No. 16-1408
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
Eleventh Circuit Court of Appeals
─────────────♦─────────────
BRIEF IN OPPOSITION

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

May 25, 2017

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

EXECUTION SCHEDULED FOR MAY 25, 2017

 CAPITAL CASE
QUESTION PRESENTED
(Rephrased)
1. Should this Court deny Arthur’s petition for
writ of certiorari where this Court only
recently denied certiorari on his method-ofexecution challenge and his current methodof-execution challenge was dismissed because
it was barred under the doctrines of laches
and res judicata?

 ii
TABLE OF CONTENTS
QUESTION PRESENTED .................................................. I
TABLE OF AUTHORITIES .............................................. IV
INTRODUCTION ..............................................................1
STATEMENT OF THE CASE .............................................3
A. The facts of Arthur’s crime, trial, and
appeals............................................................4
B. Arthur’s unreasonable delay in filing
another § 1983 method-of-execution
lawsuit raising the same facts and
legal theories as his prior Eighth
Amendment challenge. ..................................6
REASONS FOR DENYING THE PETITION.............9
I.

ARTHUR’S

PETITION FAILS TO PRESENT A

CERTWORTHY ISSUE.

II.

CERTIORARI

.............................................9

SHOULD BE DENIED BECAUSE

THE DISTRICT COURT PROPERLY DISMISSED

ARTHUR’S

COMPLAINT

BASED

ON

THE

DOCTRINE OF LACHES AND HIS INEQUITABLE
CONDUCT............................................................. 12

III. CERTIORARI

SHOULD BE DENIED BECAUSE

THE DISTRICT COURT CORRECTLY DISMISSED

ARTHUR’S EIGHTH AMENDMENT

CLAIM AS

BARRED BY THE DOCTRINE OF RES JUDICATA. ...... 18

 iii
IV. ALTERNATIVELY, ARTHUR’S CLAIMS ARE
MERITLESS. ......................................................... 25
A. Arthur’s Eighth Amendment claim is
time-barred and fails to state a claim. ........ 25
B. Arthur’s equal protection claims is
meritless. ...................................................... 28
CONCLUSION ............................................................... 30

 iv
TABLE OF AUTHORITIES
Cases
Arthur v. Allen, 1:07-cv-342-WS-C (S.D.
Ala. Aug. 10, 2007)...................................................4
Arthur v. Allen, 1:07-cv-722-WS-M (S.D.
Ala. Nov. 15, 2007)...................................................4
Arthur v. Allen, 248 F.App’x 128 (11th Cir.
2007) .........................................................................4
Arthur v. Comm’r., Ala. Dep’t. of Corrs.,
840 F.3d 1268 (11th Cir. 2016).................. 3, 6, 7, 12
Arthur v. Dunn, 137 S. Ct. 725 (2017) ........ 1, 9, 10, 16
Arthur v. King, 500 F.3d 1335 (11th Cir.
2007) ....................................................................... 13
Arthur v. State, 575 So. 2d 1165 (Ala.
Crim. App. 1990) .................................................. 4, 5
Arthur v. State, 711 So. 2d 1031 (Ala.
Crim. App. 1996) ......................................................5
Arthur v. Thomas, 739 F.3d 611 (11th Cir.
2014) .........................................................................3
Baze v. Rees, 553 U.S. 35 (2008) ....................... passim
DeYoung v. Owens, 646 F.3d 1319 (11th
Cir. 2011)................................................................ 29

 v
Ex parte Arthur, 472 So. 2d 665 (Ala. Apr.
5, 1985) .....................................................................5
Ex parte Arthur, 711 So. 2d 1097 (Ala.
1997) .........................................................................5
Glossip v. Gross, 135 S. Ct. 2736 (2015) ........... passim
Gomez v. U.S. Dist. Ct. for the N. Dist. of
Cal., 503 U.S. 653 (1992) ....................................... 11
Gray v. McAuliffe, No. 3:16-cv-982–HEH,
2017 WL 102970 (E.D. Va. Jan. 10,
2017) ....................................................................... 28
Grayson v. Allen, 491 F.3d 1318 (11th Cir.
2007) ................................................................. 13, 14
Grayson v. Warden, No. 16-17167, 2016
WL 7118393 (11th Cir. Dec. 7, 2016) .................... 27
Hill v. McDonough, 547 U.S. 573 (2006) ........ 1, 11, 12
In re Piper Aircraft Corp., 244 F.3d 1289
(11th Cir. 2001) ...................................................... 18
Jones v. Allen, 485 F.3d 635 (11th Cir.
2007) ................................................................. 13, 16
Ledford v. Comm’r, Ga. Dep’t. of Corrs.,
No. 17-12167 2017 WL 2104682 (11th
Cir. May 15, 2017) ................................................. 15

 vi
Ledford v. Dozier, No. 16-9179, 2017 WL
2123659 (May 16, 2017) ........................................ 15
Maldonado v. U.S. Atty. Gen., 664 F.3d
1369 (11th Cir. 2011) ............................................. 19
Mann v. Palmer, 713 F.3d 1306 (11th Cir.
2013) ................................................................. 18, 19
McNair v. Allen, 515 F.3d 1168 (11th Cir.
2008) ....................................................................... 25
Rutherford v. McDonough, 466 F.3d 970
(11th Cir. 2006) ...................................................... 13
United States v. Arthur, No. 86-5818, 1987
WL 37871 (6th Cir. June 30, 1987) .........................5
Whole Woman’s Health v. Hellerstedt, 136
S. Ct. 2292 (2016) ............................................ 22, 24
Statutes
42 U.S.C. § 1983 ..........................................................3

