No. _______

In the Supreme Court of the United States
THOMAS D. ARTHUR, PETITIONER

v.
JEFFERSON DUNN, COMMISSIONER, ALABAMA
DEPARTMENT OF CORRECTIONS, ET AL., RESPONDENTS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

CAPITAL CASE
EXECUTION OF THOMAS D. ARTHUR
SCHEDULED FOR 6:00 P.M. (CT)
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
I. Whether a claim can be barred by res judicata
where the facts giving rise to the claim did not exist
when any prior action was filed or resolved.
II. Whether laches or other equitable principles
bar legal challenges by condemned inmates where
such challenges cannot be resolved in advance of an
execution date without an “expedited litigation
schedule.”
III. Whether it burdens a condemned prisoner’s
right to Equal Protection under the Fourteenth
Amendment, as the Sixth Circuit has held, for a state
to arbitrarily deviate from its voluntarily adopted
execution safeguards, for some prisoners but not
others, with no valid penological justification.

(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 Dunn, Commissioner of
the Alabama Department of Corrections (the
“ADOC”), and Holman Warden Cynthia Stewart.

(II)

 III
TABLE OF CONTENTS
Page
Opinions Below ..................................................................... 5 
Jurisdiction ............................................................................ 5 
Constitutional and Statutory Provisions Involved .......... 5 
Statement of the Case ......................................................... 6 
A. 

Alabama’s Lethal Injection Protocol ................... 6 

B. 

Mr. Arthur’s Prior Challenge to Alabama’s
Lethal Injection Method Under the
Baze/Glossip Framework .................................... 9 

C. 

The ADOC’s Botched Execution of Ronald
Bert Smith, Jr. .................................................... 11 

D. 

Failed Midazolam-Based Executions in
Other States Following the Smith
Execution. ............................................................ 13 

E. 

The Present Action .............................................. 14 

Reasons for Granting the Petition ................................... 15 
I. 

A. 

The Court of Appeals’ Decision Conflicts with
This Court’s Precedent By Holding that a
Cause of Action Can Be Barred by Res
Judicata Even When It Did Not Exist at the
Time of the Prior Action. ...................................... 15 
Mr. Arthur’s Current Cause of Action
Turns on the State’s Knowledge and
Intent to Cause Pain, Which Accrued
During the December 8, 2016 Smith
Execution. ............................................................ 15 

 IV
B. 

Res Judicata Cannot Apply Where the
Current Cause of Action Accrued After
any Prior Actions Were Resolved. ................... 20 

II. 

The Court of Appeals Improperly Made laches
an Automatic Defense To Any Claims Raised
Prior to An Execution, Regardless of the
Circumstances. ....................................................... 26 

III. 

The Decision Below Creates a Circuit Split on
Whether The Fourteenth Amendment
Permits a State to Arbitrarily Apply
Execution Safeguards to Some Inmates but
not Others. .............................................................. 31 

Conclusion ........................................................................... 35 
Appendix A – court of appeals opinion
(May 25, 2017) ......................................................... 1a
Appendix B – district court opinion granting
dismissing the complaint (May 18, 2017) .......... 25a

 V
TABLE OF AUTHORITIES
Page(s)
Cases:
Ex Parte Arthur,
No. 1951985 (Ala. Apr. 4, 2017) ............................... 10
Arthur v. Comm’r, Alabama Dep’t of Corr.,
840 F.3d 1268 (11th Cir. 2016) ............................ 9, 10
Arthur v. Dunn,
137 S. Ct. 14 (2016) ................................................... 28
Arthur v. Dunn,
137 S. Ct. 725 (2017) ........................................... 10, 28
Arthur v. Dunn,
195 F. Supp. 3d 1257 (M.D. Ala. 2016) ................... 10
Arthur v. Dunn,
2017 WL 1427632 (U.S. Apr. 24, 2017) ............ 10, 28
Arthur v. Dunn,
No. 17-11879, slip op. (11th Cir. May 24,
2017) ........................................................................... 30
Arthur v. Thomas,
674 F.3d 1257 (11th Cir. 2012) .......................... 32, 33
Baze v. Rees,
553 U.S. 35 (2008) (Thomas, J.,
concurring) ....................................................... passim
Brooks v. Warden,
810 F.3d 812 (11th Cir. 2016) .................................. 30
Cooey v. Kasich,
801 F. Supp. 2d 623 (S.D. Ohio 2011) ..................... 33
Duckworth v. Franzen,
780 F.2d 645 (7th Cir. 1985) .................................... 17

 VI
Cases—Continued:
Louisiana ex rel. Francis v. Resweber,
329 U.S. 459 (1947) ................................................... 16
Glossip v. Gross,
135 S. Ct. 2726 .................................................. passim
Grayson v. Allen,
491 F.3d 1318 (11th Cir. 2007) .................... 26, 27, 30
Grayson v. Warden,
2016 WL 7118393 (11th Cir. Dec. 7, 2016)............. 25
Harper v. Va. State Bd. of Elections,
383 U.S. 663 (1966) ................................................... 31
Heller v. Doe,
509 U.S. 312 (1993) ................................................... 32
Johnson v. California,
543 U.S. 499 (2005) ................................................... 32
In re Kemmler,
136 U.S. 436 (1890) ............................................... 3, 15
Lawlor v. National Screen Service Corp.,
349 U.S. 322 (1955) ..................................................... 4
Ledford v. Commissioner,
2017 WL 2104682 (11th Cir. May 15, 2017)........... 27
Lee v. Washington,
390 U.S. 333 (1968) ................................................... 32
McGehee v. Hutchinson,
854 F.3d 488 (8th Cir. 2017) .................................... 28
Muhammad v. State,
132 So. 3d 176 (Fla. 2013) ........................................ 23
New Hampshire v. Maine,
532 U.S. 742 (2001) ................................................... 20
O’Shea v. Littleton,
414 U.S. 488 (1974) ................................................... 33

 VII
Cases—Continued:
In re Ohio Execution Protocol Litig.,
2012 WL 118322 (6th Cir. Jan. 13, 2012) ............... 34
In re Ohio Execution Protocol Litig.,
2017 WL 378690 (S.D. Ohio Jan. 26, 2017) ............ 13
In re Ohio Execution Protocol Litig.,
853 F.3d 822 (6th Cir. Apr. 6, 2017) ....................... 28
Petrella v. Metro-Goldwyn-Mayer, Inc.,
134 S. Ct. 1962 (2014) ............................................... 27
SCA Hygiene Prod. Aktiebolag v. First
Quality Baby Prod., LLC,
137 S. Ct. 954 (2017) ................................................. 27
Shalala v. Illinois Council on Long Term
Care, Inc.,
529 U.S. 1 (2000) ....................................................... 16
State of Kansas v. State of Colorado,
514 U.S. 673 (1995) ................................................... 29
Third Nat. Bank of Louisville v. Stone,
174 U.S. 432 (1899) ................................................... 26
Towery v. Brewer,
672 F.3d 650 (9th Cir. 2012) .................................... 34
Turner v. Safley,
482 U.S. 78 (1987) ..................................................... 32
Vacco v. Quill,
521 U.S. 793 (1997) ................................................... 31
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016) ..................................... 4, 21, 25
Wilson v. Seiter,
501 U.S. 294 (1991) ....................................... 15, 16, 17
Wood v. Collier,
2016 WL 4750879 (5th Cir. Sept. 12, 2016) ........... 34

