good afternoon your honors may please the court counsel jeffery lee's complaint challenging alabama's method of execution was dismissed as time barred when the district court found that the state of alabama's change of the first drug in the protocol from only as an alternative to the present three drug protocol to opinions of this court that were issued since that decision we believe resolve this matter in mr lee's favor and require this case to be reminded for furthe proceedings in the district court the district court found that my dazzle him was not a substantial change in the protocol when it did and found that because of that under this court's precedent the complaint was time bart in doing so the court cited two two cases one that named grace in which concerned the ron smith case and another brooks as is shown by this court's decision in west the reliance on those two decisions is now missed misplaced with respect to smith as this court held smith because it is not published west which is published controls over smith second brooks did not apply as this court stated because it was on the stay standard not on the twelve b six and as this court noted in frazier what the court held in brooks was not did not concerned the pleading standard but whether mr brooks had met his standard on the first prong of the stay this conclusion the conclusion in west that an attack on the use of my dad from the district court that the attack on mr west and the others complaint was that this was a generalized attack on a three drug protocol the court reverse related to the pentobarbital i have one question for you before you answer that your brief doesn't really address the equal protection and due process claims you're not pursuing those claims you just want to remain on the eighth amendment claim we did we did not pursue those on appeal your honor we just pursued the the claims we raised specifically the first claimant the eighth amendment ok with respect to the  believe that is controlled by this court's decision in frasier frazier this court held that the summary judgment that a summary grant of summary judgment should have been denied because there was a plausible claim if the kid complaint in this case mirrors west then there's nothing more else to say is there there was no that other than to listen to your colleague and then have rebuttal that we did that would be true your honor i wanted to make sure i addressed those two points since those were what i was concerned with but if afternoon may it please the court i'm thomas cofan from the alabama attorney general's office representing the commissioner i like to straight address right off the bat the application of west in this case we had bitterly it is a helpful case to the other side because it arises in a similar procedural posture but we believe it's distinguishable for a couple of reasons that does not mandate a remain i want to tell the court what those reasons are first the reason the district court dismissed the case and why this court reversed and west was different than the situation  and the reasoning from the district court below as was alluded to in opposing counsel's comments in west the district court dismissed because it interpreted the claims in that particular case as a general challenge to all three drug protocols and hel that was time barred challenge because they could challenge a three day protocol since alabama adopted a three judge challenge in two thousand and two that's the reason this court dismissed in west that is not the reason converse really why the district court dismissed here determine that those allegations had been rejected on appeal before didn't important consider any facts it just said if you assume these facts is true you could not establish a substantial change in the other cases i'm sorry on b thomas aside in our brief it's what this court held in grayson it did not consider make a factual determination but it did look at the factual allegation that said even if you assume those is true based on this court's precedent and gi palmer and arthur and pal instead it said analyze whether this was just a general challenge that different went with the district court did in west and therefore this court in west did not address that line of precedent in reversing the district court's dismissal in west but a case like gibson downer can't possibly be relevant because gibson downer involved the georgia death penalty protocol not the alabama protocol so how can a decision dealing with what constitutes the it cruel of a claim challenging the georgia protocol applied to the alabama protocol certainly ought to and we're not saying that the factual that the specific allegations in gibson and apply it was the legal holding those presented in a previous case in which the nile of relief was affirmed and this court applied that in may and in a florida case in palau in an alabama case that was the legal reasoning that the district court used here it certainly was in applying the facts the factual which which cases do you think stand for the proposition that the madonsela challenge as the substitution in the first drug of a three drug protocol doesn't constitute a material however this court has held in palau the thomas in a similar situation it affirmed the dismissal of statue limitations ground on a twelve b six where the district court relied on factual allegations excuse me relied on a holding from the eleventh circuit that would that address similar material factual allegations in the context of a stay so there is precedent for what the district court did here it was it would and it went through meticulously inside of that precedent in its order so we  it is a helpful case to their side we do not believe it's controlling just want to reiterate west did not overrule arthur gets in dan or man pal any of these cases it didn't address them because that was not the issue that came before this court in honor and one more distinguishing factor from west that we would would point out is just that it did not hold carte blanche that any inmate who allege that my dad's a lamb the supposition but as long as a significant change can overcome a twelve b six motion related to because that would have contradicted this court's case law in arthur and gibson or the man you have to analyze the factual allegations of each complaint and went looking at the statue limitations question it's a fact to pin an inquiry on and  court this report is charged with looking at the specific allegations that that inmate raises in their complain that's what the district court was faced with here and that's what the court