 INTRODUCTION
Thomas Arthur is once again before this Court on
the eve of his execution seeking a stay of his eighth
scheduled execution date. Despite the fact that this
Court only months ago denied certiorari on Arthur’s
third § 1983 method-of-execution challenge to
Alabama’s lethal injection protocol, his fifth in total,
Arthur v. Dunn, No. 16-602, 137 S. Ct. 725 (Feb. 21,
2017), Arthur yet again seeks certiorari from this
Court on another § 1983 action challenging the same
lethal-injection protocol.
Nine days before his
scheduled execution date, Arthur concocted another
Eighth Amendment claim to Alabama’s lethal
injection protocol, and filed his seventh § 1983 action
in the Southern District of Alabama. Although the
Middle District oversaw Arthur’s fifth § 1983 from
2011–2016 and was intimately familiar with his
arguments concerning Alabama’s method of
execution, he picked a different venue for this
method-of-execution
challenge—an
act
of
gamesmanship that the district court below found
“smacks of forum-shopping.” Doc. 13 at 2.
This Court cannot reach the questions presented
by Arthur because his claims are barred from review
on procedural and equitable grounds. First, the
district court dismissed Arthur’s complaint under the
doctrine of laches, properly applying the “equitable
power[] to dismiss suits . . . filed too late in the day,”
which this Court described in Hill v. McDonough,
547 U.S. 573, 584 (2006). The lower court held that
there was “no possible justification” for Arthur’s
delay in filing his lawsuit nine days before his
execution, particularly given that he could have
raised his current iteration of his Eighth
Amendment claim in his previous method-of-

 2
execution lawsuit, and, therefore, that “Arthur bears
sole
responsibility
for
this
unreasonable,
unnecessary, and inexcusable delay in brining suit.”
Doc.13 at 9.
Second, Arthur’s claims are barred by res
judicata. As the lower courts correctly held, Arthur’s
complaint raised the same cause of action as his
previous method-of-execution challenge which this
Court denied certiorari in February, despite Arthur’s
attempt to argue that his current complaint relied on
a different legal standard articulated in a concurring
opinion in Baze v. Rees, 553 U.S. 35, 96 (2008)
(Thomas, J., concurring). Doc. 1 at 3. Because
Arthur’s current Eighth Amendment claim could
have been raised in his prior method-of-execution
challenge, as he relied on a common nucleus of
operative
facts—allegations
concerning
prior
executions—in both lawsuits, his current complaint
is barred by the doctrine of res judicata.
The lower courts’ reasoning not only establishes
that Arthur’s complaint was properly dismissed but
also highlights substantial procedural and vehicle
problems requiring that certiorari be denied.
Although these problems insulate this case from
review, Arthur’s claim is meritless in any event. His
claim is fundamentally flawed, as concurring and
dissenting
opinions
are
not
the
relevant
constitutional standard in this case; rather, this case
is governed by the controlling opinion in Baze and
this Court’s opinion in Glossip v. Gross, 135 S. Ct.
2736 (2015). As Arthur readily admits, his complaint
alleges no known and available alternative method of
execution, a required element under Baze and

 3
Glossip. In any event, Arthur alleges no facts that
would show that Alabama’s lethal injection protocol
was purposely designed to inflict pain and suffering.
Thus, the petition should be denied.
STATEMENT OF THE CASE
This appeal arises from the United States District
Court for the Southern District of Alabama’s
dismissal of Thomas D. Arthur’s seventh 42 U.S.C. §
1983 action overall, and his fourth § 1983 method-ofexecution challenge aimed at stopping the State of
Alabama from executing him using its lethal
injection protocol. Doc. 1, Doc. 13 at 1. Arthur’s
postconviction litigation history is notorious. Since
2001, Arthur has filed three successive state Rule 32
petitions, attempted a successive federal habeas
petitions, two state civil actions, and, including the
matter now before this Court, a whopping seven §
1983 complaints, which does not include the § 1983
complaint his daughter filed on his behalf. See
Arthur v. Comm’r., Ala. Dep’t. of Corrs., 840 F.3d
1268, 1272–78 (11th Cir. 2016); Arthur v. Thomas,
739 F.3d 611, 612–27 (11th Cir. 2014).
Given that Arthur today is facing the eighth
setting of his execution for the brutal murder of Troy
Wicker, he is well versed in the inequitable art of
filing eleventh-hour lawsuits on the eve of his
execution dates. As far back as August 2007, Arthur
filed a last-minute method-of-execution challenge
(his second § 1983), which the district court
dismissed on the doctrine of laches “[b]ecause the
plaintiff unreasonably delayed in bringing this
action,” where Arthur waited until after the State
moved to set his execution date. Arthur v. Allen,

 4
1:07-cv-342-WS-C, at 7–9 (S.D. Ala. Aug. 10, 2007),
Doc. 19, aff’d, Arthur v. Allen, 248 F.App’x 128 (11th
Cir. 2007). Three months later, Arthur’s third § 1983
was also dismissed as meritless, previously litigated,
and unreasonably late. Arthur v. Allen, 1:07-cv-722WS-M, at 4 (S.D. Ala. Nov. 15, 2007), Doc. 22
(citations and footnotes omitted).
Undaunted, Arthur has continued to employ this
same tactic of filing to stop his execution. Last
November, on the day before his seventh execution
date, Arthur filed his sixth § 1983 in the Middle
District, then used that new (and frivolous) suit as
grounds for an unsuccessful stay request. See Order,
Arthur v. Dunn, 2:16-cv-866-WKW (M.D. Ala. Nov. 3,
2016), Doc. 10 (denying temporary restraining
order). As shown below, Arthur’s current case is no
exception.
A. The facts of Arthur’s crime, trial, and
appeals.
On February 1, 1982, Arthur murdered Troy
Wicker by shooting him through the right eye while
Troy lay asleep in bed. Arthur v. State, 575 So. 2d
1165, 1168–69 (Ala. Crim. App. 1990). He did so at
the request of Judy Wicker, the victim’s wife and
Arthur’s paramour, who conspired with her sister
and Arthur to kill Troy. Wicker received $90,000 in
insurance proceeds, and she paid Arthur before and
after the murder for his assistance. Id. at 1167–68.
On the morning of the shooting, Arthur left work
release—he was then serving time for the 1977
murder of his sister-in-law, Eloise Bray, whom he
also shot through the eye—and met Wicker. Ex

 5
parte Arthur, 711 So. 2d 1097, 1098 (Ala. 1997); Ex
parte Arthur, 472 So. 2d 665, 669 (Ala. Apr. 5, 1985).
Arthur disguised himself in blackface, including
darkening his skin and donning an Afro wig, then
drove with Wicker to her home. He ransacked the
house and beat Wicker to stage the scene as a home
invasion gone wrong, and he shot Troy, who had
been drugged to sleep through the commotion.
Arthur, 575 So. 2d at 1168.
Arthur was convicted in Colbert County in 1983
and sentenced to death, but the Alabama Supreme
Court ordered a new trial due to an evidentiary
error. Arthur v. State, 472 So. 2d 650 (Ala. Crim.
App. 1984); Ex parte Arthur, 472 So. 2d 665 (Ala.
1985).
In 1986, while awaiting retrial, Arthur
escaped from the Colbert County Jail by shooting a
guard in the neck, then robbed a bank before he was
recaptured. See United States v. Arthur, No. 865818, 1987 WL 37871 (6th Cir. June 30, 1987).
Arthur was twice retried, both times in Jefferson
County. In each case, the jury convicted him of
capital murder and recommended that he be
sentenced to death—a sentence Arthur requested.
Arthur v. State, 575 So. 2d 1165 (Ala. Crim. App.
1990); Arthur v. State, 711 So. 2d 1031, 1087–90
(Ala. Crim. App. 1996); Ex parte Arthur, 711 So. 2d
1097 (Ala. 1997). His conviction was final in 1998,
and by 2000, both the federal and state statutes of
limitation had expired.

