F. Supp. 2d 962 (M.D. Tenn.
2000) .........................................................................4
Garrett v. Estelle, 556 F.2d 1274 (5th Cir.
1977) ....................................................................... 11
Holden v. Minnesota, 137 U.S. 483 (1890) ............... 11
Lewis v. Casey, 518 U.S. 343 (1996) ...........................9
Rice v. Kempler, 374 F.3d 675 (8th Cir.
2004) ....................................................................... 11

 iv
Statutes
42 U.S.C. § 1983 ...................................................... 1, 7
ALA. CODE § 15-18-83 (1975) ......................... 5, 6, 7, 11
Rules
Sup. Ct. R. 10........................................................... 3, 5

 INTRODUCTION
This case is unworthy of certiorari review. The
lower courts’ dismissal of Arthur’s claim is bound up
in procedural issues involving the application of the
statute of limitations to his claim. In detailed
fashion, the Eleventh Circuit’s majority opinion set
out why Arthur’s claim was time-barred, noting in
particular that the documents attached to Arthur’s
complaint showed that his cause of action accrued
“undisputedly . . . no later than August 1, 2012.”
App. 26a, Op. at 22 (emphasis in original). Yet
Arthur waited until the day before his prior
execution date of November 3, 2016, to bring his
legal challenge, which bears all the hallmarks of
delay. Instead of addressing this procedural bar
squarely, Arthur’s petition pushes that issue to the
rear, focuses on constitutional arguments, such as
the Sixth and Fourteenth Amendments, that the
Eleventh Circuit held were not presented in his
complaint, and spends most of its time discussing a
lone district court opinion from another circuit. All
the while, Arthur cites no authority even remotely
suggesting that the right of access to courts compels
visitors to correctional facilities to have access to cell
phones. For these reasons, certiorari should be
denied.
STATEMENT OF THE CASE
This appeal arises from the United States District
Court for the Middle District of Alabama’s dismissal
of Thomas D. Arthur’s sixth 42 U.S.C. § 1983. On
November 2, 2016, the day before his seventh
execution date, Arthur filed the instant lawsuit, Doc.
1, contending that the Alabama Department of
Correction’s (ADOC’s) policy of prohibiting cell

 2
phones in correctional facilities prevented him from
having access to the courts during his execution.
Specifically, Arthur sought for one of his attorneys,
whom he designated as a friend to witness his
execution, to be able to have access to a cell phone in
the viewing room during his execution. Initially,
Arthur also sought a motion for a temporary
restraining order, which the district court denied,
finding that Arthur’s behavior “suggests an
intentional maneuver to delay and disrupt the
orderly administration of justice.” Doc. 10 at 3. After
Arthur’s previous execution warrant was stayed, the
district court ultimately dismissed Arthur’s
complaint, finding that it was facially time-barred
and failed to state a claim for which relief can be
granted. Doc. 32. Yesterday, the Eleventh Circuit
affirmed the district court’s dismissal on several
grounds, namely that Arthur’s complaint was timebarred, that he unreasonably delayed in bringing
this lawsuit in the context of his lengthy challenges
to Alabama’s execution procedures, and that it failed
to state a claim for relief. The pertinent facts of this
case are as follows:
The ADOC has implemented an administrative
regulation relating to visitor access to a correctional
institution. Doc. 5-1. The policy specifically prohibits
all visitors from possessing certain items during
visits, including “[e]lectronic equipment to include,
but not limited to, cell phones . . . .” Id. at 17. The
ban extends to the execution viewing chamber at
Holman Correctional Facility, and “[t]here are no
exceptions to this policy.” Doc. 5-4. It applies to all
visitors, including those who may be counsel for a
death-row inmate who are at the facility as a

 3
designated witness to an execution. Doc. 32 at 4. The
record indicates that this policy has been in existence
since at least August 1, 2012. Doc. 5-1 at 1.
Critically, Arthur does not allege in his complaint
that cell phones were permitted in ADOC
correctional facilities before August 2012.
Arthur has filed three § 1983 challenges to lethal
injection as the method of his execution. “For years,
Arthur challenged the use of sodium thiopental and
then pentobarbital.” Arthur v. Comm’r, Ala. Dep’t. of
Corrs., 840 F.3d 1268, 1272 (11th Cir. 2016). His
most recent and most protracted § 1983 case
involved a challenge to the ADOC’s current
midazolam protocol. Id. This lawsuit lasted five
years, from 2011 to 2016, and involved “lengthy
discovery.” Id. From 2011-2014, Arthur challenged
the use of pentobarbital, but when pentobarbital
became unavailable the substituted midazolam for
pentobarbital, Arthur amended his complaint to
challenge the use of midazolam. Id. at 1276. Notably,
throughout this extensive litigation, Arthur failed to
raise any claim concerning the ADOC’s policy
prohibiting cell phones.
REASONS FOR DENYING THE PETITION
I. ARTHUR’S

PETITION

FAILS

TO

PRESENT

A

CERTWORTHY ISSUE OF NATIONAL IMPORTANCE.

