No. _______

In the Supreme Court of the United States
THOMAS D. ARTHUR, PETITIONER,
v.
JEFFERSON S. DUNN, COMMISSIONER,
ALABAMA DEPARTMENT OF
CORRECTIONS, ET AL., RESPONDENTS
CAPITAL CASE
EXECUTION OF THOMAS D. ARTHUR
SCHEDULED FOR 6:00 P.M. (CST)
THURSDAY, MAY 25, 2017
PETITION FOR A WRIT OF CERTIORARI

SUHANA S. HAN
Counsel of Record
ADAM R. BREBNER
KATE L. DONIGER
AKASH M. TOPRANI
125 Broad Street
New York, NY 10004
(212) 558-4000
hans@sullcrom.com
Counsel for Petitioner Thomas D. Arthur

 CAPITAL CASE
QUESTIONS PRESENTED
1. Whether the right of prisoners to have meaningful access to the courts under the First,
Eighth and Fourteenth Amendments requires
a department of corrections to allow counsel
access to a telephone during the execution process, as was held by courts within the Sixth and
Eighth Circuits.
2. Whether the statute of limitations for a death
row inmate’s action seeking access to the
courts under 42 U.S.C. § 1983 starts when a an
inmate suffers injury to his right of access.

(I)

 PARTIES TO THE PROCEEDINGS
Petitioner is Thomas D. Arthur, a seventy-five
year old inmate sentenced to death, and currently incarcerated at Holman Correctional Facility in Atmore, Alabama.
Respondents are Jefferson S. Dunn, Commissioner
of the Alabama Department of Corrections (the
“ADOC”); Anne Adams Hill, General Counsel of the
Alabama Department of Corrections; and Cynthia
Stewart, Warden of Holman Correctional Facility.

(II)

 III
TABLE OF CONTENTS
Page
Questions Presented ............................................................. I
Parties to the Proceedings ................................................. II
Introduction .......................................................................... 1
Opinions below ..................................................................... 3
Jurisdiction ........................................................................... 3
Constitutional Provisions, Statute and Regulation
Involved ......................................................................... 3
Statement of the Case ......................................................... 5
A. Alabama’s Execution Protocol ................................. 5
B. Mr. Arthur’s Request for his Counsel’s
Access to a Phone ...................................................... 6
C. Proceedings Below .................................................... 8
Reasons for Granting the Petition ..................................... 9
I.

The Court of Appeals’ Decision Is Contrary to
the Precedent of this Court and Conflicts with
Rulings from Courts in the Sixth and Eighth
Circuits. ......................................................................... 9
A. Courts in the Sixth and Eighth Circuits
Correctly Have Held That the Right of
Access to the Courts Includes the Right for a
Condemned Inmate’s Counsel to Access a
Telephone During the Execution Process. ........... 10
B. The Eleventh Circuit’s Decision Is in
Conflict with Precedent From This Court
and the Sixth and Eighth Circuits. ........................ 12

 IV
II. The Eleventh Circuit’S DEcision Improperly
Applied the Statute of Limitations for Eighth
Amendment Method of Execution Challenges To
a First Amendment Right of Access Claim. ............ 17
Conclusion ........................................................................... 21
Appendix A: Court of Appeals Decision
(May 24, 2017) ............................................................. 1a
Appendix B: District Court Decision
(April 12, 2017) ...........................................................68a

(IV)

 V
TABLE OF AUTHORITIES
Page(s)
Cases:
Arthur v. Comm’r, Alabama Dep’t of Corr.,
840 F.3d 1268 (11th Cir. 2016) .................................. 5
Arthur v. Dunn,
137 S. Ct. 14 (2016) .................................................... 9
Baker v. Sanford,
484 Fed. App’x 291 (11th Cir. 2012)................. 17, 19
Bounds v. Smith,
430 U.S. 817 (1977) .................................................. 10
Chappell v. Rich,
340 F.3d 1279 (11th Cir. 2003) ................................ 17
Cooey v. Strickland,
479 F.3d 412 (6th Cir. 2007) .................................... 18
Ex parte Hull,
312 U.S. 546 (1941) .................................................. 10
Gissendaner v. Comm’r Ga. Dep’t of Corr.,
779 F.3d 1275 (11th Cir.)......................................... 18
Glossip v. Gross,
135 S. Ct. 2726 (2015) ................................................ 5
Grayson v. Dunn,
No. 12 Civ. 316 (M.D. Ala.) ..................................... 16
Grayson v. Warden,
2016 WL 7118393 (11th Cir. 2016) ......................... 12
Johnson v. Avery,
393 U.S. 483 (1969) .................................................. 10
Lewis v. Casey,
518 U.S. 343 (1996) ............................................ 12, 13
McGehee v. Hutchinson,
2017 WL 1381663
(E.D. Ark. Apr. 15, 2017) ............................... passim
McGehee v. Kelley,
No. 17 Civ. 179, (E.D. Ark.) .................................... 16