 6
B. Arthur’s unreasonable delay in filing
another § 1983 method-of-execution
lawsuit raising the same facts and legal
theories as his prior Eighth Amendment
challenge.
Arthur filed his current lawsuit on May 16. Doc.
1. But since it adopted lethal injection as its primary
method of execution in 2002, Alabama has always
employed a three-drug protocol. “From September
11, 2014, until the present, Alabama has used
midazolam as the first drug in the series.” Arthur,
840 F.3d at 1274. In January and December 2016,
Alabama carried out two executions using this
protocol. Despite referencing these executions in
pleadings in another case several months ago,
Arthur did not file any new lawsuit based on these
executions.1 On February 22, 2017, the State of
Alabama moved to set Arthur’s execution date. See
Notice of Filing, Arthur v. Dunn, No. 2:16-cv-866WKW (M.D. Ala.), Doc. 30. On April 4, the Alabama
Supreme Court set Arthur’s execution date for May
25. See Notice of Filing, Arthur v. Dunn, No. 2:16-cv866-WKW (M.D. Ala.), Doc. 31.
On the evening of May 16, barely nine days prior
to his execution date, Arthur filed the instant
complaint, raising an Eighth Amendment claim and
an equal protection claim. Doc. 1. This lawsuit came
nearly thirty-two months after the ADOC adopted its
midazolam protocol, sixteen and five months
respectively after Alabama carried out two
See Complaint ¶ 14, Arthur v. Dunn, No. 2:16-cv-866-WKW
(M.D. Ala. Nov. 2, 2016), Doc. 1; Reply at 3–4, Arthur v. Dunn,
No. 2:16-cv-866-WKW (M.D. Ala. Nov. 2, 2016), Doc. 20.

1

 7
executions pursuant to this protocol, three months
after the State moved to set Arthur’s execution date,
and over a month after the Alabama Supreme Court
set his execution date. Notably, despite the recent
protracted litigation in the Middle District
concerning Arthur’s method-of-execution challenge
and that court’s familiarity with the ADOC’s
protocol, Arthur choose to file his seventh § 1983 in
the Southern District, an act that the district court
found “smacks of forum-shopping.” Doc. 13 at 2 n. 2.
While acknowledging that he had recently been
denied relief on an Eighth Amendment claim, Arthur
alleged that “[b]ased on its experience with the
execution of Ronald Smith, as well as other recent
executions in Virginia and Arkansas,” the ADOC
protocol was “purposely designed to inflict pain and
suffering beyond that necessary to cause death.”
Doc. 1 at 14 (citing Baze, 553 U.S. at 96 (Thomas J.,
concurring)).
Although Arthur alleged that his Eighth
Amendment claim was different than what he had
alleged in his previous lawsuit, a review of his
allegations reveals that his current claim stems from
the same operative set of facts and legal theories
that he presented in his Eighth Amendment claim in
his prior method-of-execution challenge. Arthur filed
his prior § 1983, which challenged the ADOC’s
lethal-injection protocol, in June 2011. Arthur, 840
F.3d at 1275. This lawsuit spurred over five years of
litigation, involved “lengthy discovery,” and
culminated in “a two-day trial,” after which the
district court “entered two comprehensive orders
denying Arthur § 1983 relief.” Id. at 1272. While
the lawsuit began as a challenge to the ADOC’s use

 8
of pentobarbital as the first drug in its protocol, after
pentobarbital became unavailable to the ADOC, he
responded by amending his complaint to allege,
among other things, that the ADOC’s use of
midazolam as the first drug in its protocol was cruel
and unusual. Id. at 1276.
As in his prior challenge, Arthur now alleges that
midazolam is a sedative that is “primarily used for
treating anxiety,” is “not approved for use as a standalone general anesthetic,” and is subject to a “ceiling
effect.”
Compare Doc. 1 ¶¶ 25–26 with Third
Amended Complaint ¶¶91, 94, 96, Arthur v. Dunn,
No. 2:11-cv-438-WKW (M.D. Ala. Oct. 13, 2015), Doc.
267 (hereinafter “Doc. 267”) (alleging that midazolam
was from “a family of drugs used to treat anxiety,” “is
not used clinically as a stand-alone anesthetic,” and
“will be subject to a ‘ceiling effect.’”). And as in his
prior lawsuit, Arthur cites news reports of four
executions in which he contends inmates had
difficulty breathing, made movements, coughed, and
gasped—here, the December 2016 execution of
Ronald Smith, the January 2017 execution of
Virginia inmate Ricky Gray, and the April 2017
executions of Arkansas inmates Jack Jones and
Kenneth Williams. Compare Doc. 1 ¶¶ 37–42 with
Doc. 267 ¶¶ 103–07 (citing to the October 2013
execution of Florida inmate William Happ, the
January 2014 execution of Ohio inmate Dennis
McGuire, the April 2014 execution of Clayton
Lockett, and the July 2014 execution of Joseph
Wood, alleging that they “made an unusual number
of body movements,” “struggled,” “gasped for air and
choked.”). Almost as an “afterthought,” Arthur also
raised an equal protection claim, contending that the

 9
ADOC deviated from its protocol by administering
the second and third drugs in the protocol despite the
fact that, according to Arthur Smith was not
insensate. Doc. 13 at 11 n. 10.
On May 18, the district court dismissed Arthur’s
complaint sua sponte “on the separate and
independent grounds of res judicata and the special
equitable
principles
governing
eleventh-hour
method-of-execution challenges brought by deathrow inmates.” Doc. 13 at 11. The Eleventh Circuit
affirmed on May 25 with no dissents.
REASONS FOR DENYING THE PETITION
I. ARTHUR’S

PETITION

FAILS

TO

PRESENT

A

CERTWORTHY ISSUE.