A petition for writ of certiorari is normally
granted only for “compelling reasons” involving
issues of “an important question of Federal Law.”
Sup. Ct. R. 10. Arthur has failed to meet this
standard. As the Eleventh Circuit noted, Arthur’s
case presents “only a narrow issue,” namely whether

 4
the Alabama Department of Correction’s (ADOC’s)
prohibition of cellphones as applied to Arthur’s May
25, 2017 execution and as applied to his friendwitness in a viewing room, violates his First
Amendment right of access to courts. Op. at 19-20.
The court explicitly noted that Arthur’s case did not
present larger constitutional challenges under the
Sixth Amendment or Fourteenth Amendment, and
thus, these issues were not addressed by the courts
below. Op. at 5, 19.
Indeed, this case likely will be limited to Arthur,
alone, as he failed to point to any other examples
below of Alabama inmates raising similar claims in
other lawsuits. Moreover, this claim is not worthy of
certiorari review because resolving this claim will
not impact whether Arthur will be executed.
Whether or not Arthur has a right to have one of his
friends in a viewing room possess a cell phone will
not cause his execution to be stayed, although it
would cause a significant burden to the ADOC to
implement and monitor at this late hour. And, as
noted by the lower courts, it would be difficult to
frame the judiciary’s role vis-à-vis access to courts
once Arthur’s execution begins. Finally, the
resolution of this claim has no impact on the fact
that Arthur has failed, on multiple occasions, to
establish that Alabama’s three-drug execution
protocol violates the Eighth Amendment. See Arthur,
840 F.3d at 1312, cert denied, Arthur v. Dunn, 137 S.
Ct. 725 (2017). Finally, Arthur has failed to identify
any significant split of authority in the lower courts,
other than citing to a district court opinion that was
later vacated by the Sixth Circuit. See Coe v. Bell, 89
F. Supp. 2d 962, 967 (M.D. Tenn. 2000), vacated by

 5
Coe v. Bell, 230 F.3d 1357 (6th Cir. 2000). For these
reasons alone, certiorari should be denied.
II. CERTIORARI

SHOULD BE DENIED BECAUSE THE

QUESTION PRESENTED INVOLVES A FACT-BOUND
ISSUE.

This Court “rarely” grants certiorari “when the
asserted error consists of erroneous factual
findings[.]” Sup. Ct. R. 10. If this Court were inclined
to resolve the question presented, it would be forced
to delve into numerous factual matters that fall
outside this Court’s normal certiorari principles. In
particular, much of the Eleventh Circuit’s opinion
was spent analyzing specific regulations from the
ADOC concerning its policies on visitors, operational
guidelines, application forms, and correspondence
between the parties. Op. at 12-15, 23-25. Analyzing
these factual issues will serve no other purpose
outside of this particular case.
For example, the Eleventh Circuit’s decision is
predicated, in part, on the fact that Arthur’s lawyers
never submitted a form 303-E, a form that notes
electronic devices are not permitted during “legal
visits,” (as opposed to the general prohibition on
electronic devices for all visitors) but providing an
opportunity for counsel to state why such devices are
necessary in a particular case. Op. at 23-24
(referencing Doc. 5-1 at 23). Aside from the fact that
section 15-18-83 does not provide for counsel to
attend an execution in their legal capacity, the lower
court noted that this precluded any claim that
Arthur’s counsel was seeking a “legal visit” requiring
the use of a cell phone. App. at 24. The lower court
also noted that the “legal visit” rationale would be

 6
inappropriate, because Arthur has not established
the existence of an on-going matter requiring
representation. Id. The lower court also noted that
Arthur has previously been scheduled for execution
on April 27, 2001, September 27, 2007, December 6,
2007, July 31, 2008, March 29, 2012, February 19,
2015, and November 3, 2016, App. at 2 n.1, yet
Arthur has never attacked Alabama’s statute that
does not permit counsel to attend an execution, other
than as a friend-witness, nor did Arthur attack AR
303 during the February 19, 2015, execution
litigation. Additionally, for obvious reasons, Arthur’s
counsel will not be in the execution chamber
conducting a client meeting once the execution
procedures begin. This case, then, is limited to the
narrow issue of whether a civilian witness’s ability to
possess a contraband cellular phone in a correctional
facility blocks an inmate’s access to courts during an
on-going execution. For this reason, certiorari should
be denied.
III. CERTIORARI SHOULD BE DENIED BECAUSE
ARTHUR’S CLAIM IS BARRED FROM REVIEW BY
THE STATUTE OF LIMITATIONS.
Alabama law has never permitted condemned
inmates to have the presence of their counsel, in a
legal capacity, present at the execution of sentence.
As noted by the Eleventh Circuit, Alabama has
strictly controlled who may be present at a judicially
ordered execution since 1975 through section 15-1883 of the Code of Alabama of 1975. While attorneys
are not enumerated as authorized participants in an
execution a condemned inmate may choose up to six
individuals – “relatives or friends of the condemned