 VI
Cases—continued:
Turner v. Safley,
482 U.S. 78 (1987) .................................................... 15
Wallace v. Kato,
549 U.S. 384 (2007) .................................................. 17
Wellons v. Comm’r, Ga. Dep’t of Corr.,
754 F.3d 1260 (11th Cir. 2014) ................................ 18
Wolff v. McDonnell,
418 U.S. 539 (1974) .................................................. 10
Constitutional Provisions:
U.S. Const. amend. I ........................................... passim
U.S. Const. amend. VI.................................................... 3
U.S. Const. amend. VIII ..................................... passim
U.S. Const. amend. XIV ................................................. 3
Statutes:
28 U.S.C. Section § 1257(a) ............................................ 3
Ala. Code § 6-2-38(l) ..................................................... 18
Ala. Code § 15-18-83 ................................................... 4, 8
Rules:
11th Cir. Local R. 30-1 ................................................... 5
Regulation:
Ala. Dep’t of Corr. Reg. 303 .................................... 4, 19

 PETITION FOR A WRIT OF CERTIORARI
——————
INTRODUCTION
This action is about whether a death row inmate’s
constitutional right to access the court stops at the
execution chamber door. Petitioner Thomas D. Arthur, a 75-year-old death row inmate who is scheduled
to be executed by the State of Alabama on May 25,
2017, asked the Alabama Department of Corrections
if his attorney, one of his designated execution witnesses, could have access to a telephone during his
execution for the sole purpose of communication with
the courts or co-counsel. Alabama could easily have
granted this request without any burden to the State,
but Alabama refused.
As the dissent in the court of appeals observed:
The Constitution and common sense
usually dictate the same result. This
case is no exception. An important constitutional right is at stake, and Alabama can easily honor that right; all
Alabama needs to do is afford Thomas
Arthur access to a telephone. Both the
Constitution and common sense say Alabama should do just that. . . .
Deprived of access to a telephone, Arthur will be unable to seek legal redress if, during the execution process,

(1)

 2
Alabama begins to subject him to cruel
and unusual punishment.
Arthur’s
right of access to the courts will be
thwarted.”
Pet. App’x 48a (Wilson, J., dissenting).
There is no dispute that prisoners like Mr. Arthur
have a right under the First and Fourteenth Amendments to access the courts. As courts in the Sixth and
Eighth Circuits have held, that right does not cease to
exist just prior to an inmate’s execution—to the contrary, that period is critical to ensure that an inmate’s
rights are being respected. Nevertheless, Alabama
has refused to acknowledge this right, and has exercised its discretionary policy to deny Mr. Arthur’s request. By unreasonably refusing Mr. Arthur’s request, Alabama has foreclosed any means by which
Mr. Arthur (through counsel) could, if necessary,
communicate with the courts during the execution,
rendering Mr. Arthur’s right to access the courts
meaningless during that critical time. While assuming that the right to access the courts continues during the execution process, the majority opinion of the
Eleventh Circuit eviscerates that right by requiring
an inmate (i) to demonstrate the existence of an injury
before the execution process starts and (ii) to bring a
right of access claim at the moment a state adopts a
policy that may burden that right, irrespective of
when state officials deny access.
This Court should grant certiorari to confirm, as
courts in the Sixth and Eighth Circuits have, that a
state may not unilaterally and arbitrarily select when
a condemned prisoner shall cease to have recourse
under the Constitution.