Although Arthur is scheduled for execution, his
case is not extraordinary. In fact, his case is fraught
with issues that make it a particularly bad case to
consider for certiorari review.
First and foremost, this Court denied certiorari
on Arthur’s § 1983 method-of-execution challenge to
Alabama’s midazolam protocol barely three months
ago. Arthur v. Dunn, No. 16-602, 137 S. Ct. 725
(Feb. 21, 2017). Arthur’s attempt to resurrect the
same substantive claims in his most recent methodof-execution challenge is simply an improper attempt
to yet again delay his sentence. Arthur contends his
current complaint is different because he now
includes allegations from the December 2016
execution of Ronald Smith.2 But this Court was
The State vehemently disputes Arthur’s allegations that
Smith’s execution was botched, that Smith was conscious after

2

 10
aware of those factual allegations when it denied
certiorari. See Arthur, 137 S. Ct. at 733 (Sotomayor,
J., dissenting) (referencing Smith execution). Yet
again, Arthur seeks review of the three-drug lethal
injection protocol this Court upheld as constitutional
in Glossip. Thus, thus there is no compelling reason
for this Court to grant certiorari.
Second, the disposition of Arthur’s case below on
the grounds of laches and res judicata bars certiorari
review, as the district court did not address the
merits of Arthur’s complaint. See Doc. 13 at 9 n.9.
Thus, this Court cannot reach the merits of the
question presented, and this Court should not grant
certiorari where it was unnecessary for the lower
courts to address the merits in the first instance.
Indeed, Arthur fails to identify any split of authority
of the lower courts’ application of the doctrines of
laches and res judicata that this Court could resolve.
Moreover, the question presented is a fact-bound
issue limited to the unique facts of Arthur’s case.
The disposition of the case below centered on facts
that apply only to Arthur, namely his delay in filing
his
current
method-of-execution
challenge,
particularly in relation to his prior litigation history
concerning method-of-execution challenges. Doc. 13
the consciousness assessments were conducted, and that Smith
suffered any pain. Arthur’s allegations come from one witness–
one of Smith’s attorneys who continues to represent Smith’s coplaintiffs in litigation–and the State has not yet had an
opportunity to refute these exaggerated claims. But it is not
necessary to resolve that dispute here because Arthur is not
entitled to certiorari as his complaint was properly dismissed
on the separate and independent grounds of laches and res
judicata. Doc. 13.

 11
at 1–3. Further, the disposition of Arthur’s case
centered on an analysis of the factual allegations in
his complaint which demonstrated that his current
complaint was the “same cause of action” as his prior
method-of-execution challenge and thus, was barred
by res judicata. Id. at 5-6. Neither of these issues,
limited to the facts of Arthur’s case, merits certiorari
review.
Finally, another reason that there is no basis for
certiorari review is Arthur’s clear-cut litigation
history which demonstrates that he is using § 1983
actions as a means to thwart and delay his sentence.
This Court has noted “the State's strong interest in
enforcing its criminal judgments without undue
interference from the federal courts,” and has stated
that “federal courts can and should protect States
from dilatory or speculative suits.” Hill, 547 U.S. at
584-85. This Court has also noted the inequity of
inmates facing execution using multiple federal
actions to cause delay, and that such inequitable
conduct precludes a review on the merits. See Gomez
v. U.S. Dist. Ct. for the N. Dist. of Cal., 503 U.S. 653
(1992) (noting that inmate’s four prior federal habeas
petitions were an “obvious attempt” to avoid
application of a bar to his claims). In Gomez, this
Court held that “[w]hether [the inmate’s] claim is
framed as a habeas petition or as a § 1983 action,”
the Court held that it “would not consider it on the
merits” after taking “into consideration the State's
strong interest in proceeding with its judgment and
Harris’ obvious attempt at manipulation.”). Id. at
653-54 (“There is no good reason for this abusive
delay, which has been compounded by last-minute
attempts to manipulate the judicial process.”).

 12
In similar fashion, Arthur has filed seven § 1983
lawsuits, four of which challenged Alabama’s method
of execution. Through these actions, “[f]or years,
Arthur challenged the prior drugs used in Alabama’s
lethal-injection protocol, and when those drugs
became unavailable, he challenged Alabama’s
current midazolam protocol. Arthur, 840 F.3d at
1273. Arthur’s last method-of-execution challenge to
Alabama’s protocol was denied on the merits, and
certiorari was denied. His most recent complaint,
filed barely nine days before his execution, is an
“obvious attempt” to avoid the fact that his previous
claim was denied on the merits, as well as to avoid
the governing standard of Baze and Glossip. There
is no good reason for this delay or tactics and these
reasons alone are sufficient to deny certiorari.
II. CERTIORARI

SHOULD BE DENIED BECAUSE THE

DISTRICT COURT PROPERLY DISMISSED

ARTHUR’S

COMPLAINT BASED ON THE DOCTRINE OF LACHES
AND HIS INEQUITABLE CONDUCT.

This Court has held that courts must “be
sensitive to the State's strong interest in enforcing
its criminal judgments without undue interference
from the federal courts.” Hill, 547 U.S. at 584
(noting that “a number of federal courts have
invoked their equitable powers to dismiss suits they
saw as speculative or filed too late in the day.”). The
Court recognized the “significant” problem created by
raising last-minute method-of-execution challenges
and has held that “federal courts can and should
protect States from dilatory or speculative suits[.]”
Id. at 585.