 VIII
Cases—Continued:
Workman v. Bredesen,
486 F.3d 896 (6th Cir. 2007) .................................... 17
Constitutional Provisions
U.S. Const. amend. VIII ........................................... 5, 15
U.S. Const. amend. XIV .............................................. 5, 6
Statutes
28 U.S.C. 1254(1) .............................................................. 5
Rules
Federal Rule of Civil Procedure 12(b)(6) ................... 14
Other Authorities
Alan Blinder, Arkansas Governor Rebuffs
Calls for Execution Inquiry, N.Y. TIMES,
Apr. 29, 2017 ................................................................ 2
DAILYMAIL.COM (Oct. 16, 2013)
http://www.dailymail.co.uk/news/article2462115/William-Happ-executed-Floridaexecutes-murderer-using-untried-lethalinjection-drug.html................................................... 23
David Waisel, The drugs we use for
executions can cause immense pain and
suffering, WASH. POST (May 11, 2017) .................... 8
Kent Faulk, Alabama Death Row inmate
Ronald Bert Smith heaved, coughed for
13 minutes during execution, AL.COM
(Dec. 8, 2016),
http://www.al.com/news/birmingham/inde
x.ssf/2016/12/alabama_death_row_inmate
_is_se.html ................................................................. 12

 IX
Other Authorities—Continued:
Kim Chandler, Alabama inmate coughs,
heaves 13 minutes into execution,
ASSOCIATED PRESS (Dec. 9, 2016),
https://apnews.com/4c0bd6e7c9a34448aa0
af8d30e58e1d5/alabama-scheduledexecute-man-clerks-1994-killing............................. 12
Kim Chandler, Judge: Alabama may keep
execution records secret, ASSOCIATED
PRESS (May 25, 2017),
http://abcnews.go.com/US/wireStory/judg
e-alabama-execution-records-secret47437296 ..................................................................... 20

 PETITION FOR A WRIT OF CERTIORARI
——————

INTRODUCTION
This action challenges Alabama’s use of a method
of execution it knows to cause prolonged, excruciating
pain, in violation of the Eighth Amendment’s absolute
prohibition on methods that are “purposely designed
to inflict pain and suffering beyond that necessary to
cause death.” Baze v. Rees, 553 U.S. 35, 96 (2008)
(Thomas, J., concurring).
During the December 8, 2016 execution of Ronald
Bert Smith, Jr., the first drug in Alabama’s lethal
injection protocol, midazolam hydrochloride, was
supposed to anesthetize Smith—but it did not work.
According to sworn eyewitness testimony, after the
“anesthetic” was administered, Smith was “moving his
head, hands and arms, coughing, and attempting to
speak. He reacted to [an] arm pinch by moving his
arm toward his body (away from the source of pain).”
Even after a second dose of midazolam was
administered, Smith continued to move his arm and
had his eyes open—despite a guard’s attempt to close
them. App’x Tab 6-1 ¶¶ 7-11.1 Expert medical
testimony of record confirms that Smith’s actions
mean he was not adequately anesthetized. App’x Tab
6-2 ¶ 27.

1

References to the Appendix filed at the court of appeals are
cited as “App’x” followed by the tab number and page/paragraph
number within the document.

(1)

 2
According to Alabama’s, this should have been
impossible; Smith was administered (twice) a massive
overdose of midazolam so large that it was supposed
to immediately render him insensate and comatose for
the duration of the execution. And yet, despite the
unmistakable visual evidence that Smith was awake—
as confirmed by Alabama’s own “consciousness
assessment”—Alabama continued with the execution.
Although Alabama’s own execution protocol called for
an additional dose of midazolam if the inmate was still
conscious and reactive, Smith was instead next
injected with a paralytic, which both suffocated him
and rendered him immobile, unable to express his
agony—creating a “chemical curtain.” Then, Alabama
administered a chemical salt that, absent adequate
anesthesia, has been described as “the chemical
equivalent of being burned at the stake.” Glossip v.
Gross, 135 S. Ct. 2726, 2781 (Sotomayor, J.,
dissenting).
Subsequent to the Smith execution, executions in
other states have confirmed that the pain and
suffering Smith felt was not an aberration. Just last
month, Arkansas administered the same protocol on
Kenneth D. Williams, who was “coughing, convulsing,
lurching, [and] jerking” after he was injected with
midazolam—i.e., after he was supposed to have been
unconscious and insensate.2
In light of the Smith execution in December 2016
(as further confirmed by the subsequent executions in
other states), Alabama now has actual knowledge that
its protocol is likely to result in an agonizing
execution—yet it unjustifiably insists that it can
2

Alan Blinder, Arkansas Governor Rebuffs Calls for Execution
Inquiry, N.Y. TIMES, Apr. 29, 2017, at A11.

 3
proceed to execute Mr. Arthur with the same
torturous protocol. Such an “intentional infliction of
gratuitous pain” is the very “evil the Eighth
Amendment targets” with its prohibition on cruel and
unusual punishments, Baze, 553 U.S. at 102 (Thomas,
J., concurring), and is categorically barred,
irrespective of the existence of any potential
alternative, see id. at 101-02 (“It strains credulity to
suggest that the defining characteristic of [purposely
torturous punishments] was that they involved risks
of pain that could be eliminated by using alternative
methods of execution.”). Because Alabama knows its
planned means of executing Mr. Arthur will result in
severe pain, its method of execution is inherently
“cruel” under the Eighth Amendment. See In re
Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are
cruel when they involve torture or a lingering
death.”).
Moreover, Alabama has demonstrated a selective
and
arbitrary
application
of
its
execution
safeguards—the
only
purported
protection
condemned prisoners in Alabama have against a cruel
and unusual execution. According to its own protocol,
Alabama is supposed to inject painful drugs only if its
“consciousness assessment” confirms that the inmate
is insensate.
While Alabama purports to have
followed this protocol during the January 23, 2016
execution of Christopher Brooks, sworn eyewitness
testimony shows that Alabama did not do so during
the December 8, 2016 Smith execution. And because
Alabama has demonstrated a willingness to deviate
from its protocol in its very last execution, there is a
high likelihood that the same will happen during Mr.
Arthur’s execution. Such arbitrary unequal treatment
burdens an inmate’s right to Equal Protection—the

 4
court of appeals’ decision to the contrary run afoul its
own precedent and creates a needless conflict with the
Sixth Circuit requiring this Court’s intervention.
The court of appeals did not rule on the merits of
these claims, and instead relied on (1) res judicata,
and (2) laches and equitable principles, to dismiss Mr.
Arthur’s claims.3 But both of these rulings are
inconsistent with this Court’s clear precedent. Res
judicata does not apply because Mr. Arthur’s claims
did not accrue until the Smith execution, which took
place well after his prior action had been dismissed.
It is well-established that a prior action “cannot be
given the effect of extinguishing claims which did not
even then exist.” Lawlor v. National Screen Service
Corp., 349 U.S. 322, 328 (1955); see Whole Woman’s
Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016).
Nor can laches reasonably apply here. This action
was brought only five months after the Smith
execution, which is when the cause of action accrued.
Notably, Mr. Arthur was under a stay of execution
ordered by this Court at the time of the Smith
execution and afterwards, and if this Court had
granted certiorari in Mr. Arthur’s prior action, that
could have made the present case superfluous. Mr.
Arthur then timely filed this action only weeks after
this Court concluded its review of Mr. Arthur’s prior
petition. Additionally, Mr. Arthur did not delay (or
cause any prejudice to the state)—immediately after
the Smith execution, Mr. Arthur sought the records of
that execution, and, after Alabama’s delayed refusal
to provide those records, sought to obtain them in
3

The court of appeals applied res judicata only to Mr.
Arthur’s Eight Amendment claim, but laches and equitable
principles to both his Eighth and Fourteenth Amendment claims.

 5
state court. Mr. Arthur filed this action the day after
the state court denied his request.4 The reliance of
the district court and court of appeals on laches and
equitable principles to bar Mr. Arthur’s claim creates
an arbitrary barrier to meritorious claims and is not
equitable.
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a24a) is unreported. The order of the district court
dismissing Mr. Arthur’s complaint (Pet. App. 25a-42a)
is also unreported.
JURISDICTION
The decision of the court of appeals affirming the
district court’s judgment was entered on May 25,
2017. This petition was timely filed on May 25, 2017.
This Court has jurisdiction under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
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: “No state shall . . . deny to any
person within its jurisdiction the equal protection of
the laws.” U.S. Const. amend. XIV.