 3
OPINIONS BELOW
The decision of the court of appeals (Pet. App’x 1a67a) is unreported. The decision of the district court
(Pet. App’x 68a-86a) also is unreported.
JURISDICTION
The Eleventh Circuit’s decision on Mr. Arthur’s
appeal was entered on May 24, 2017 at 7:36 P.M.
Eastern Time. This petition was timely filed the next
day. The Court has jurisdiction pursuant to 28 U.S.C.
Section 1257(a).
CONSTITUTIONAL PROVISIONS, STATUTE
AND REGULATION INVOLVED
The First Amendment to the United States Constitution provides in pertinent part: “Congress shall
make no law . . . abridging . . . the right of the people .
. . to petition the Government for a redress of grievances.” U.S. Const. amend. I.
The Sixth Amendment to the United States Constitution provides in pertinent part: “In all criminal
prosecutions, the accused shall enjoy the right . . . to
have the assistance of counsel for his defense.” U.S.
Const. amend. VI.
The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend.
VIII.
The Fourteenth Amendment to the United States
Constitution provides in pertinent part: “No state
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,

 4
liberty, or property, without due process of law. . . .”
U.S. Const. amend. XIV.
Alabama Code Section 15-18-83 provides:
(a) The following persons may be present
at an execution and none other: (1) The executioner and any persons necessary to assist
in conducting the execution[;] (2) The Commissioner of Corrections or his or her representative[;] (3) Two physicians, including the
prison physician[;] (4) The spiritual advisor
of the condemned[;] (5) The chaplain of
Holman Prison[;] (6) Such newspaper reporters as may be admitted by the warden[;]
(7) Any of the relatives or friends of the
condemned person that he or she may request, not exceeding six in number[;] (8) The
immediate family of the victim, over the age
of 19, not exceeding eight in number and
apportioned equally among the victim’s immediate family members. If there are fewer
than six total immediate family members of
the deceased victim, additional immediate
family members of a victim, for whose death
the inmate is not sentenced to death[; and]
(b) No convict shall be permitted by the
prison authorities to witness the execution.
Alabama Department of Corrections Administrative Regulation Number 303 provides in relevant part:
“Attorney/Legal Visit Orientation Form . . . Prohibited Items: . . . Electronic equipment to include, but
not be limited to, cell phones . . . unless prior approval

 5
of the Warden and ADOC General Counsel.”
App’x Tab 5-1 at 24. 1

R.E.

STATEMENT OF THE CASE
A. Alabama’s Execution Protocol
To execute condemned prisoners, the ADOC currently employs a lethal injection protocol involving
three successive drugs. See Arthur v. Comm’r, Alabama Dep’t of Corr., 840 F.3d 1268, 1274 (11th Cir.
2016). The first drug in this protocol, midazolam hydrochloride, is intended to “help ensure that an inmate remains insensate to any pain caused by the administration of” the second and third drugs (a paralytic and heart-stopping agent, respectively). Glossip v.
Gross, 135 S. Ct. 2726, 2735 (2015).
On December 8, 2016, Alabama used this protocol
on Ronald Bert Smith, Jr. After Smith was administered midazolam, which was supposed to render him
unconscious and insensate, he was anything but. In
addition to “regular asthmatic-sounding barking
coughs every ten seconds or so,” Smith “lifted his
head and looked around, moved his arms, clenched his
left hand, and moved his lips in what appeared to be
an attempt to say something.” R.E. App’x Tab 20-1
¶ 7. Smith’s “eyes never closed, and he moved and
coughed regularly” for approximately “fifteen
minutes.” Id. Smith also moved during tests meant
to assess his consciousness, including after a second
1

The appellate record excerpts are cited as “R.E. App’x,”
followed by the tab number within the Appellant’s Appendix and
page or paragraph number(s), where applicable, within the document. Pursuant to Eleventh Circuit Local Rule 30-1, the tab numbers within the Appellant’s Appendix correspond to the district
court docket numbers.

 6
assessment. Id.; see also Kim Chandler, Alabama
Inmate Coughs, Heaves 13 Minutes Into Execution,
Associated
Press
(Dec.
9,
2016),
https://apnews.com/4c0bd6e7c9a34448aa0af8d30e58e1
d5/alabama-scheduled-execute-man-clerks-1994killing (noting that Smith “moved his arm” after a
first consciousness assessment and “slightly raised
his right arm again after the second consciousness
test”). After the first consciousness assessment,
Smith “reacted to the arm pinch by moving his arm
toward his body (away from the source of pain).” R.E.
App’x Tab 20-1 ¶ 8. After the second consciousness
assessment, Smith “moved his right arm” and, although an ADOC officer attempted to push Smith’s
eyelid closed, “it opened as soon as he removed his
finger.” Id. ¶¶ 10-11.
After Smith was injected with midazolam, and was
clearly conscious, about fifteen minutes passed by before the remaining drugs in the protocol were administered. Id. ¶ 7. Nevertheless, his counsel were powerless to do anything—having been barred from having access to a phone, they had no way to access the
courts.
B. Mr. Arthur’s Request for his Counsel’s Access to a Phone
Mr. Arthur was previously scheduled to be executed on November 3, 2016, prior to the Smith execution.
In advance of that date, Mr. Arthur designated his
counsel to serve as a witness to the execution. On October 31, 2016, Mr. Arthur’s counsel submitted a written request to Respondent Dunn to be permitted access to a cellular phone or, in the alternative, a landline, during the execution. R.E. App’x Tab 5-2. In
that request, counsel for Mr. Arthur explained that