 13
In compliance with Hill, the Eleventh Circuit
properly affirmed the district court’s dismissal of the
complaint “because of Arthur’s unnecessary and
unreasonable delay in filing his Complaint.” Doc. 13
at 9. As the Eleventh Circuit correctly held, the
district court carefully adhered to long-standing
circuit precedent applying this Court’s guidance in
Hill. Op. at 16-17 (citing Arthur v. King, 500 F.3d
1335, 1341 (11th Cir. 2007) (“In considering the
dismissal of a § 1983 challenge, courts are to apply
equitable principles which mandate dismissal when
the plaintiff ‘delayed unnecessarily in bringing the
claim, . . . knowing full well that the discovery,
evidentiary hearing, and decision on the merits that
he demands could not possibly be accomplished’
within the short period of time between filing and
the scheduled execution date.”) (quoting Rutherford
v. McDonough, 466 F.3d 970, 974 (11th Cir. 2006));
see also Grayson v. Allen, 491 F.3d 1318 (11th Cir.
2007); Jones v. Allen, 485 F.3d 635 (11th Cir. 2007).
Incredibly, Arthur waited until May 16—nine
days before his execution—to file his complaint.
Noting that “Arthur’s last § 1983 method-ofexecution challenge took five years to resolve,” the
district court held that Arthur “needlessly placed
this Court, the appellate courts, and the State in a
terrible bind,” and that “Arthur bears sole
responsibility for this unreasonable, unnecessary
and inexcusable delay in bringing this suit[.]” Doc.
13 at 7, 9. As the district court noted, “either the
entire case (from the filing of the Complaint through
final judgment and all associated appeals) will need
to be completed in eight days on an
emergency/expedited basis, or his execution date will

 14
need to be stayed[.]” Doc. 13 at 7; see also Grayson,
491 F.3d at 1326 (“If Grayson 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.”).
Further, as the district court correctly noted,
nothing prevented Arthur from raising his current
Eighth Amendment claim in his previous §1983 as
the basis for his claim was “known and available to
him long before now.” Doc. 13 at 7. Arthur is aware
that Alabama has employed its current lethalinjection protocol since 2014. Id. at 7 n.6. As the
district court noted, Arthur’s current claim is based
on what he contends is “the State’s intent to execute
Mr. Arthur using a method the State knows will
cause pain.” Id. at 6 n.6 (citing Doc. 1 ¶1). In
support, Arthur’s complaint relies on a concurring
opinion from the 2008 decision in Baze. Doc. 1 ¶7
(citing Baze, 553 U.S. at 96 (Thomas, J., concurring)).
But there is no reason that Arthur could not have
also made this legal argument “as part and parcel of
his previous § 1983 method-of-execution lawsuit in
the Middle District of Alabama from 2011 through
2016.” Doc. 13 at 9. Indeed, the factual allegations
for this claim were also available to Arthur long ago.
His contention that the ADOC had “actual
knowledge” that its protocol will cause pain, based on
what alleges were “botched” executions in Alabama
and Arkansas, Doc. 1 ¶7, could have just as easily
been raised in his prior lawsuit, where he also
alleged that the use of midazolam would cause pain
based on alleged “botched” executions. See Doc. 267
¶¶ 102–07.

 15
Moreover, as the district court correctly noted,
Arthur had grounds to argue that the State had
“knowledge” about its protocol “at the absolute
latest” from the Christopher Brooks execution in
January 16. Doc. 13 at 7 n.6. Any argument from
Arthur that he could not have raised such a claim by
that point is simply disingenuous, as Arthur
specifically referenced the Brooks execution in a
lawsuit he filed on November 2, 2016, one day prior
to his most recent execution date, where he asserted
that “Mr. Brooks exhibited body movements
indicating
that
he
was
not
adequately
anesthetized[,.]” See Complaint ¶ 14, Arthur v.
Dunn, No. 2:16-CV-866-WKW (M.D. Ala. Nov. 2,
2016), Doc. 1. Further, even if Arthur were right in
arguing that his claim arose after the December 2016
Smith execution (which he is not), he still
unreasonably delayed. Arthur could have filed this §
1983 complaint before the end of that year. Instead,
he waited until nine days before his execution date, a
delay almost identical to the situation in Ledford,
where the inmate waited until five days before his
execution to file. Ledford v. Comm’r, Ga. Dep’t. of
Corrs., No. 17-12167 2017 WL 2104682, at *6 (11th
Cir. May 15, 2017), cert denied Ledford v. Dozier, No.
16-9179, 2017 WL 2123659 (May 16, 2017). To be
sure, Arthur is in an even worse position than the
inmate in Ledford, as his history of delay and
eleventh-hour tactics magnifies his inequitable
conduct here.
Having failed to offer any real
justification as to why he could not have brought this
§ 1983 action at an earlier time, Arthur’s dilatory
filing “‘leaves little doubt that the real purpose
behind his claim is to seek a delay of his execution,

 16
not merely to effect an alteration of the manner in
which it is carried out.’” Jones, 485 F.3d at 640
(citation omitted).
Arthur’s attempt to suggest reasons for his delay
was correctly rejected by the Eleventh Circuit and
further highlights that he unreasonable delayed.
Arthur suggests that at the time of Smith’s execution
in December 2016, he was subject to a stay of
execution from this Court while it considered his
petition for writ of certiorari. This contention is both
inconsistent and meritless.
If Arthur’s Eighth
Amendment claim truly was a “new theory,” as he
suggests, then his cert petition concerning his prior §
1983 action should have been no impediment to filing
his lawsuit. Moreover, the fact that Arthur now
contends that he strategically choose to pursue a
certain avenue for relief, instead of pursuing the
claim he now presses, confirms that he unreasonably
delayed. In any event, this Court denied certiorari in
that case on February 21, Arthur v. Dunn, 137 S. Ct.
725 (2017), yet Arthur unreasonably waited nearly
three months to file this lawsuit. Nor does the fact
that Arthur choose to file a petition for rehearing in
that case serve to excuse his delay, as the grounds on
which he sought rehearing—the standard for proving
an alternative method of execution under Glossip—
is, in Arthur’s view not implicated here because he
contends that he does not need to plead an
alternative in his current complaint. Doc. 1 at 3.
Indeed, Arthur’s attempt to invoke a circuit split as
excuse for his delay it utterly meritless. The issues
Arthur discusses from those cases, concerning
alternative methods of execution, are not even
implicated here because Arthur contends that he