4

Mr. Arthur has appealed the state court’s denial to the
Alabama Supreme Court.

 6
STATEMENT OF THE CASE
A. Alabama’s Lethal Injection Protocol
1. To execute condemned prisoners, Alabama
uses a lethal injection protocol (the “ADOC Lethal
Injection Protocol”) consisting of three drugs
administered in the following order: (1) midazolam
hydrochloride, (2) rocuronium bromide, and (3)
potassium chloride. App’x Tab 1 ¶ 24. The first drug
is intended to be an anesthetic, the second drug
paralyzes the inmate, and the third induces cardiac
arrest.
App’x Tab 1 ¶ 24.
Absent adequate
anesthesia, the second and third drugs cause
agonizing pain and suffering. App’x Tab 1 ¶ 24.
Midazolam hydrochloride, the first drug in the
ADOC Lethal Injection Protocol, in not an anesthetic.
App’x Tab 1 ¶ 25. Midazolam is a sedative that is part
of a family of drugs called benzodiazepines, which are
primarily used for treating anxiety—other wellknown benzodiazepines include drugs such as
diazepam (Valium), lorazepam (Ativan), alprazolam
(Xanax). App’x Tab 1 ¶ 25. In clinical settings,
midazolam is commonly used to relieve anxiety and
sedate patients before surgery, and although
midazolam is sometimes used for anesthesia in
concert with several other more potent anesthetics, it
is—according to the FDA and the product’s own
packaging—not approved for use as a standalone
general anesthetic. App’x Tab 1 ¶¶ 25-26.
There are well-accepted scientific reasons why
midazolam is not used as a standalone general
anesthetic for major surgery, and these reasons
demonstrate equally that it is not suitable for use in a
constitutionally acceptable execution protocol. App’x
Tab 1 ¶ 26. Studies have shown that midazolam

 7
exhibits a “ceiling effect,” which means that there is a
level after which no additional dose of midazolam will
have any impact. App’x Tab 1 ¶ 26. Critically, that
“ceiling” for midazolam is below the level necessary to
induce a depth of anesthesia required for invasive
surgery—or painful executions. App’x Tab 1 ¶ 26.
Additionally, midazolam does not have any
analgesic (pain-relieving) properties. To the extent
midazolam is ever used as a component of anesthesia,
it is because midazolam produces anterograde
amnesia—i.e., it inhibits the formation of new
memories after administration, but has little or no
impact on sensation or experiences in the moment.
App’x Tab 6-2 ¶ 13.
The second drug in the ADOC Lethal Injection
Protocol is rocuronium bromide, which is a
non-depolarizing neuromuscular blocking agent, or
paralytic. App’x Tab 1 ¶ 27. Administration of
rocuronium bromide rapidly induces a complete
inability to exercise control over voluntary muscles,
but does not affect the brain or sensory nerves, and
therefore does not affect sensation, capacity to feel
pain, consciousness, or cognition. App’x Tab 1 ¶ 27.
Indeed, the manufacturer’s package insert for
rocuronium bromide warns: “Rocuronium bromide
has no known effect on consciousness, pain threshold,
or cerebration. Therefore, its administration must be
accompanied by adequate anesthesia or sedation.”
App’x Tab 1 ¶ 27.
Thus, an inmate to whom rocuronium bromide is
administered, if not properly anesthetized, will
experience the physical and psychological agony of
suffocation—a sensation that has been compared to
being buried alive. App’x Tab 1 ¶ 28. Further,
because the inmate is paralyzed, he is unable to

 8
convey to observers that he is experiencing these
effects. App’x Tab 1 ¶ 28. The use of rocuronium
bromide in executions has been referred to as a
“chemical curtain”—it spares observers to the
execution from watching the condemned writhe in
agony, while in fact only increasing the pain and
suffering of the execution.5
The third drug in the protocol is potassium
chloride. Potassium chloride disrupts the normal
electrical activity of the heart and induces cardiac
arrest, i.e., it stops the heart from pumping blood.
App’x Tab 1 ¶ 29. As it travels in the bloodstream
from the site of injection towards the heart, potassium
chloride activates all of the nerve fibers inside the
vein, causing a burning sensation as it travels through
the body destroying the internal organs. App’x Tab 1
¶ 29. Absent complete anesthesia, the injection of
potassium chloride causes excruciating pain for the
recipient; the chemical equivalent of being burned
alive. App’x Tab 1 ¶ 29; see Glossip, 135 S. Ct. at 2781
(Sotomayor, J., dissenting).
Under the ADOC Lethal Injection Protocol, after
the first drug is administered, but before the
administration of the last two drugs, ADOC personnel
must perform a so-called “consciousness assessment,”
the purpose of which is purportedly to ensure that the
inmate has been sufficiently anesthetized to withstand

5

David Waisel, The drugs we use for executions can cause
immense pain and suffering, WASH. POST (May 11, 2017),
https://www.washingtonpost.com/opinions/the-drugs-we-use-forexecutions-can-cause-inhumane-pain-andsuffering/2017/05/11/267478d0-359e-11e7-b41262beef8121f7_story.html?utm_term=.2486f0fc1f3a.

 9
the excruciating pain of the second and third drugs in
the protocol. App’x Tab 1 ¶ 30.
The ADOC’s protocol for its consciousness
assessment requires a member of the execution team
to (1) say the inmate’s name out loud, (2) brush the
inmate’s eyelid, and then (3) pinch the inmate. App’x
Tab 1 ¶ 31. If the inmate reacts to any portion of the
consciousness assessment, the ADOC Lethal Injection
Protocol calls for an additional dose of midazolam
hydrochloride, and following that, an additional
consciousness assessment. App’x Tab 1 ¶ 31. If, and
only if, the inmate does not react to the consciousness
assessment, the second and third drugs are
administered. App’x Tab 1 ¶ 31.6
B. Mr. Arthur’s Prior Challenge to Alabama’s
Lethal
Injection
Method
Under
the
Baze/Glossip Framework
Mr. Arthur previously commenced an action in the
District Court for the Middle District of Alabama
challenging the ADOC Lethal Injection Protocol
under the framework of this Court’s decisions in Baze
v. Rees, 553 U.S. 35 (2008) and Glossip v. Gross, 135
S. Ct. 2726 (2015). In Glossip, this Court expanded on
its prior ruling in Baze, and held that a method of
execution violates the Eighth Amendment if the
prisoner can show that the method entails an
“objectively intolerable risk of harm” when compared
to “an alternative that is feasible, readily
implemented, and in fact significantly reduces a
substantial risk of severe pain.” 135 S. Ct. at 2737
6

Details regarding the ADOC Lethal Injection Protocol are
publicly available. See Arthur v. Comm’r, Alabama Dep’t of Corr.,
840 F.3d 1268, 1274, 1280 (11th Cir. 2016).