 7
“[a]s reported by the media, I understand that other
individuals, such as members of the media, are permitted to have cell phones in the viewing chamber.”
Id. at 1. Counsel stipulated that usage of any cellular
phone would be limited to contacting other members
of Mr. Arthur’s legal team or the court and offered to
accept other restrictions to allay any reasonable security concerns. Id. at 1-2.2
The same day as Mr. Arthur’s request, the State of
Alabama’s Office of the Attorney General responded
that counsel could be present at Mr. Arthur’s execution only in a “non-legal capacity” and stated that “the
State will not accept [counsel’s] presence as being in a
legal capacity.” R.E. App’x Tab 5-3.
On November 1, 2016, the ADOC further responded to deny counsel for Mr. Arthur’s October 31, 2016
request, referencing in its response an ADOC policy
“prohibiting the use of cellular telephones at any of its
facilities by anyone, other than authorized personnel.”
R.E. App’x Tab 5-4 (referencing R.E. App’x Tab 5-1
at 23 (Ala. Dep’t of Corr. Reg. 303 (Aug. 1, 2012)).
ADOC’s November 1, 2016 letter again stated that
Respondents would recognize counsel’s presence at
Mr. Arthur’s execution “only in a non-legal capacity.”
R.E. App’x Tab 5-4 (citing Ala. Code § 15-18-83).
ADOC’s response did not address counsel’s alterna2

Among other things, counsel for Mr. Arthur agreed to: (i)
use any telephone access only to contact other members of Mr. Arthur’s legal team or the courts; (ii) purchase a phone at counsel’s
own expense; (iii) make the phone available for ADOC inspection
before and after the execution; (iv) permit the phone to be held by
an ADOC officer during the execution; and (v) destroy the phone in
the presence of ADOC personnel once the execution is complete.
App’x Tab 5-2 at 1-2.

 8
tive request to be provided with access to a prison
landline.
C. Proceedings Below
Mr. Arthur filed this case the next day, on November 2, 2016. Also on November 2, 2016, Mr. Arthur
filed an emergency motion for a Temporary Restraining Order and/or Preliminary Injunction, seeking to
enjoin the ADOC from barring counsel’s access to a
phone during the execution. R.E. App’x Tab 3. In
support of that motion, Mr. Arthur noted that all he
sought was access to a cellular phone or landline of
the State’s choosing and that other states like Arizona
and Ohio already provide attorney witnesses with access to telephones during executions. Id. at 10-12;
R.E. App’x Tab 4 at 2; see also R.E. App’x Tab 1 ¶ 34. 3
The district court denied Mr. Arthur’s motion for a
temporary restraining order or preliminary injunction. R.E. App’x Tab 3.
On November 3, 2016, this Court granted Mr. Arthur’s application for a stay of execution pending the
disposition of his petition for a writ of certiorari in a
separate action concerning the State’s method of execution. See Arthur v. Dunn, 137 S. Ct. 14 (2016).
Following entry of the stay of execution, on November 23, 2016, Respondents filed a motion to dismiss
Mr. Arthur’s complaint in this action, and briefing on
that motion was completed on January 3, 2017. R.E.
3

The majority opinion of the Court of Appeals suggests that
Mr. Arthur’s request for a landline could require the installation of
a landline in the viewing chamber. Pet. App’x 3a n.3 That is incorrect: what Mr. Arthur has sought is access to a telephone for counsel in the viewing chamber, which could include access to “a landline
[that] already exists in the room adjacent to the viewing chamber.”
R.E. App’x Tab 20 at 11.