 17
does not need to plead and prove an alternative
method. Moreover, the Sixth Circuit panel’s decision
was vacated pending rehearing en banc, In Re: Ohio
Execution Protocol, No. 17-3076, 2017 WL 1457946
(6th Cir. April 25, 2017), and the Eighth Circuit
largely agreed with the Eleventh Circuit.
See
McGehee v. Hutchison, 854 F.3d 488, 493 (8th Cir.
2017) (“we concur with the Eleventh Circuit that the
State must have access to the alternative and be able
to carry out the alternative method relatively easily
and reasonably quickly.”). These invented reasons do
not justify Arthur’s delay.
Further, Arthur’s contention that he was diligent
because he unsuccessfully pursued a state law open
records request for records pertaining to Smith’s
execution is equally unavailing.
Filing a state
lawsuit pertaining to a state open records act has no
bearing on whether Arthur diligently pursued a
claimed violation of federal law in a § 1983 action,
and Arthur has offered no conceivable reason why he
could not have filed his current complaint
concurrently with or even before his state open
records request, or why his current lawsuit was
dependent on the state request.
Indeed, he
ultimately filed his untimely complaint without
being successful in his state lawsuit. His complaint
raised factual allegations about the Smith execution
based on an affidavit that was executed over five
months ago on December 13, 2016—clearly, Arthur
did not need the documents he sought in state court
to file his federal lawsuit. See Doc. 1-1 at 3. There is
simply no reason that Arthur could not have raised
this challenge long ago. Because the Eleventh Circuit
was correct in holding that Arthur’s complaint was

 18
barred based on his unreasonable delay, certiorari
should be denied.
III. CERTIORARI
DISTRICT

SHOULD BE DENIED BECAUSE THE

COURT

CORRECTLY

ARTHUR’S EIGHTH AMENDMENT

DISMISSED
CLAIM

AS

BARRED BY THE DOCTRINE OF RES JUDICATA.

Arthur’s Eighth Amendment claim is barred by
res judicata, based on his unsuccessful litigation in
the Middle District of Alabama, which ended last
year (the fifth § 1983). In that prior litigation, Arthur
challenged Alabama’s lethal injection protocol on
both Eighth Amendment and Equal Protection
grounds. Thus, res judicata acts as a bar to the
present complaint.
“[A] party seeking to invoke the doctrine [of res
judicata] must establish its propriety by satisfying
four initial elements: (1) the prior decision must have
been rendered by a court of competent jurisdiction;
(2) there must have been a final judgment on the
merits; (3) both cases must involve the same parties
or their privies; and (4) both cases must involve the
same causes of action.” Mann v. Palmer, 713 F.3d
1306, 1311 (11th Cir. 2013) (quoting In re Piper
Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001)).
Once these factors are established, a court must
determine whether the claim could have been raised
in the prior action. If the claim could have been
raised in the earlier action, res judicata applies. Id.
Here, the district court correctly held that there
was no reasonable dispute that the first three
elements of res judicata were satisfied. Doc. 13 at 3.
Not even Arthur, with his storied history of abusive

 19
litigation tactics, disputes that finding. As such, the
pivotal question is whether Arthur’s present
complaint presents the same causes of action as his
complaint in the fifth § 1983. “In determining
whether the two causes of action are the same, a
court must compare the substance of the actions, not
their form.” Mann, 713 F.3d at 1311. As the district
court noted, res judicata “extends beyond the precise
claims litigated in the prior action, and ‘bars the
parties to a prior action from re-litigating a cause of
action that was or could have been raised in that
action.” Doc. 13 at 4 (emphasis in original) (citing
Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1377
(11th Cir. 2011)).
The district court held that Arthur presented the
same cause of action in his current complaint as he
did in his prior method-of-execution challenge,
rejecting Arthur’s attempt to differentiate his
current complaint by the fact that he referenced the
December 2016 execution of Ronald Smith. Doc. 13
at 4–6. The court held that “[t]he fundamental
defect in [Arthur’s] attempt to circumvent the
preclusive effects of res judicata is that there is
nothing new or different about these ‘new’ factual
allegations.” Doc. 13 at 5. The court correctly noted
that Arthur and other inmates had long been filing
pleadings in method-of-execution challenges based
on purported “botched executions” and that his
current allegations were “simply more of the same.”
Id.
The district court’s findings were correct, and a
comparison of Arthur’s present causes of action to
those in his fifth § 1983 in the Middle District

 20
establishes that the substance of Arthur’s previous
action is the same as that now presented to this
Court. In the prior litigation, as here, Arthur alleges
that the ADOC intended to violate his right to be free
from cruel and unusual punishment under the
Eighth Amendment. Compare Doc. 267 at 4 with
Doc. 1 at 1. At a minimum, the only difference
between Arthur’s Eighth Amendment cause of action
in the fifth § 1983 and the present case is that
Arthur has slightly changed his accusation from
being that the State was ignoring a “high likelihood
that [Arthur] will experience pain and suffering,”
Doc. 267 at 28, to being that the State is deliberately
using a method it knows to cause pain and suffering.
Doc. 1 at 2. For all intents and purposes, Arthur’s
prior allegation that Alabama officials were ignoring
“an objectively intolerable risk that Mr. Arthur will
not be adequately anesthetized before the second and
third lethal injection drugs have been administered,”
Doc. 267 at 33, is equivalent to his present allegation
that Alabama’s conduct is “intentional” because it
ignores “botched” executions. Doc. 1 at 2.
While it may be true that the Smith execution
and other executions in Arkansas occurred after the
conclusion of Arthur’s fifth § 1983, it does not alter
the nature of his claim. As the district court
correctly noted, Arthur’s previous method-ofexecution challenge was based on his allegation that
“[f]our recent executions demonstrate that when
used as the first drug in a lethal injection,
midazolam will fail to anesthetize the inmate.” Doc.
13 at 5 (citing Doc. 267 at 34). In that prior litigation,
Arthur sought to use the executions of Florida
inmate William Happ, Ohio inmate Dennis McGuire,

 21
Oklahoma inmate Clayton Locket, and Arizona
inmate Joseph Wood as evidence that the use of
midazolam is unconstitutional in a multi-drug lethalinjection protocol. Doc. 267 at 34. Arthur pleaded in
the prior litigation that “as recent executions
involving midazolam confirm, there is a high
likelihood that midazolam will wear off before the
second and third lethal injection drugs have been
completely administered.” Doc. 267 at 30.
The fifth § 1983 clearly challenged Alabama’s
“proposed use of a three-drug protocol that has been
shown to cause severe harm.” Doc. 267 at 38. There,
as here, Arthur’s theory was that Alabama was
ignoring evidence from other executions. As a result
of this evidence, Arthur alleged that Alabama was
intentionally acting under color of state law to
execute him through the use of an insufficient,
improperly designed and improperly administered
procedure for inducing and maintaining loss of
consciousness and loss of sensation, along with the
use of chemicals that cause severe pain. Doc. 267 at
51. Arthur even alleged that the State would
undertake these efforts while using chemicals
“specifically and for no other purpose than to mask”
his severe pain. Doc. 267 at 51. Thus, in both causes
of action, Arthur alleged that Alabama intended to
execute him using a protocol that it (in his opinion)
knew would result in the infliction of pain and
suffering.
Further, the following comparison of allegations
contained in Arthur’s complaints demonstrates that
Arthur presents the same Eighth Amendment claim
to this Court that he presented in the fifth § 1983:

 22
• Midazolam is a sedative that is part of the family
of drugs called benzodiazepines, which are
primarily used for treating anxiety. It is not
approved for use as a stand-alone anesthetic.
Compare Doc. 267 at 26, 29 with Doc. 1 at 7.
• Midazolam is subject to a “ceiling effect,” meaning
there is a level after which no additional dose of
midazolam will have any impact on the inmate.
Compare Doc. 267 at 30, with Doc. 1 at 7.
• Alabama’s protocol creates a risk that if the
inmate is not sufficiently anesthetized, he will
experience excruciating pain that he is unable to
communicate due to paralysis. Compare Doc. 267
at 27, 29, with Doc. 1 at 8..
Accordingly, Arthur’s contention that he could not
have raised his new lawsuit earlier because it is
premised on the December 2016 Smith execution, is
meritless. Arthur’s allegations concerning the Smith
execution and the other executions “are of similar
substance and tenor as those set forth in the
pleadings in his prior method-of-execution lawsuit in
the Middle District of Alabama.” Doc. 13 at 5.
Indeed, under Arthur’s theory, the doctrine of res
judicata would be rendered meaningless, as there
would likely always be an execution that would occur
after a method-of-execution challenge was resolved,
regardless of how many allegations concerning
“botched” executions were raised in the prior lawsuit.
Arthur’s reliance on Whole Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292 (2016) is misplaced, as
that case is wholly distinguishable. In Hellerstedt,
the plaintiffs’ previous challenge involved a facial

 23
challenge seeking to invalidate a state law
admitting-privileges provision for abortion providers.
Id. at 2300, 2305. But the plaintiffs’ current lawsuit
involved an as-applied challenge relating to specific
physicians at two specific clinics in two separate
towns, and thus, this Court held that the two
lawsuits did not involve “the very same claim.” Id. at
2301, 2305. In contrast, Arthur’s current method-ofexecution challenge involved “the very same claim”
as his prior method-of-execution challenge. They
allege the same cause of action and seek the same
relief.
Both lawsuits assert identical causes of
action—namely, that the ADOC’s midazolam
protocol violated the Eighth Amendment through:
“(i) the use of an insufficient[,] improperly
designed
[and
improperly
administered]
procedure for inducing and maintaining loss of
consciousness and loss of sensation prior to
execution, and
(ii) the use of chemicals that cause severe pain in
the process of causing death, in conjunction with
chemicals used specifically and for no other
purpose than to mask that severe pain[.]”
Compare Doc. 1 ¶49 with Doc. 267 ¶155. Both
lawsuits sought identical relief: to “[e]njoin
Defendants from executing Mr. Arthur with
inadequate anesthesia and execution procedures
that violate Mr. Arthur’s right to be free from cruel
and unusual punishment under the Eighth
Amendment[.]” Compare Doc. 1 at 17 with Doc. 267
at 52.

 24
Moreover, Arthur’s latest complaint does not
present “new material facts” or “changed
circumstances” as was the case in Hellerstedt, 136 S.
Ct. at 2306. As the district court correctly found,
“Arthur and other inmates have long been filing
pleadings in § 1983 method-of-execution challenges
citing factual allegations relating to ‘botched
executions’ where midazolam has purportedly not
had the anticipated or expected anesthetic effect of
rendering an inmate unconscious.” Doc. 13 at 5.
Indeed, the district court meticulously detailed
Arthur’s complaint from his prior method-ofexecution challenge in which he alleged four
executions using midazolam failed to adequately
anesthetize the inmate because the inmate’s “made
an unusual number of body movements,” and “began
to writhe and gasp,”—similar to the allegations
Arthur raises in his current complaint. Id. The fact
that Arthur’s current complaint makes allegations
concerning the Smith execution in December 2016
does not change this result, as such allegations “are
simply more of the same, a continuation of
substantially similar factual allegations set forth in
his pleadings in his previous Eighth Amendment
challenge to Alabama’s method of execution.” Id.
Arthur has simply updated his factual allegations in
reviving an old claim for which he was unsuccessful
in obtaining relief.

 25

IV. ALTERNATIVELY,
MERITLESS.

ARTHUR’S

CLAIMS

ARE

A. Arthur’s Eighth Amendment claim is
time-barred and fails to state a claim.
Given the procedural grounds precluding
certiorari review, this Court cannot reach the merits
of Arthur’s case. But even if it could, certiorari
should be denied because Arthur’s Eighth
Amendment claim is meritless.
First, Arthur’s claim is barred by the statute of
limitations. It is well-settled that “a method of
execution claim accrues on the later of the date on
which state review is complete, or the date on which
the capital litigant becomes subject to a new or
substantially changed execution protocol.” McNair v.
Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). The
statute of limitations in Alabama is two years. Id. at
1173. Because his state review became final in 1998,
“absent a significant change in the state’s execution
protocol,” Arthur was required to file his Eighth
Amendment claim by July 31, 2004—two years after
Alabama switched to lethal injection as its method of
execution. Id. at 1777. He failed to meet this
deadline.
Arthur suggests that his complaint was timely
because he did not learn about the operative facts
until December 8, 2016, when Smith was executed.
Doc. 6 at 15. Arthur may attempt to whitewash the
true nature of his claims, but the fact remains that
his latest Eighth Amendment claim is simply
another challenge the ADOC’s method of execution