did and in applying this court's precedent haha similar was a complaint in this case to the adam occurred in the first case in west they alleged other alternatives they allege other drugs like sodium type and tall and actually a one drug protocol using my dad's land which is actually unique to west case because in that case the parties agree that my dad's name was available to some extent but the availability in a bar to on this case has been addressed over and over by this court granted a different context but but again we're putting  other states but there is on court on point panel present from this court in arthur in brooks that holds simply the fact that other states use a drug doesn't make it available to alabama and nobody is the reason the bill you know you mail timidly prevail on that issue you may be able to show that it really isn't available to you but the test as judge joe flat i think might have suggested the question is whether the claim gets to the next stage and whether you know mr leakin prove you know sufficiently to the district court that that drug is available to you if you're correct in the drug isn't available to you then you may well be entitled to and this case that summary judgment but here's here's the way i try to think about it let's let's assume that you are correct about our prior cases right and let's say that an eight year period runs from those cases and the world of pharmacology has changed and the supply of drugs in the country has changed in the number of manufacturers in the area has changed and so now there is a significant difference of what drugs may or may not be available to a state which has the death penalty you're suggesting that even eight years later a plaintive can say now in today's world these drugs are available i know you held based on the world as it existed eight years ago that it wasn't available but i'm telling you now my complaint that they are available to the state what happens then what as i understand your point your honor and no that's not what we're saying there would be a way to plead a plausible claim which is what well the problem is here is truly is not available so i believe because you say so well but that's not what they say and you're dealing with the dismissal of a complaint on its face and that's a factual allegation if you say drug x is available that is a factual allegation which they have to prove at some point but it's a factual allegation that the judge can't say i know that that's not true well two two responses that let me get you on a let me give  contend is yes you know for example arthur case that was based after a trial the court this court affirmed the findings made after trial because burden of proof but the relevant point is the allegation the allegation the district court relied on were legal holdings from the arthur court for example arthur held that arthur was drought correct your honor well but arthur held we express the whole that the fact that has possession of all the evidence that i ought to go forward with the evidence on the issue but that's never been but that presumption has been developed you follow me yes you're right and i han't so they've lost because they haven't put the evidence on correct ok it however for purposes of twelve b six this is just the reason why arthur and brooks are critical here why the district court relied on them correctly is they made a holding back the fact even if you assume those facts is true that would not entitle you to show a known available alternative under basan glossop that's why the district court dismissed and failed that it failed to plead a plausible claim for relief because you know arthur brooks yes those were factual determinations but they actually held even if other states even if it's how it's a way to understand that the court is talking about the burden of proof it is not enough to show it in another state correct and you cannot draw on the facts with another case a court adjudicates a set of facts and another case summary judgment our trial which most of these were or are on a motion to stay which is your evidence  that's not a dud and based yes it comes as if it were the first go round correct and simply alleging it's available isn't a plausible claim ok that's not that's our position your honor we understand and we understand example tylenol you would be able to plausibly it's like you would be able to plead facts for example it's available at a drug store down the street so there should have been given an opportunity to follow them and complyin amendment would be futile your honor i don't recall that in the district court's opinion if it is i'd missed that i think part of the reason was that it actually never filed in a minute complain or move the court for that maybe you said that in your brief that an that's available i'm going to answer your question i understand judge i don't know what they would have been able to allege that would not have been futile but since they didn't follow him in a complaint it was never before the court we had never had an opportunity to respond to the the allegation is not and i know we may just disagree but the allegation is not simply that other states used pentobarbital the allegation is quote there are a number of drift from drugs available to states that employ single drug protocols one is pentobarbital are barbiturate that is used and then are veteran ery euthanasia that's not an allegation simply that other states are using it it's an allegation that it's available you don't think that's enough no your honor ok we don't think your honor if i may very very briefly take you first of all we do believe that that we alleged more than just it was available in other states including this state we're standing in right now  however we believe that even if the allegation was merely that other states are doing these executions using pentobarbital only that would be sufficient at this stage of the case why do you want to bert yourself of possible here i'm trying again i certainly try not to make my case harder we we believe as i stated in my initial presentation that the cases in western frasier controlled this result the complaint is the complaint is similar enough it makes the same allegations it alleges that my dad's a lamb is is the change and is causing the issue and it's an eighth amendment violation and we believe we've all led sufficient alternatives to get past the pleading stage at twelve b six and the district court's decision should be reversed and this case reminded for further proceedings on that if there are no further questions your honor court to be in recess