 9
App’x Tabs 18, 20, 23. Four months later, while the
State’s motion to dismiss remained pending, the Alabama Supreme Court set Mr. Arthur’s execution date
for May 25, 2017. R.E. App’x Tab 31-1.
On April 12, 2017, the district court issued its
Memorandum Opinion and Order dismissing Mr. Arthur’s complaint as time-barred under the statute of
limitations for method-of-execution claims and for
failure to state a claim. Pet. App’x 68a-86a. Mr. Arthur timely appealed to the Eleventh Circuit Court of
Appeals on April 26, 2017. Briefing was completed in
the Eleventh Circuit on May 18, 2017, and the Eleventh Circuit issued its opinion affirming the judgment
of the district court on May 24, 2017 that Mr. Arthur’s
complaint is untimely and fails to state a claim.
REASONS FOR GRANTING THE PETITION
I. THE COURT OF APPEALS’ DECISION IS
CONTRARY TO THE PRECEDENT OF THIS
COURT AND CONFLICTS WITH RULINGS
FROM COURTS IN THE SIXTH AND EIGHTH
CIRCUITS.
The Eleventh Circuit’s decision foreclosing the request of counsel for Mr. Arthur to access a telephone
during his execution is contrary to precedent from
this Court and courts in the Sixth and Eighth Circuits—as well as the practice of states around the
country—and it is unsupported by any legitimate penological justification. This restriction on prisoners’
fundamental constitutional rights is of particular concern given that it arises in the lethal injection context,
in which serious concerns have been raised about
Eighth Amendment violations.

 10
A. Courts in the Sixth and Eighth Circuits Correctly Have Held That the Right of Access to
the Courts Includes the Right for a Condemned Inmate’s Counsel to Access a Telephone During the Execution Process.
“It is now established beyond doubt that prisoners
have a constitutional right of access to the courts”
that is grounded in the First Amendment and applicable in federal civil-rights actions. Bounds v. Smith,
430 U.S. 817, 821-22 (1977) (citing Ex parte Hull, 312
U.S. 546 (1941)); Wolff v. McDonnell, 418 U.S. 539,
579 (1974) (“The recognition by this Court that prisoners have certain constitutional rights which can be
protected by civil rights actions would be diluted if
inmates . . . were unable to articulate their complaints
to the courts.”).
As such, courts within the Sixth and Eighth Circuits have held that the need for counsel to have access to a telephone throughout the execution process
follows from long-standing precedent upholding the
rights of prisoners to have meaningful access to the
courts.
See McGehee v. Hutchinson, 2017 WL
1381663, at *28 (E.D. Ark. Apr. 15, 2017) (citing, inter
alia, Johnson v. Avery, 393 U.S. 483, 484, 489-90
(1969); Ex parte Hull, 312 U.S. at 547-49). In light of
this, the relevant inquiry in right-to-access cases is
whether the prisoner has been afforded “‘a reasonably
adequate opportunity to present claimed violations to
fundamental constitutional rights to the courts.’”
McGehee, 2017 WL 1381663, at *28 (quoting Lewis v.
Casey, 518 U.S. 343, 351 (1996)).
As recently held by a district court in the Eighth
Circuit when confronted with analogous claims by inmates whose counsel were denied telephone access in
advance of scheduled executions,

 11
‘[p]laintiff[s] ha[ve] an Eighth Amendment
right not to be subjected to cruel and unusual
punishment, and substantial case law supports
the contention that this right attaches until [a
plaintiff’s] successful execution. Plaintiff[s’]
right to meaningful access to the courts to assert that right requires that counsel have some
access to the prisoner during the last hour before the execution and be permitted to witness
the execution and have access to a telephone
until execution has successfully been carried
out.’
McGehee, 2017 WL 1381663, at *29 (quoting Coe v.
Bell, 89 F. Supp. 2d 962, 966 (M.D. Tenn. 2000), vacated on other grounds by Coe v. Bell, 230 F.3d 1357
(6th Cir. 2000) (vacated as moot because plaintiff had
been executed) (emphasis added)). Recognizing that
executions are an “unusual context” which “present
an inherent risk of actual injury to the timely and
meaningful presentation of non-frivolous claims to a
court,” the McGehee court held that, in denying telephone access to inmates’ counsel during executions,
“the imminent injury is the lack of meaningful access
to a court from which they might seek redress from a
prospective Eighth Amendment violation occasioned
during the executions,” not the Eighth Amendment
violation itself. Id. at *29 (emphasis added).
In short, in the face of a potential constitutional
deprivation, “[i]t is for the courts to remedy past or
imminent official interference with individual inmates’
presentation of claims to the courts.” Lewis, 518 U.S.
at 349.