 7
person” – to witness the proceeding. ALA. CODE § 1518-83 (1975). There is no controversy as to the fact
that Arthur has never challenged this statute. See
Op. at 5 (“In this appeal, Arthur does not challenge
the constitutionality of Alabama’s statute in § 15-1883.”) (emphasis in original).
Arthur has elected to designate his lead counsel
as a witness for his execution under this statute.
This counsel has served Arthur since 2002. Op. at 22.
Based on the documents attached to Arthur’s
complaint, since at least August 1, 2012, the ADOC
has regulated visitor access to its facilities by way of
AR 303, which prohibits visitors from introducing
cellular phones and other electronic devices into
correctional facilities. See Doc. 5-1. This provision
applies to attorneys visiting correctional facilities for
legal visits. Doc. 32 at 5.
The parties agree that a two-year statute of
limitations applies to Arthur’s 42 U.S.C. § 1983
access-to-courts claim. It is also undisputed that
Arthur’s execution has been ordered on seven prior
occasions. Accordingly, Arthur knew, or should have
known, that the effect of AR 303 as applied to him,
would prevent one of his friends who would be
witnessing his execution in the viewing room from
possessing a cell phone. Notably, there is no
allegation in Arthur’s complaint that he was
unaware of this policy. Nor could he make such an
argument. For as the Eleventh Circuit noted, in his
complaint, Arthur’s counsel “admitted that she knew
that the ADOC’s rules prohibited cell phones in the
viewing room.” Op. at 13 (“While I understand that
the Alabama Department of Corrections (“ADOC”)

 8
has a general policy against possession of cell phones
within its facilities . . . “). Under these facts, the
limitations period for Arthur’s access-to-courts claim
lapsed, at the latest, on August 2, 2014.
Arthur was challenging Alabama’s use of the drug
pentobarbital as part of its three-drug protocol when
Alabama was forced to switch to midazolam in
September 2014 (as a result of pentobarbital
becoming unavailable to the ADOC). Alabama’s
change from pentobarbital to midazolam did not
alter Arthur’s claim that Alabama’s three-drug
protocol presented Eighth Amendment risks because
of the second and third drugs administered during a
lethal injection, it did not amend AR 303, and it did
not alter Alabama’s statute prohibiting anyone other
than “relatives of friends of the condemned person”
from attending the execution. For this reason, there
is no rational basis upon which to conclude that the
limitations period for Arthur’s access to courts claim
did not begin until Alabama’s adoption of its current
protocol in September 2014. But, even if this
unreasonable position were adopted, however,
Arthur’s claim was not presented until November
2016, outside of the relevant two-year limitations
period.
Certiorari is not warranted in this case because
Arthur’s access-to-court’s claim cannot be reached
due to the statute of limitations. Accordingly,
Arthur’s petition should be denied.

 9
IV. CERTIORARI SHOULD BE DENIED BECAUSE
ARTHUR’S CLAIM IS MERITLESS, AS HE HAS NO
LEGAL RIGHT TO RELIEF.
An access to courts claim cannot stand on an
abstract theory; instead, it must be based on a
showing of actual injury. Lewis v. Casey, 518 U.S.
343, 351-52 (1996). This Court has interpreted this
requirement to mean that an inmate alleging an
impairment of his access-to-courts to show actual
injury or imminent harm. Id. at 349. As the Eleventh
Circuit explained in detail, Arthur’s complaint does
not meet this legal requirement.
Below, Arthur was required to establish that
imminent official action would interfere with his
presentation of a claim to the courts. See Lewis, 518
U.S. at 349. Assuming arguendo that ADOC’s cell
phone restrictions constitute sufficient official action
under Lewis, the question remains as to what claim
Arthur must present in the hour before his execution
when his counsel must surrender her phone and
enter into Holman Correctional Facility.
Arthur’s claim is that something could possibly
go wrong during his execution. This type of claim is
rank speculation at its worse. The federal courts just
resolved Arthur’s six-year-long lawsuit pertaining to
his claim that Alabama’s lethal injection protocol
would cause his execution to be unconstitutional.
Arthur lost. Arthur’s position, that Alabama’s
regulations designed to prevent tools useful for
communication with the outside world (i.e., useful for
escape) from its correctional facilities, as well as its
desire to prevent distracting devices from the solemn
occasion of a judicially-ordered execution, might