 10
(internal quotation marks omitted). The Glossip
standard does not require any direct showing of
intent.
On April 15, 2016, after an evidentiary hearing
limited in relevant respects to the availability of an
alternative method of execution, the Middle District
of Alabama dismissed Mr. Arthur’s Glossip claim,
reasoning that he had failed to prove the ready
availability of an alternative.7 The district court did
not rule on the substantial evidence demonstrating
the inadequacy of midazolam as an anesthetic,
although it later acknowledged that Mr. Arthur’s
expert evidence on this issue was “impressive.”
Arthur v. Dunn, 195 F. Supp. 3d 1257, 1270 (M.D.
Ala. 2016). A split panel of the Eleventh Circuit
affirmed the district court’s rulings, Arthur, 840 F.3d
at 1320-1321, and this Court denied certiorari, 137 S.
Ct. 725 (2017) (mem.). Following this Court’s denial
of certiorari, on April 4, 2017, the Alabama Supreme
Court set a May 25, 2017 execution date for Mr.
Arthur, Ex Parte Arthur, No. 1951985 (Ala. Apr. 4,
2017). However, shortly afterwards, circuit splits
emerged on two separate issues raised in Mr.
Arthur’s petition for certiorari, and so he petitioned
for rehearing. This Court denied rehearing on April
24, 2017. Arthur v. Dunn, 2017 WL 1427632 (U.S.
Apr. 24, 2017) (mem.).

7

The procedural history of Mr. Arthur’s earlier Eighth
Amendment action is recounted here only in the respects relevant
to the current action.

 11
C. The ADOC’s Botched Execution of Ronald
Bert Smith, Jr.
On December 8, 2016, four months after Mr.
Arthur’s Glossip claim had been dismissed by the
Middle District of Alabama, the ADOC executed
Ronald Bert Smith, Jr., purportedly following the
ADOC Lethal Injection Protocol. App’x Tab 1 ¶ 37.
As an eyewitness testified in an affidavit submitted
with the Complaint in this action, after Smith was
administered midazolam, he “began having difficulty
breathing, including regular asthmatic-sounding
barking coughs every ten seconds or so. He also
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.
[Smith’s] eyes never closed, and he moved and
coughed regularly throughout approximately the next
fifteen minutes.” App’x Tab 6-1 ¶ 7. Even after “the
first consciousness check, it was obvious [Smith] was
still awake, as he was still moving his head, hands and
arms, coughing, and attempting to speak. He reacted
to the arm pinch [in the consciousness assessment] by
moving his arm toward his body (away from the
source of pain).” App’x Tab 6-1 ¶ 8. After some time,
a second dose of midazolam was administered, and a
second “consciousness assessment” was conducted,
but Smith “continued to move and his eyes remained
open. While touching [Smith’s] left eyelid, the guard
pushed it closed, but [the eyelid] opened as soon as
[the guard] removed his finger.” App’x Tab 6-1 ¶ 10.
After the second attempt at a consciousness
assessment was conducted, Smith “moved his right
arm,” showing that he was still conscious and sensate,
as the testimony of an anesthesiologist has confirmed.
App’x Tab 6-1 ¶ 11; App’x Tab 6-2 ¶¶ 26-27. Although

 12
the ADOC Lethal Injection Protocol calls for another
dose of midazolam if an inmate is responsive to the
consciousness assessment, Alabama skipped that
step—the
paralytic
was
administered
soon
afterwards, and Smith’s “breathing became very
shallow and he stopped moving.
[Smith’s] eyes
remained open, with the left eye opening further as
his breathing became imperceptible.” App’x Tab 6-1 ¶
11. ADOC personnel closed the curtains around the
execution chamber before the execution was complete.
App’x Tab 6-1 ¶ 12.8
After being questioned by the media about the
movements Smith made during his execution,
Respondent Dunn stated only that “we do know we
followed our protocol. We are absolutely convinced of
that.” App’x Tab 1 ¶ 39. Alabama has since sought to
conceal from public scrutiny records of the Smith
execution, including by denying a request under the
Alabama Open Records Act from Mr. Arthur. On
December 16, 2016, Mr. Arthur submitted a public
records request to the ADOC seeking records
concerning the executions of Smith (and of
Christopher Brooks who was executed in January
2016). The ADOC denied the request on February 2,
2017, saying that it was “the position of the
8

While this testimony comes from one of Smith’s attorneys,
accounts from reporters are entirely consistent. See Kent Faulk,
Alabama Death Row inmate Ronald Bert Smith heaved, coughed
for 13 minutes during execution, AL.COM (Dec. 8, 2016),
http://www.al.com/news/birmingham/index.ssf/2016/12/alabama_dea
th_row_inmate_is_se.html; Kim Chandler, Alabama inmate coughs,
heaves 13 minutes into execution, ASSOCIATED PRESS (Dec. 9,
2016),
https://apnews.com/4c0bd6e7c9a34448aa0af8d30e58e1d5/alabamascheduled-execute-man-clerks-1994-killing.

 13
Department generally” to refuse to publicly release
execution records.9
D. Failed Midazolam-Based Executions in
Other States Following the Smith Execution.
After December 2016, events in other states
confirmed that the Smith execution was no aberration.
On January 18, 2017, the State of Virginia executed
Ricky Gray using a midazolam-based protocol
substantially similar to the ADOC Lethal Injection
Protocol. App’x Tab 1 ¶ 40. After being administered
midazolam, when he was supposed to have been
anesthetized, Mr. Gray experienced “labored
breathing, gasping, snoring, and other audible and
visible activity.” In re Ohio Execution Protocol
Litig., 2017 WL 378690, at *13 (S.D. Ohio Jan. 26,
2017).
On April 24, 2017, the State of Arkansas executed
Jack Jones using a protocol nearly identical to the
ADOC’s. After the administration of midazolam,
Mr. Jones continued to “move[] his lips” and “gulp for
air” as the other, lethal drugs were administered,
indicating that Mr. Jones was still conscious. App’x
Tab 1 ¶ 41.
Three days later, Arkansas administered the same
protocol to Kenneth D. Williams. A reporter from the
Associated Press who observed the execution said
9

To address the ADOC’s refusal to comply with Alabama’s
Open Record Act, Mr. Arthur filed a mandamus action in
Montgomery County Circuit Court on March 8, 2017. See Compl. ¶
17, Arthur v. Dunn, No. cv 17-139, (Ala. Cir. Ct. Mar. 8, 2017). On
May 15, 2017, the Court granted the State’s motion to dismiss Mr.
Arthur ’s mandamus action and denied Mr. Arthur’s cross-motion
for summary judgment. Mr. Arthur has filed a notice of appeal with
the Alabama Supreme Court.

 14
that Mr. Williams was “coughing, convulsing,
lurching, [and] jerking after the state began to
administer midazolam.” App’x Tab 1 ¶ 42. According
to reports, “Mr. Williams lurched 20 times—15 of
them in rapid succession—and emitted sounds that
could be heard in the adjacent witness room. By then,
a microphone in the execution chamber had been
switched off.” App’x Tab 1 ¶ 42.
Based on these executions, Alabama has further
confirmation that the result of the Smith execution—
that the midazolam will not perform its intended
function—will reoccur at Mr. Arthur’s execution.
E. The Present Action
On May 16, 2017, the day after the Alabama Circuit
Court dismissed Mr. Arthur’s attempt to obtain its
records of the Smith execution, Mr. Arthur filed the
Complaint in this action along with a motion for a
preliminary injunction and/or temporary restraining
order.
Two days later, the district court sua sponte
entered an order dismissing the action for failure to
state a claim under Federal Rule of Civil Procedure
12(b)(6). Pet. App. 26a. The district court based its
rulings on two grounds: (1) that Mr. Arthur’s Eighth
Amendment claim was res judicata, because the
present claims “could have been raised” in Mr.
Arthur’s prior Glossip action, Pet. App. 29a and (2)
that the action was barred by laches or “specialized
equitable principles.” Pet. App. 34a. The district
court also denied Mr. Arthur’s motion for a
preliminary injunction/temporary restraining order as
moot.
The day after the district court’s judgment, Mr.
Arthur filed his opening brief with the court of