 12
B. The Eleventh Circuit’s Decision Is in Conflict
with Precedent From This Court and the
Sixth and Eighth Circuits.
Despite the well-recognized right to access the
courts, the Eleventh Circuit has affirmed the denial of
requests by counsel for condemned inmates for access
to a telephone during the execution process. See Pet.
App’x 47a; Grayson v. Warden, 2016 WL 7118393
(11th Cir. 2016) (denying telephone access request by
counsel for Smith prior to his December 8, 2016 execution).
In Mr. Arthur’s case, the court of appeals’ decision
affirmed a ruling by the district court that the right to
access the courts should not extend to the last moments of a prisoner’s life because “once the execution
drugs begin to flow, only the warden knows what has
been administered, in what amounts, and generally
over what time period” and, therefore, there may be
risks associated with any decision to cease the continued administration of any drugs. Pet. App’x 21a-22a.
That ruling is in direct conflict with the recent district
court ruling in McGehee, which—drawing upon this
Court’s long-standing precedent regarding the right
of access to the court—has held that this right must
extend through the execution process. See McGehee,
2017 WL 1381663, at *28-*29.
This basis for denying Mr. Arthur’s request also is
speculative and incorrect. Though it might be that
“only the warden knows” what drugs had been administered, that does not mean that the warden’s actions
are immunized from judicial review and should not
prevent a condemned inmate from exercising the
right “to present claimed violations . . . to the courts”
through counsel. Lewis, 518 U.S. at 351. As the dis-

 13
sent below recognized, “[t]he right of access to the
courts is a fundamental right that exists until a death
row prisoner’s life is taken. The right does not vanish
when a prisoner enters the execution chamber and the
state begins to tinker with the machinery of death.”
Pet. App’x 55a (Wilson, J., dissenting). In other
words, as held in McGehee, if telephone access is denied, the prisoner will be deprived of his constitutional right “of meaningful access to a court from which
[he] might seek redress.”
McGehee, 2017 WL
1381663, at *29 (internal quotation marks and citation
omitted).
Moreover, although the district court in Mr. Arthur’s case could not “imagine a scenario” in which
judicial review of an execution “should be undertaken,” Pet. App’x 22a, no use of imagination is necessary
– numerous examples of botched executions underscore the need for judicial review in certain circumstances. For example, in the event that a prisoner
exhibits movements after being injected with midazolam, access to the court would allow a determination
to be made as to whether it is then constitutionally
permissible to continue with the administration of a
paralytic and heart-stopping agent. Notably, reports
of “botched” executions in other states have referred
to counsel’s efforts to contact the courts to seek relief.
See, e.g., Mark Berman, Arizona execution lasts nearly two hours; lawyer says Joseph Wood was ‘gasping
and struggling to breathe’, Wash. Post (July 23, 2014),
https://www.washingtonpost.com/news/postnation/wp/2014/07/23/arizona-supreme-court-staysplanned-execution/?utm_term=.4db016c35a7e (“During the execution, Wood’s attorneys filed a request to
halt the lethal injection because he was still awake
more than an hour after the process began.”). Thus,

 14
as the dissenting opinion in the Eleventh Circuit
makes clear, a “sufficient likelihood exists that Arthur
will suffer harm to his Eighth Amendment rights during the execution, and there is no question that Alabama, by refusing to afform him access to a telephone,
will impede him from seeking legal redress for the
harm.” Pet. App’x 57a (Wilson, J., dissenting).
Additionally, there is no basis for the speculation of
the Eleventh Circuit (or district court) that telephone
access to the courts could not provide any meaningful
relief or “would lead to more potential harm to both
the inmate’s and the State’s interests than good.”
Pet. App’x 44a. If, for example, the midazolam the
state had administered does not render an inmate unconscious, appropriate and effective relief could be to
halt the administration of the second and third drugs
in the protocol and to administer a drug to counteract
the effects of the midazolam. 4
The court of appeals also came to its conclusion
through inappropriate fact-finding concerning the execution of Ronald Bert Smith, Jr. Mr. Arthur alleged—and proffered sworn testimony showing—that
Mr. Smith reacted to both consciousness assessments
administered to him, showing that he was not insensate when the second and third drugs in the ADOC’s
lethal injection protocol were administered. Instead
of accepting Mr. Arthur’s well-pled allegations, as it
4

The court of appeals suggestion that no injury has
been shown because counsel could “simply leave and
contact the court once outside the prison,” Pet. App’x
44a, is impractical and unrealistic. Witnesses in the
viewing chamber of an execution cannot “simply” step in
and out of the execution.