 10
interfere with an opportunity to further pursue
Eighth Amendment claims against ADOC (that
previously have been rejected by federal courts) flies
in the face of both the “law of the case” doctrine and
res judicata. Arthur cannot rely on his unsuccessful
Eighth and Fourteenth Amendment lawsuits to
establish the existence of a “likely” claim. To the
contrary, Arthur’s failure to prevail in his previous §
1983 actions renders the likelihood of any claim
remote and speculative.
Arthur’s latest, ever-changing allegation – saying
what is needed at any particular time without regard
to the candor due a tribunal – provides an example
as to why he cannot show a likely injury. Before this
Court last year, during the certiorari proceedings at
the conclusion of his previous § 1983 Eighth
Amendment litigation, Arthur presented argument
to this Court concerning the execution of Christopher
Brooks. Petition for Writ of Certiorari at 29, Arthur
v. Dunn, No. 16-0602 (Nov. 3, 2016). Arthur alleged
that Brooks opened an eye during his execution,
which he alleged would be impossible unless Brooks
was inadequately anesthetized. Id. But in his reply
brief in the Eleventh Circuit – reviewing the
dismissal of his most recent § 1983 Eighth
Amendment claim – Arthur argued that prior to
Smith’s execution, there “was no direct evidence
showing ADOC’s knowledge that its protocol was
ineffective” because “the January 23, 2016 execution
of Christopher Brooks” “was materially different
from the Smith execution.” Reply Brief at 11, Arthur
v. Dunn, No. 17-12257 (11th Cir. May 24, 2017). In
other words, Arthur now claims that no evidence
prior to the Smith execution supports a successful

 11
Eighth Amendment claim. Arthur’s access-to-courts
claim, then, must be based on his speculative
interpretation of a single execution.
Finally, the Eleventh Circuit’s observation that
Arthur has never challenged section 15-18-83 is
especially fatal to Arthur’s claim. A cellular
telephone is only a device for transmitting
information. Without a lawyer to operate such a
device, a cellular telephone cannot offer access to
courts any more than a refrigerator or other
inanimate object could. Op. at 29 (“The cell phone is
‘not [an] end[] in [itself]”). Yet, the section of the
state statute under which Arthur’s counsel will
attend his execution establishes the appropriate
witnesses for an execution, something that addresses
the “severely limited” First Amendment right the
public possesses to have representatives view
executions. See, e.g., Rice v. Kempler, 374 F.3d 675,
678-81 (8th Cir. 2004); California First Amendment
Coalition v. Woodford, 299 F.3d 868, 873-75 (9th Cir.
2002); Garrett v. Estelle, 556 F.2d 1274 (5th Cir.
1977). Cf. Holden v. Minnesota, 137 U.S. 483, 491
(1890). Because Arthur’s right to designate a witness
to his execution is predicated on grounds outside of
the Sixth Amendment, his failure to challenge
Alabama’s failure to include counsel on the list of
authorized attendees precludes his claim.
Under the provision Arthur’s counsel will attend
his execution, she is no different than a member of
the media or a victim’s representative. Arthur’s
counsel has no more right to disrupt the execution of
a judicially-ordered execution than a member of the
media would have to call his editor and begin making

 12
a report while the proceeding was on-going. A cell
phone without a lawyer acting in a legal capacity
does not interfere with the ability to access a court.
Yet, Arthur could have decided to invite family
members and others to attend his execution in lieu of
his counsel. Because Arthur’s counsel is not entitled
to appear at his execution in an official capacity as
his “counsel-of-record,” the regulations designed to
treat her as any other witness to an execution do not
create a controversy in this case. To be clear, in order
to allege an access to courts claim Arthur would have
had to challenge the failure of Alabama law to
provide for the appearance of an attorney, in an
official capacity, under its witness statute that has
been in place since 1975.
The Eleventh Circuit’s decision affirming the
district court plainly sets forth why Arthur’s
complaint is insufficient to state a valid access-tocourts claim. He cannot show imminent harm and
his counsel will appear as his “friend” rather than as
his attorney. Certiorari is not warranted under these
circumstances.

 13
CONCLUSION
Wherefore,
for
the
foregoing
reasons,
Respondents respectfully request that this Court
deny Arthur’s petition for writ of certiorari.
Respectfully submitted,
Steven T. Marshall
Alabama Attorney General
Andrew L. Brasher
Alabama Solicitor General
s/ Thomas R Govan, Jr.
Thomas R. Govan, Jr.*
James R. Houts
Alabama Deputy Attorneys
General
Lauren A. Simpson
Alabama Assistant Attorney
General
Attorney of Record*