 15
appeals. The appeal was fully briefed yesterday, May
24, 2017, and the court of appeals released its opinion
at 2:46 p.m. ET today.
The court of appeals affirmed, largely adopting the
reasons of the district court. The court held that (1)
Mr. Arthur’s Eighth Amendment claim could have
been raised in his Glossip action and is therefore res
judicata, (2) that Mr. Arthur unreasonably delayed in
bringing this action, and (3) the equities did not favor
a stay.
REASONS FOR GRANTING THE PETITION
I. THE COURT OF APPEALS’ DECISION
CONFLICTS
WITH
THIS
COURT’S
PRECEDENT BY HOLDING THAT A CAUSE
OF ACTION CAN BE BARRED BY RES
JUDICATA EVEN WHEN IT DID NOT EXIST
AT THE TIME OF THE PRIOR ACTION.
A. Mr. Arthur’s Current Cause of Action Turns
on the State’s Knowledge and Intent to Cause
Pain, Which Accrued During the December 8,
2016 Smith Execution.
1. The Eighth Amendment, applicable to the states
through the Due Process Clause of the Fourteenth
Amendment, prohibits “cruel and unusual” methods of
execution. U.S. Const. amend. VIII. While “[s]ome
risk of pain is inherent in any method of execution,”
Baze, 553 U.S. at 47, “[p]unishments are cruel when
they involve torture or a lingering death,” In re
Kemmler, 136 U.S. at 446. This Court has long held
that a “wanton infliction of pain implicates the Eighth
Amendment” where a prison official acts with “a
sufficiently ‘culpable state of mind.’” Farmer, 511

 16
U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294,
297 (1991)).
The traditional Eighth Amendment action, turning
on a prison official’s “culpable state of mind,” Farmer,
511 U.S. at 834, must be distinguished from the claims
at issue in Baze and Glossip—those decisions did not
purport to set aside a century of the Court’s Eighth
Amendment jurisprudence that categorically forbid
the intentional infliction of severe pain. See Shalala
v. Illinois Council on Long Term Care, Inc., 529 U.S.
1, 18 (2000) (“This Court does not normally overturn,
or so dramatically limit, earlier authority sub
silentio.”). Instead, Baze and Glossip arose under a
different context where no party contested the State’s
“earnest desire to provide for a progressively more
humane manner of death.” Baze, 553 U.S. at 51. The
disputes in those cases concerned whether the State’s
method of execution reflected a “demonstrated risk of
severe pain . . . when compared to the known and
available alternatives,” Glossip, 135 S. Ct. at 2737,
which served as a proxy for a showing of intent. As
such, Baze and Glossip have nothing to say about a
case, like this one, where an inmate can directly prove
the State’s purposeful intent to conduct an execution
knowing that it will inflict severe pain.
These two distinct lines of Eighth Amendment
jurisprudence—one turning on direct evidence of
intent, the other focusing on objective risk of harm—
are illustrated by this Court’s decision in Louisiana
ex rel. Francis v. Resweber, 329 U.S. 459 (1947). As
this Court later explained, Resweber involved “an
effort to subject a prisoner to a second electrocution
after the first attempt failed by reason of a
malfunction in the electric chair.” Wilson, 501 U.S. at
297. In allowing the second attempt to proceed, the

 17
Resweber Court found no constitutional violation
where “the first attempt had been thwarted by an
unforeseeable accident,” and so “the officials lacked
the culpable state of mind necessary for the
punishment to be regarded as ‘cruel.’” Id. (internal
quotation marks omitted; emphasis added). However,
the Wilson Court made special note of Justice
Frankfurter’s Resweber concurrence, where he
explained “that he might reach a different conclusion
in a hypothetical situation, which assumes a series of
abortive attempts at electrocution or even a single,
cruelly willful attempt.” Id. at 298 (internal quotation
marks omitted; emphasis added). Thus, the same
method of execution can either run afoul of the
Constitution or not depending on the “prison official’s
state of mind.”
Wilson, 501 U.S. at 299; see
Workman v. Bredesen, 486 F.3d 896, 907 (6th Cir.
2007) (distinguishing lethal injection case involving
risk of unintentional maladministration from “a
situation where the State has any intent (or anything
approaching intent) to inflict unnecessary pain”).
Accordingly, in circumstances where tortuous pain
is the knowing, intended result of a punishment, the
“readily available” alternative requirement from Baze
and Glossip does not apply. See Baze, 553 U.S. at
101-02 (Thomas, J., concurring) (“It strains credulity
to suggest that the defining characteristic of
[purposely torturous punishments] was that they
involved risks of pain that could be eliminated by
using alternative methods of execution.”). The Eighth
Amendment’s prohibition on “the deliberate infliction
of pain for the sake of pain” is a constitutional floor

 18
below which no method of execution can sink. Baze,
533 U.S. at 48.10
2. In prior litigation and in public, Alabama has
defended the constitutionality of its lethal injection
protocol by arguing that the dose of midazolam
administered per its procedure will render the inmate
unconscious and insensate for the duration of the
execution.11 Alabama’s December 8, 2016 execution of
Ronald Bert Smith, Jr., however, shows that it can no
longer maintain that position: despite being given two
500 mg doses of midazolam, Smith was moving and
reacting to touch. When Alabama continued with
Smith’s execution, administering two agonizingly
painful drugs to a person its own “assessment”
showed to be conscious, it could no longer claim a
good faith belief in midazolam’s efficacy or that its
protocol was not intended to inflict pain. At that
10

To be clear, Mr. Arthur does not rely on Justice Thomas’
concurrence in Baze as the controlling opinion from that case, which
of course it was not. However, Justice Thomas’ opinion does
accurately reflect the existing standard for proving an Eighth
Amendment claim, and nothing in the Baze plurality or Glossip
majority opinions, which created a separate and distinct means of
proving an Eighth Amendment violation, changes that. Justice
Thomas explained that the sole concern of the Eighth Amendment
in the existing jurisprudence was whether a method of execution
involves the “intentional infliction of gratuitous pain,” Baze, 553
U.S. at 102 (Thomas, J., concurring). What Justice Thomas rejected
was the new legal standard created by the Court that involved
“weigh[ing] the relative advantages and disadvantages of different
methods of execution.” Id. at 106. Mr. Arthur does not rely on that
test here.
11

See, e.g., Defendants’ Pretrial Br. at 20, Arthur v.
Davenport, No. 2:11-cv-438-WKW, ECF No. 311 (M.D. Ala. Jan. 5,
2016) (describing expert evidence supposedly showing that
“midazolam is appropriate for use in lethal injection”).

 19
point, Alabama crossed the threshold from mere
indifference to risk into the “intentional infliction of
gratuitous pain,” which is the very “evil the Eighth
Amendment targets.” Baze, 553 U.S. at 102 (Thomas,
J., concurring).
The Smith execution reveals
Alabama’s “knowing willingness” to proceed with an
inadequate anesthetic and therefore a torturous
execution. Farmer, 511 U.S. at 836.
The court of appeals tried to downplay the
significance of the Smith execution by casting doubt
on Mr. Arthur’s evidence. According to the court, Mr.
Arthur’s evidence could not be trusted because:
Hahn does not state how long those
movements lasted or exactly when the
first drug was started or completed. Of
course, this is because witnesses do not
know when the administration of the first
drug begins or ends and thus do not know
whether the movements occurred before
or after the completion of the first
sedative drug.
Pet. App. 22a. This is absurd. Not only was Mr.
Hahn 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.12 To the extent

12

records

See Kim Chandler, Judge: Alabama may keep execution
(May
25,
2017),
secret,
ASSOCIATED PRESS