 15
was required to do under this Court’s precedent, the
court of appeals discredited the testimony. Among its
reasons, the court of appeals stated that sworn witness testimony does not “state how long those movements lasted or exactly when the first drug was started or completed.” Pet. App’x 13a n.13. This is absurd. Not only was the witness to Smith’s execution
denied a pencil and paper on which to record information, Alabama has consistently fought to keep its
protocol and executions shrouded in secrecy, blocking
inmates and the public from access to any execution
records. For example, it has fought disclosure of execution logs that could corroborate or refute Mr. Arthur’s allegations. 5 To the extent Alabama wishes to
dispute Mr. Arthur’s evidence, an appeal from a
12(b)(6) dismissal was not the appropriate venue.
Finally, there is no valid penological justification
for ADOC’s refusal to permit Mr. Arthur’s counsel to
access a telephone during his execution. See Turner
v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison
regulation impinges on inmates’ constitutional rights,
the regulation is valid if it is reasonably related to legitimate penological interests.”). Preventing counsel
from having access to a phone to contact the courts
during Mr. Arthur’s execution for purported security
reasons is particularly indefensible in light of the fact
that other states, including Arizona, Ohio, and most
recently, Arkansas, provide attorney witnesses with
such access during executions. See R.E. App’x Tab 1
5

See Kim Chandler, Judge: Alabama may keep
execution records secret, ASSOCIATED PRESS (May 25,
2017),
http://abcnews.go.com/US/wireStory/judgealabama-execution-records-secret-47437296.

 16
¶ 34; R.E. App’x Tab 3 at 10-12. For example, on
April 17, 2017, the parties in the McGehee litigation
agreed to a Joint Proposed Execution Viewing Policy
that “assures plaintiffs’ rights to counsel and access to
the courts for the entire duration of all executions.”
McGehee v. Kelley, No. 17 Civ. 179, Dkt. No. 62 at 1-2
(E.D. Ark.). Similarly in Ohio and Arizona, the lethal
injection protocols require that an attorney witness
have access to either a cellular phone or landline near
the execution chamber. See Grayson v. Dunn, No. 12
Civ. 316, Dkt. No. 65-4 at 17 (M.D. Ala.) (Arizona protocol: “While the attorney witness is in the witness
room, a member of the Witness Escort Team shall
hold one mobile phone designated by the attorney, to
be made available to the attorney in exigent circumstances.”); id., Dkt. No. 65-3 at 13 (Ohio protocol: “If
the prisoner chooses to have his or her counsel as a
witness, at all times after counsel enters the witness
room, counsel shall have free access to the phone near
the entrance door of the Death House.”). There is no
reason why counsel for an inmate in Alabama should
not have similar telephone access. 6
Allowing Mr. Arthur’s counsel phone access involves no threat to security, no cost to the State, and
no prejudice to anyone, and there is no reason why
6

Although Respondents proffered no penological
justification at all for denying phone access to Mr. Arthur’s counsel during his execution, the majority below
engages in a hypothetical exercise of proposing various
reasons why a state might consider limiting telephone
access under some circumstances. Pet. App’x 42a-44a.
All of this is entirely unsupported by the record in this
action.

 17
counsel for an inmate in the Eleventh Circuit—like
counsel for condemned inmates in Arizona, Ohio, Arkansas and elsewhere—should not have telephone access. This Court should grant certiorari to uphold the
fundamental right of access to the courts.
II. THE ELEVENTH CIRCUIT’S DECISION IMPROPERLY APPLIED THE STATUTE OF
LIMITATIONS FOR EIGHTH AMENDMENT
METHOD OF EXECUTION CHALLENGES TO
A FIRST AMENDMENT RIGHT OF ACCESS
CLAIM.
The Eleventh Circuit also affirmed the district
court’s dismissal of Mr. Arthur’s action as timebarred, incorrectly invoking the standard used to calculate statute of limitations for unrelated method-ofexecution challenges under the Eighth Amendment.7
See Pet. App’x 25a. This is another important but unsettled area of the law requiring this Court’s review.
7

In Section 1983 actions, the applicable statute of
limitations cannot begin to run until the prisoner
knows or should know that he has suffered the injury
that forms the basis of his complaint and can identify the
person who inflicted the injury.” Baker v. Sanford, 484
Fed. App’x 291, 293 (11th Cir. 2012) (citing Chappell v.
Rich, 340 F.3d 1279, 1283 (11th Cir. 2003)). Further, because constitutional claims brought under Section 1983
are tort actions, they are governed by the statute of limitations for personal injury actions in the state in which
the case was filed. See Wallace v. Kato, 549 U.S. 384,
387 (2007). In Alabama, this limitations period is two
years from the date of injury (or on which the injury
should have been known). Ala. Code § 6-2-38(l).