 26
which he could have challenged since 2002. As the
district court correctly noted, “there is nothing new
or different about these ‘new’ factual allegations.”
Doc. 13 at 5. As noted above, the allegations in
Arthur’s complaint are similar to what he alleged in
his fifth § 1983 action in the Middle District.
Finally, it is clear that Arthur’s Eighth
Amendment claim is focused on challenging the
ADOC’s midazolam protocol. Doc. 1 at 2. As the
district court correctly noted, the “‘method’ in
question has been the State of Alabama’s announced
protocol for conducting executions since 2014.” Doc.
13 at 7 n.6. At the very least, Arthur’s claim accrued
in September 2014, “[y]et Arthur inexplicably waited
until mid-May 2017 to unveil this legal theory to the
courts for the first time.” Id. Without question, even
assuming the most generous accrual date for Arthur
of September 2014, his complaint was filed outside of
the two-year statute of limitations period, and is
thus, time barred on the face of the complaint.
Second, Arthur’s claim is meritless. Arthur’s
Eighth Amendment claim fails to state a legal claim
for relief because be he ignores the controlling
standard under Baze and Glossip. Instead, in a ruse
to avoid the requirements under Baze and Glossip to
plead and prove a known and available alternative,
Arthur contends that the ADOC’s execution protocol
violates the Eighth Amendment because it will result
in an “intentional infliction of gratuitous pain,” citing
Justice Thomas’s concurring opinion in Baze, 553
U.S. at 102. Doc. 1 ¶7. But the concurring opinion
in Baze is not the relevant constitutional standard;
the controlling opinion in Baze, and this Court’s

 27
subsequent opinion in Glossip is. As the district
court correctly noted, Arthur’s theory is “devoid of
legal support,” and “appears to fly in the face of the
Glossip/Baze line of authorities.” Doc. 13 at 9 n.9.
Indeed, the concurring opinion noted in Baze that the
plurality opinion set the “governing standard.” Baze,
553 U.S. at 94 (Thomas, J., concurring). Arthur’s
attempt to circumvent Baze and Glossip renders his
complaint meritless and forecloses injunctive relief.
Even if Arthur were right on his purported legal
standard, his claim is meritless because he failed to
assert any factual allegations that plausibly show
that the ADOC’s “planned use of its protocol evinces
intent to inflict pain on Mr. Arthur.” Doc. 6 at 3.
Alabama is using the same protocol considered and
approved by this Court in Glossip. The reason the
ADOC adopted this protocol in the first place was not
because of some bad faith intent to inflict pain, but
because sodium thiopental and pentobarbital, the
drugs previously used in the protocol, are
unavailable to the ADOC. See Grayson v. Warden,
No. 16-17167, 2016 WL 7118393, at *6 (11th Cir.
Dec. 7, 2016) (“As this Court has noted many times,
and the Supreme Court reiterated in Glossip, both
pentobarbital and sodium thiopental are unavailable
for use in executions as a result of the advocacy of
death penalty opponents. If that were not the case,
this litigation would not be before us today.”
(citations omitted)). Moreover, Arthur has raised no
factual allegations even remotely suggesting that the
purpose of the ADOC’s protocol is to “intensify[] a
death sentence,” or that the protocol was purposely
designed to inflict pain and suffering beyond that

 28
necessary to cause death.” Baze, 553 U.S. at 95-96
(Thomas, J., concurring).
In any event, Baze and Glossip control. Arthur
does not dispute that his complaint is devoid of a
“known and available alternative” method of
execution that is “feasible, readily implemented, and
in fact significantly reduce[s] a substantial risk of
severe pain.” Glossip, 135 S. Ct. at 2737. Thus,
having failed to plead an essential element of his
method-of-execution claim, he has failed to state a
plausible Eighth Amendment claim.3
B. Arthur’s equal protection claims is
meritless.
Arthur’s equal protection claim also fails to state
a plausible claim. To state an equal protection claim,
Arthur must show (1) “that the State will treat him
disparately from other similarly situated persons,”
and (2) that the disparate treatment burdens a
fundamental right, targets a suspect class, or “is not
rationally related to a legitimate government
interest.” DeYoung v. Owens, 646 F.3d 1319, 1327–
3 Arthur also failed to allege facts that would show that the
protocol is “sure or very likely to cause serious illness and
needless suffering,” and gives rise to “sufficiently imminent
dangers.” Glossip, 135 S. Ct. at 2737. Much of Arthur’s
complaint centers on his allegations concerning the Smith
execution. As noted above, the State disputes Arthur’s version
of events. Regardless, even accepted as true, Arthur’s
allegations that Smith “struggled for breath, heaved, coughed,
and clenched his fist, without more, falls far short of showing
that midazolam ‘is sure or very likely to cause serious illness
and needless suffering.’” Gray v. McAuliffe, No. 3:16-cv-982–
HEH, 2017 WL 102970, at *12 (E.D. Va. Jan. 10, 2017) (citing
Glossip, 135 S. Ct. at 2737).

 29
28 (11th Cir. 2011). But Arthur has not alleged
plausible facts that he will be treated differently.
First, his claim is utterly speculative.
Even
assuming his allegations as true, Arthur does not
allege that the ADOC consistently deviates from
Alabama’s lethal injection protocol, or even that they
did so on more than one occasion. Rather, Arthur’s
equal protection claim stems solely from his
allegation concerning the Smith execution. Arthur
has failed to present any evidence or authority that a
single deviation from Alabama protocol in a single
execution would burden his fundamental rights.
Second, his own allegations refute the notion that
he will be treated differently from other inmates. As
the district court correctly noted, the premise of
Arthur’s purported claim is that the ADOC deviated
from its protocol by administering the second and
third drugs despite the fact that Smith was allegedly
still conscious after the consciousness assessment.
Doc. 13 at 11 n.10. But “Arthur concedes in the same
pleading that, following the Smith execution,
defendant Dunn stated, “[W]e do know we followed
our protocol. We are absolutely convinced of that.”
Id. (citing Doc. 1 ¶ 39). Thus, “Arthur does not
identify any facts raising a plausible inference that
he will be treated any differently than any other
Alabama death row inmate facing execution in the
future.” Id.

 30
CONCLUSION
Wherefore,
for
the
foregoing
reasons,
Respondents respectfully request that this Court
deny Arthur’s petition for writ of certiorari.
Respectfully submitted,
Steven T. Marshall
Alabama Attorney General
Andrew L. Brasher
Alabama Solicitor General
Thomas R. Govan, Jr.*
James R. Houts
Alabama Deputy Attorneys
General
Lauren A. Simpson
Alabama Assistant Attorney
General
Attorney of Record*