 20
Alabama wishes to dispute Mr. Arthur’s evidence, an
appeal from a 12(b)(6) dismissal was not the
appropriate venue. It is deeply unfair to deprive
death row inmates of any means to get precise
information on executions, and then hold them to the
standard of knowing “exactly when” drugs were
administered.13 Mr. Hahn’s affidavit contains more
than enough detail to satisfy Mr. Arthur’s burden.
Indeed, the court of appeals completely ignored
Mr. Arthur’s other evidence—the expert declaration
of Dr. Joel Zivot, an anesthesiologist with decades of
experience. As Dr. Zivot explained, he found Mr.
Hahn’s description of events sufficient to make
conclusions about whether Smith was insensate—in
short, he was not. App’x Tab 6-2 ¶¶ 26-27.
B. Res Judicata Cannot Apply Where the
Current Cause of Action Accrued After any
Prior Actions Were Resolved.
1. Res judicata is a narrow doctrine that prohibits
“successive litigation of the very same claim” by the
same parties. New Hampshire v. Maine, 532 U.S.
742, 748 (2001). But, as this Court recently explained,
“development of new material facts can mean that a
new case and an otherwise similar previous case do
not present the same claim.” Hellerstedt, 136 S.Ct. at
2305 (citing Restatement (Second) of Judgments § 24
Comment f (1980)). Because both of Mr. Arthur’s
http://abcnews.go.com/US/wireStory/judge-alabama-executionrecords-secret-47437296.
13

The court of appeals also mentioned potentially conflicting
accounts from a reporter and the Commissioner of the Alabama
Department of Corrections. Resolving that dispute was for the trier
of fact—not an appellate court in the first instance.

 21
claims are premised upon the December 8, 2016
execution of Ronald Bert Smith, Jr.,14 which took
place more than four months after his Glossip claims
were dismissed on July 19, 2016, he could not have
raised them in his prior action.
In Hellerstedt, the Court held that changed
material facts permitted the plaintiffs in that case to
reassert the very same legal theory that had
previously been litigated. See id. Here, not only did
Mr. Arthur allege (and proffer evidence showing) new
material facts, his action proceeded on an entirely
different legal theory. Indeed, even the dissenting
opinion in Hellerstedt described as “unremarkable”
the “proposition that a prior judgment does not
preclude new claims based on act occurring after the
time of the first judgment.” Hellerstedt, 136 S.Ct. at
2335 (Alito, J., dissenting). The court of appeals’
ruling to the contrary simply cannot be squared with
this Court’s (or its own) precedent.
B. Although Mr. Arthur’s current action turns on
the Smith execution, which took place after his
Glossip action was dismissed, the court of appeals
held that res judicata applied to bar Mr. Arthur’s new
Eighth Amendment claim because allegations
concerning the Smith execution “are simply more of
the same type of allegations made in his prior
midazolam challenge in the Middle District Court.”
Pet. App. 13a. Specifically, the court of appeals
pointed to Mr. Arthur’s complaint in his Glossip

14

The district court did not purport to dismiss Mr. Arthur’s
Equal Protection claim on the basis of res judicata, and the court of
appeals makes no express ruling on that basis either.

 22
action,15 which included allegations concerning four
previous executions:
(i) Florida’s October 15, 2013 execution of
William Happ, who allegedly “made an
unusual number of body movements”; (2)
Ohio’s January 16, 2014 execution of
Dennis McGuire, who struggled “for about
10 minutes”; (3) Oklahoma’s April 29, 2014
execution of Clayton Lockett, where
placing the IV line was problematic; and
(4) Arizona’s July 23, 2014 execution of
Joseph Wood.).
Pet. App. 13a. These executions, the court of appeals
reasoned, were just as capable of giving rise to Mr.
Arthur’s current claim premised on the intentional
infliction of severe pain.
That ignores, however, that Alabama previously
argued that those four executions had significant
differences which rendered them inapposite to
Alabama’s protocol. See Defendants’ Pre-Trial Brief
at 22 n.66, Arthur v. Dunn, No. 2:11-cv-438, ECF No.
311 (M.D. Ala. Jan. 5, 2016) (“ADOC Pre-Trial
Brief”). As the State noted, Ohio’s executions of
Dennis McGuire and Joseph Wood used a two-drug
protocol involving midazolam and hydromorphone,
and the midazolam was administered in “fifteen fiftymilligram doses.” Id. Meanwhile, the Oklahoma
Clayton “Locket execution suffered from difficulty

15

See Third Amended Complaint, Arthur v. Dunn, No. 2:11cv-438, ECF No. 267 (M.D. Ala. Oct. 13, 2015).

 23
with the IV access site.” Id.16 Finally, concerning
Florida’s execution of William Happ, press reports
indicate that he did not react to a consciousness
assessment,17 and the only expert to examine the case
could not opine that Happ’s head movements
necessarily indicated that he was conscious. See
ADOC Pre-Trial Brief at 22 n.66 (citing Muhammad
v. State, 132 So. 3d 176, 190 (Fla. 2013)). Accordingly,
the State has consistently maintained that the
problematic aspects of executions in other states
preceding the Smith execution did not cause the
ADOC to know that its protocol would result in a
painful execution.
More importantly, as the court of appeals
recognized, Pet. App. 14a, unlike the Smith execution,
which was witnessed and conducted by Alabama
corrections personnel, these prior executions were
not. While these other cases are certainly probative
of whether midazolam is effective as an anesthetic,
none of those out-of-state cases can establish the state
of mind of the Alabama DOC. At the Smith execution,
an ADOC agent (an execution team member) tested
Smith’s consciousness, the assessment failed
(meaning that Smith was still sensate), and yet the
16

Alabama also stated that this Court in Glossip found that
because of these differences, “the Lockett and Wood executions
have little probative value” for analyzing a protocol substantially
similar to the ADOC’s. Glossip, 135 S. Ct. at 2746.
17

William Happ executed: Florida executed murderer using
untried lethal injection drug, DAILYMAIL.COM (Oct. 16, 2013)
http://www.dailymail.co.uk/news/article-2462115/William-Happexecuted-Florida-executes-murderer-using-untried-lethal-injectiondrug.html (“At 6.08pm, the official overseeing the execution tugged
at Happ’s eyelids and grasped his shoulder to check for a response.
There was none.”).

 24
ADOC carried out the execution anyways. This
provides direct evidence of the ADOC’s state of mind
that no other state’s execution could.
The court of appeals also referred Mr. Arthur’s
allegations in prior cases “(1) that Alabama executed
inmate Christopher Brooks in January 2016 using
midazolam, (2) that Brooks opened his left eye after
the midazolam was injected, and (3) that Brooks was
insufficiently anesthetized by midazolam.” Pet. App.
14a-15a. Because the Brooks execution occurred
before Mr. Arthur’s Glossip action was dismissed, the
court of appeals concluded that Mr. Arthur could have
raised the present claim on the basis of that
execution.
That is wrong and disregards the
allegations of the present Complaint. First, the
Complaint contains no allegation—and Mr. Arthur is
aware of no reports showing—that Brooks reacted to
the consciousness assessment.
This is in stark
contrast to Smith, who according to multiple
eyewitnesses, made a noticeable reaction both times
the
consciousness
test
was
administered.
Accordingly, while the ADOC could claim that the
consciousness assessment did not show that Brooks
was sensate, the opposite is true for Smith. App’x
Tab 6-2 at ¶ 27. Certainly, Mr. Arthur’s position is
that the evidence shows Brooks’ execution was
painful, but it simply did not involve the same
manifest visual evidence of consciousness arising from
the Smith execution.
Second, after the Brooks
execution, the ADOC maintained that Mr. Brooks’ eye
opening was merely an “involuntary movement.” In
contrast, the movements witnesses saw during the
Smith execution unequivocally show that Smith was
still conscious—as Mr. Arthur’s anesthesiology expert
has opined:
“any individual with training in