 18
In McGehee, the district court observed that the
Eighth Circuit had not yet opined on the applicable
statute of limitations, but that the Fifth, Sixth and
Eleventh Circuits have found “that a claim challenging the state’s method of execution accrues on the later of the date on which direct review is completed by
denial of certiorari, or the date on which the capital
litigant becomes subject to a new or substantially
changed execution protocol.” 2017 WL 1381663, at
*27 (quoting Gissendaner v. Comm’r Ga. Dep’t of
Corr., 779 F.3d 1275, 1280 (11th Cir.) and citing, inter
alia, Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d
1260, 1263-64 (11th Cir. 2014); Cooey v. Strickland,
479 F.3d 412, 416-24 (6th Cir. 2007)) (internal quotation marks omitted). Although McGehee ultimately
held that the prisoners’ First Amendment right of access claim was not time-barred, it did so by applying
the limitations period applicable to Eighth Amendment method-of-execution violations. Id. (Indeed,
this Court never has addressed the appropriateness of
this standard for method-of-execution claims or otherwise.)
The Eleventh Circuit invoked the same incorrect
standard in dismissing Mr. Arthur’s appeal here (and
went further than the district court in McGehee by
determining that Mr. Arthur’s complaint—filed the
day after the ADOC’s denial of his telephone access
request—was untimely). Pet. App’x 25a, 30a. The
Eleventh Circuit also suggested—without any citation
to authority—that Mr. Arthur’s claim would be timebarred under an undefined “access to courts framework” because, like under the “method-of-execution”
framework, the limitations period began to run upon
the latest revision of the ADOC’s protocol permitting
phone access. Pet. App’x 25a-29a.

 19
Specifically, under its analysis, the Eleventh Circuit held that the limitations clock started by August
1, 2012 (the date on which ADOC last updated Administrative Regulation Number 303, which sets forth its
general visitation guidelines, including its prohibition
on attorneys having cellular phones without “prior
approval of the Warden and ADOC General Counsel”). See Pet. App’x 27a-29a; see also R.E. App’x Tab
5-1 (Ala. Dep’t of Corr. Reg. 303).
It is implausible, however, that Mr. Arthur “kn[ew]
or should [have] know[n] that he ha[d] suffered the
injury that forms the basis of his complaint” on that
date. Baker, 484 Fed. App’x at 293 (citation omitted).
ADOC Administrative Regulation Number 303 (2012)
does not prohibit telephone access by counsel during a
client’s execution. ADOC Administrative Regulation
Number 303 expressly allows for the possibility that
visiting attorneys may seek “prior approval” to bring
a cellular phone into prison facilities—precisely the
protocol that Mr. Arthur’s counsel followed on October 31, 2016. R.E. App’x Tab 5-1 at 23. Mr. Arthur
therefore did not suffer the injury that forms the basis of his complaint on August 1, 2012. Rather, “[o]nly
with [Alabama’s denial of Mr. Arthur’s request] did
Alabama begin interfering with Arthur’s access to the
courts; only with that denial did an imminent actual
injury to his right of access to the courts arise.” Pet.
App’x 32a (Wilson, J., dissenting).
In other words, Mr. Arthur suffered no injury prior
to November 1, 2016, when the ADOC exercised its
discretion to refuse his request to permit his counsel
to access a telephone during his execution. As such, it
makes no sense to apply the “procedural change” rule
under circumstances where the prisoners’ First

 20
Amendment right of access claim accrues only upon
the exercise of discretion by prison officials. Mr. Arthur respectfully requests that the Court grant certiorari to resolve this improper application of federal
law. 8

8

The court of appeals also held that Mr. Arthur’s
complaint was barred by the doctrine of laches even
though the district court had not dismissed on that basis.
Pet. App’x 30a-32a. For the reasons discussed above,
Mr. Arthur’s complaint is indisputably timely as it was
filed at the earliest possible time within the limitations
period: the day after the ADOC denied his counsel’s telephone access request. Moreover, as noted by the dissent, Alabama has not shown any prejudice from the
timing of the complaint. Id. 67a.

 21
CONCLUSION
For the forgoing reasons, Mr. Arthur’s Petition for
Writ of Certiorari should be granted.
Respectfully submitted,
SUHANA S. HAN
Counsel of Record
ADAM R. BREBNER
KATE L. DONIGER
AKASH M. TOPRANI
125 Broad Street
New York, NY 10004
(212) 558-4000
hans@sullcrom.com
Counsel for Petitioner Thomas D. Arthur
MAY 25, 2017