 25
anesthesiology would know that the movements Smith
exhibited likely indicated that he was . . . likely to feel
the excruciating pain of the second and third drugs in
the ADOC’s protocol.” App’x Tab 6-2 ¶ 27. Third,
and perhaps most importantly, the Eleventh Circuit
has expressly held that “the fact that Brooks opened
one eye during his execution, without more, falls far
short of a showing of . . . a substantial risk of serious
pain.” Grayson v. Warden, 2016 WL 7118393, at *7
(11th Cir. Dec. 7, 2016) (emphasis added). If Mr.
Brooks’ eye opening cannot establish “a substantial
risk of serious pain” as a matter of law, then it also
cannot establish an intent to inflict such pain.
However, the evidence from the Smith execution
pleaded in the Complaint is the “more” the Grayson
panel found lacking in that case. In short, the Smith
execution showed unequivocally that Smith suffered,
App’x Tab 6-2 ¶ 26 (“My opinion is that Smith
experienced the severe pain and suffering arising
from the administration of Rocuronium Bromide (the
experience of suffocation) and potassium chloride (an
excruciating burning sensation).”), and that the State
knew it, App’x Tab 6-1 ¶ 27. At the very least, the
Smith execution presented a new nucleus of operative
facts precluding the application of res judicata. See
Hellerstedt, 136 S.Ct. at 2305
C. Mr. Arthur’s Complaint alleges that following
the Smith execution, the ADOC can no longer
maintain that its midazolam-based protocol is not
intended to cause pain. As expert medical evidence
presented to the district court demonstrates, no
reasonable person with a modicum of training in
anesthesiology could believe that Smith was insensate
given the movements he made at his execution. App’x
Tab 6-2 ¶ 27. The Smith execution giving rise to this

 26
claim took place after Mr. Arthur’s Glossip action was
dismissed, and thus the present claim could not have
been brought in the prior action.
The Court’s
intervention is required to reestablish hornbook law,
ignored by the Eleventh Circuit, that “[a] question
cannot be held to have been adjudged before an issue
on the subject could possibly have arisen.” Third
Nat. Bank of Louisville v. Stone, 174 U.S. 432, 434
(1899).
II. THE COURT OF APPEALS’ LACHES RULING
WOULD
BAR
VIRTUALLY
ALL
CHALLENGES BY CONDEMNED INMATES.
A. The court of appeals also affirmed dismissal of
Mr. Arthur’s complaint on the basis that he
“unreasonably delayed in bringing both his Eighth
and Fourteenth Amendment claims.” Pet. App. 16a17a. The court first reasoned that Mr. Arthur’s claim
was made too late because it was raised “sixteen
months after Brooks’ execution in Alabama.” Pet.
App. 16a. This is wrong—the Brooks execution did
not give rise to Mr. Arthur’s claim. As explained
above, Mr. Arthur’s claims did not accrue until
December 8, 2016, when Alabama significantly
deviated from its voluntarily established execution
protocol and knowingly administered excruciatingly
painful drugs into a conscious man.
Accordingly, this case simply does not raise the
concerns present in the Grayson v. Allen, 491 F.3d
1318, 1326 (11th Cir. 2007) and Ledford v.
Commissioner, 2017 WL 2104682, *6 (11th Cir. May
15, 2017), cases cited by the court of appeals. In those
cases, the facts giving rise to the claims were known

 27
years before plaintiffs filed suit.18 Here, in contrast,
Mr. Arthur’s claims brought in May 2017 arise from
the recent facts of the Smith execution in December
2016, and the confirmatory facts arising from further
executions in January and April 2017.
B. The court of appeals also criticized Mr. Arthur
for not bringing suit immediately after the Smith
execution, but this was error for at least five reasons.
First, it is fundamentally unjust to use the
equitable doctrine of laches as a backdoor to foreclose
actions timely filed under applicable statutes of
limitations. See Petrella v. Metro-Goldwyn-Mayer,
Inc., 134 S. Ct. 1962, 1967 (2014) (laches may bar
equitable relief within the limitations period only in
“extraordinary circumstances”); see also SCA
Hygiene Prod. Aktiebolag v. First Quality Baby
Prod., LLC, 137 S. Ct. 954, 961 (2017) (“Laches is a
gap-filling doctrine, and where there is a statute of
limitations, there is no gap to fill.”). Because there
can be no question that Mr. Arthur’s action was
timely under the relevant two-year statute of
limitations—and the court of appeals did not suggest
otherwise—the resort to laches is inappropriate.
Second, the court of appeals also asserts that Mr.
Arthur “has provided no reliable explanation for the
18

For example, in Ledford, plaintiff’s claims were premised
on the interaction between two drugs: pentobarbital (Georgia’s
execution drug) and gabapentin (a drug Ledford had been taking as
medication). As the Eleventh Circuit noted, “Georgia has used
lethal injection with a single dose of pentobarbital for years, and
Ledford has taken gabapentin for ten years.” Ledford, 2017 WL
2104682, *6. Similarly, in Grayson, the Eleventh Circuit held that
the facts giving rise to plaintiff’s complaint (in November 2002)
occurred years before he filed his lawsuit (November 2006).
Grayson, 491 F.3d at 1324.

 28
delay.” Pet. App. 18a. This is wrong, too. As Mr.
Arthur explained to the court of appeals (and the
district court), at the time of the Smith execution, Mr.
Arthur was subject to a stay of execution based on the
pendency of his petition for a writ of certiorari before
this Court in his Glossip action. See Arthur v. Dunn,
137 S. Ct. 14 (2016) (mem.). Given that four Justices
of this Court had indicated a likelihood of success on
his petition by granting the stay, commencing this
action in the meantime would have been a waste of the
parties’ and judicial resources.
Ultimately, Mr. Arthur’s petition was denied on
February 21, 2017, over the dissent of two Justices,
who would have granted certiorari and reversed.
Arthur v. Dunn, 137 S. Ct. 725 (2017) (mem.).
However, following this Court’s denial, a circuit split
emerged on two separate issues raised in Mr.
Arthur’s petition: (1) the evidentiary standard for
proving an alternative method of execution under
Glossip, see In re Ohio Execution Protocol Litig., 853
F.3d 822 (6th Cir. Apr. 6, 2017); and (2) whether an
alternative method of execution under Glossip needed
to be authorized by state law, see McGehee v.
Hutchinson, 854 F.3d 488, 493 (8th Cir. 2017). Given
that two Justices had already stated that Mr. Arthur’s
petition was worthy of certiorari, and two circuit
splits had arisen since that time, there was a
reasonable likelihood of this Court accepting Mr.
Arthur’s case for review. Nevertheless, Mr. Arthur’s
petition for rehearing was eventually denied on April
24, 2017. Arthur v. Dunn, 2017 WL 1427632 (U.S.
Apr. 24, 2017) (mem.).
While Mr. Arthur was
ultimately wrong about this Court granting certiorari
on his Glossip petition, his belief was far from

 29
unreasonable, as would be required for laches to
attach.
Following the final resolution of Mr. Arthur’s
Glossip claims on April 24, he timely filed the present
action approximately three weeks later, which, among
other things, required retention of an expert. See
App’x Tab 6-2. While the State can quibble with the
precise number of days Mr. Arthur’s pro bono counsel
took to prepare and file a complaint and supporting
evidence, this case hardly represents the type of
inexcusable delay that characterizes laches or
supports a denial of relief on equitable grounds.
Third, the court of appeals cannot justly contend
that Mr. Arthur failed to act after the Smith
execution. As described in the Complaint, eight days
after the Smith execution, on December 16, 2016, Mr.
Arthur made an open records request seeking the
ADOC’s records of the Smith execution. App’x Tab 1
¶ 39 & n. 13. The State waited until February 2, 2017,
to deny that request, after which Mr. Arthur
continued to seek the records through mandamus
proceedings in Alabama Circuit Court. App’x Tab 1 ¶
39 & n. 13. The Alabama Circuit Court heard oral
argument on the State’s motion to dismiss the action
and Mr. Arthur’s cross-motion for summary judgment
on May 15, and dismissed the case the same date,
upholding the State’s claim to the confidentiality of
the ADOC’s records of the Smith execution. Id. Mr.
Arthur brought this action the next day. See State of
Kansas v. State of Colorado, 514 U.S. 673, 687 (1995)
(“The defense of laches requires proof of . . . lack of
diligence by the party against whom the defense is
asserted.” (internal quotation marks omitted)).
Fourth, while Mr. Arthur did seek expedited relief
in this action, his claims are predominantly legal in

 30
nature, and the factual issues raised—Mr. Arthur’s
claim turns predominantly on the testimony of two
witnesses—could have been expeditiously resolved
with a short hearing prior to the execution date.
Finally, if it were appropriate to weigh “equitable
principles” in considering Mr. Arthur’s claim, Mr.
Arthur respectfully submits that the State’s delay and
refusal to timely produce the records of the Smith
execution to Mr. Arthur only exacerbated the
situation. The State should not be permitted to
stonewall fact-finding and then cry foul when
proceedings are delayed.
C. The court of appeals’ decision ultimately turns
on its oft-repeated criticism: “If [Mr. Arthur] truly
had intended to challenge Alabama's lethal injection
protocol, he would not have deliberately waited to file
suit until a decision on the merits would be impossible
without entry of a stay or an expedited litigation
schedule.” Pet. App. 18a (quoting Brooks v. Warden,
810 F.3d 812, 825 (11th Cir. 2016); Grayson, 491 F.3d
at 1326) (emphasis added). But even if this lawsuit
had been filed the day after Smith’s execution, an
“expedited litigation schedule” would have been
required. This Court need look no farther than the
petition for a writ of certiorari, also filed by Mr.
Arthur today, seeking review of the court of appeals’
decision in Arthur v. Dunn, No. 17-11879, slip op.
(11th Cir. May 24, 2017). That action was filed the
day after the cause of action accrued, on November 2,
2016.
Nevertheless, proceeding in the normal
course,19 the district court did not decide the case

19

Mr. Arthur had no grounds to expedite the case until April
4, 2017, when the Alabama Supreme Court set Mr. Arthur’s

 31
until April 12, 2017, the appeal was not fully briefed
(by order of the Eleventh Circuit) until May 18, 2017,
and a decision was not released until the afternoon of
May 24, 2017, the day before the execution. To hold
that a condemned inmates’ claims are barred by
laches or equitable principles unless they can be
decided without expedited proceedings, as the court of
appeals did, places an arbitrary bar on meritorious
legal challenges. That rule is manifestly unjust, and
would eviscerate the protections condemned inmates
are provided under the Constitution, meriting this
Court’s intervention.
III. THE DECISION BELOW CREATES A
CIRCUIT SPLIT ON WHETHER THE
FOURTEENTH AMENDMENT PERMITS A
STATE
TO
ARBITRARILY
APPLY
EXECUTION
SAFEGUARDS
TO
SOME
INMATES BUT NOT OTHERS.
A. “The Equal Protection Clause commands that
no State shall ‘deny to any person within its
jurisdiction the equal protection of the laws.’” Vacco
v. Quill, 521 U.S. 793, 799 (1997).
“[W]here
fundamental rights and liberties are asserted under
the Equal Protection Clause, classifications which
might invade or restrain them must be closely
scrutinized and carefully confined.” Harper v. Va.
State Bd. of Elections, 383 U.S. 663, 670 (1966). Even
where no suspect classification or fundamental right
is implicated, the State must still show that “there is a
rational relationship between the disparity of

execution date, but the district court released its decision a week
later.

 32
treatment and some legitimate governmental
purpose.” Heller v. Doe, 509 U.S. 312, 320 (1993).
As this Court has explained, “[p]rison walls do not
form a barrier separating prison inmates from the
protections of the Constitution.” Turner v. Safley,
482 U.S. 78, 84 (1987). Thus, prisoners, including
death row inmates, enjoy the protection of the
Fourteenth Amendment, and cannot be disparately
treated absent an appropriate justification.
See
Johnson v. California, 543 U.S. 499, 510 (2005); Lee v.
Washington, 390 U.S. 333, 333 (1968).
B. Condemned prisoners have a fundamental right
to be free from cruel and unusual punishment. See
Arthur v. Thomas, 674 F.3d 1257, 1263 (11th Cir.
2012) (“Arthur 2012”) (citing Baze, 553 U.S. at 49).
Alabama has voluntarily adopted a protocol that
contains a single safeguard protecting that right:
before the painful drugs are administered, an
execution
team
member
must
conduct
a
“consciousness assessment” to confirm that the
inmate is, in fact, unconscious and insensate. If the
inmate does not react, the execution can continue; if
the inmate does react, then the execution cannot
continue. Instead, if an inmate reacts after the
consciousness assessment, Alabama’s protocol calls
for an additional dose of midazolam, the purported
anesthetic, followed by an additional consciousness
assessment.
While Alabama may have followed this protocol
during the January 23, 2016 execution of Christopher
Brooks, it demonstrably failed to do so during the
December 8, 2016 Smith execution. According to
sworn eyewitness testimony, during the Smith
execution, Alabama conducted two consciousness
assessments, and after each one, Smith exhibited

 33
reactions showing that he was still conscious and
sensate—most significantly, he moved his arm away
from a pinch on both occasions. Despite Smith’s
reactions to the consciousness assessments, Alabama
violated its protocol by continuing with the execution,
injecting the second and third drugs. App’x Tab 6-1
¶¶ 8-11. Given Alabama’s recent flouting of its
protocol, it is highly likely that Mr. Arthur will
receive the same mistreatment.
See O’Shea v.
Littleton, 414 U.S. 488, 496 (1974) (“[P]ast wrongs are
evidence bearing on whether there is a real and
immediate threat of repeated injury.”).
Because Alabama’s disparate treatment implicates
Mr. Arthur’s fundamental rights, Alabama bears the
burden of showing that its unequal treatment—
protecting some inmates from severe pain and
suffering, but not others—advances some compelling
government interest. Not only do they fail to do that,
they advance no justification, which fails to satisfy
even rational basis review. See Cooey v. Kasich, 801
F. Supp. 2d 623, 653 (S.D. Ohio 2011) (“Mere pursuit
of administrative convenience that risks flawed
executions is not a legitimate state interest.”). Nor
could there be—what could possibly excuse exposing
one condemned inmate to the risk of an agonizing
death, but not another?
C.
As the Sixth Circuit (and previously the
Eleventh) has held, significant deviations from a
voluntarily-adopted protocol burdens an inmate’s
right to Equal Protection—“the State should do what
it agreed to do: in other words it should adhere to the
execution protocol it adopted.” Arthur 2012, 674 F.3d

 34
at 1263 (quoting In re Ohio Execution Protocol Litig.,
2012 WL 118322 (6th Cir. Jan. 13, 2012)). 20
The court of appeals below departed from this
authority, giving Alabama carte blanche to treat each
execution differently with no valid reason for doing
so. Indeed, the court of appeals completely
disregarded Mr. Arthur’s argument, relegating it to a
single vague footnote. Pet. App. 24a. This Court
should not permit the State to arbitrarily pick and
choose which condemned prisoners it will protect
from a cruel and unusual punishment, and which it
will not.

20

In addition to the Sixth and Eleventh Circuits, two
additional courts of appeals have considered the role of the Equal
Protection Clause in the context of execution protocol. Towery v.
Brewer, 672 F.3d 650, 660 (9th Cir. 2012); Wood v. Collier, 2016 WL
4750879, at *3-5 (5th Cir. Sept. 12, 2016). Accordingly, the time is
ripe for this Court’s review.

 35
CONCLUSION
For the reasons set forth above, the petition for a
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
(212) 506-2500

Counsel for Petitioner Thomas D. Arthur
MAY 25, 2017