PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-11536

________________________

GEOFFREY TODD WEST, et al 2:12-cv-00316 

 Plaintiffs,

versus

WARDEN,

COMMISSIONER, ALABAMA DOC, Defendants.

__________________________________________________________________

TORREY TWANE MCNABB, 2:13-cv-00781

 Plaintiff - Appellant,

__________________________________________________________________

CHARLES LEE BURTON, 2:14-cv-01028

 Plaintiff - Appellant,

__________________________________________________________________

ROBERT BRYANT MELSON, 2:14-cv-01029

 Plaintiff - Appellant,

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_________________________________________________________________

JEFFERY LYNN BORDEN, 2:14-cv-01030

 Plaintiff - Appellant,

versus

COMMISSIONER, ALABAMA DOC,

WARDEN, CF HOLMAN

 Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

Before: TJOFLAT, ROSENBAUM and JILL PRYOR, Circuit Judges.

This appeal involves four of a group of twelve cases filed in the Middle 

District of Alabama by death row inmates challenging, under 42 U.S.C. § 1983, the 

constitutionality of the State’s lethal injection protocol.1 In a single order, the 

District Court dismissed the four cases pursuant to Federal Rule of Civil Procedure 

12(b)(6) for failure to state a claim for relief. We reverse the District Court’s 

dismissal of the cases and remand them for further proceedings.

1 Appellant Robert Bryant Melson was an initial party to this appeal. Melson was 

executed on June 8, 2017, while briefing was still pending. On June 2, 2017, this Court stayed 

Melson’s execution pending resolution of this appeal. However, on June 7, 2017, the United 

States Supreme Court granted Alabama’s motion to vacate the stay of execution granted by this 

Court and accordingly allowed Melson’s execution to proceed. 

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I.

Since July 1, 2002, Alabama has employed lethal injection as its preferred 

method of executing inmates sentenced to death in the State.2 Act 2002-492, 2002 

Ala. Laws 1243 (codified at Ala. Code § 15-18-82.1). Since that time, the State’s 

lethal injection procedure has involved the sequential injection of three drugs. See 

Williams v. Allen, 496 F.3d 1210, 1214 (11th Cir. 2007) (noting that Alabama’s 

lethal injection protocol consisting of three drugs had remained unchanged “since 

its inception in 2002”). The United States Supreme Court described an identical 

protocol, as implemented by the State of Kentucky, in Baze v. Rees, 553 U.S. 35,

128 S. Ct. 1520 (2008) (plurality opinion): 

The first drug, sodium thiopental . . . , is a fast-acting barbiturate 

sedative that induces a deep, comalike unconsciousness when given in 

the amounts used for lethal injection. The second drug, pancuronium 

bromide . . . , is a paralytic agent that inhibits all muscular-skeletal 

movements and, by paralyzing the diaphragm, stops respiration. 

Potassium chloride, the third drug, interferes with the electrical 

signals that stimulate the contractions of the heart, inducing cardiac 

arrest. The proper administration of the first drug ensures that the 

prisoner does not experience any pain associated with the paralysis 

and cardiac arrest caused by the second and third drugs. 

Id. at 44, 128 S. Ct. at 1527 (citations omitted).

2 A person sentenced to death in Alabama can still elect to die by electrocution instead of 

lethal injection. See Ala. Code § 15-18-82.1(a) (explaining “[a] person convicted and sentenced 

to death for a capital crime at any time shall have one opportunity to elect that his or her death 

sentence be executed by electrocution”).

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On April 26, 2011, Alabama substituted pentobarbital, “a short-acting 

barbiturate” sedative,3 for sodium thiopental, as the first drug in its three-drug

protocol. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011) (per curiam).

Then, on September 10, 2014, the State substituted midazolam, a benzodiazepine 

sedative, 4 for pentobarbital. Brooks v. Warden, 810 F.3d 812, 816–17 (11th Cir. 

2016). It also substituted rocuronium bromide for pancuronium bromide as the 

second drug. Id. at 817. Potassium chloride remained the third drug. Id.

In the four cases at hand, the appellants (“Appellants”), death row prisoners 

awaiting execution, claim that if they are executed in accordance with the lethal 

injection protocol now in place, they will suffer “cruel and unusual punishment” in 

violation of the Eighth Amendment.5 They seek an order under 42 U.S.C. § 1983

enjoining the Alabama Department of Corrections (“ADOC”) from executing them 

pursuant to that protocol.6 In Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015), the 

3 Nembutal, RxList, http://www.rxlist.com/nembutal-drug.htm (last visited Sept. 6, 2017).

4 Midazolam is “a sedative of the benzodiazepine class.” Midazolam, Miller-Keane 

Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 1130 (Marie T. O’Toole 

et al. eds., 7th ed. 2003). 

5 The Eighth Amendment applies to the states through the Fourteenth Amendment. 

Rhodes v. Chapman, 452 U.S. 337, 344–45, 101 S. Ct. 2392, 2398 (1981).

6 Appellants McNabb, West, and Burton filed their complaints in April 2016. Their 

complaints raised identical claims. The District Court consolidated those cases for discovery and 

trial on April 28, 2016. Borden filed his complaint, which presented the same claims, on

September 7, 2016. The District Court consolidated his case with the others on January 26, 

2017. Prior to consolidating Appellants’ cases, the District Court consolidated the cases of 

Demetrius Frazier, David Lee Roberts, Robin Dion Myers, Gregory Hunt, Carey Dale Grayson, 

and Ronald Bert Smith, all challenging Alabama’s three-drug injection protocol, for discovery 

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Supreme Court made clear that the “controlling opinion in Baze” set forth the twopronged standard a plaintiff must satisfy “to succeed on an Eighth Amendment 

method-of-execution claim.” The first prong requires the prisoner to demonstrate 

that the challenged method of execution presents “a ‘substantial risk of serious 

harm.’” Id. (quoting Baze, 553 U.S. at 50, 128 S. Ct. at 1531). That is, the method 

must “present[] a risk that is ‘sure or very likely to cause serious illness and 

needless suffering, and give rise to sufficiently imminent dangers.’” Id. (quoting 

Baze, 553 U.S. at 50, 128 S. Ct. at 1531). The second requires the prisoner to

“identify an alternative that is ‘feasible, readily implemented, and in fact 

significantly reduce[s] a substantial risk of severe pain.’” Id. (quoting Baze, 553 

U.S. at 52, 128 S. Ct. at 1532). Showing “a slightly or marginally safer 

alternative” is insufficient to mount a successful challenge to a State’s method of 

execution. Id. (quoting Baze, 553 U.S. at 51, 128 S. Ct. at 1531).7

and trial. We addressed their joint appeals in Grayson v. Warden, Comm’r, Ala. DOC (Frazier),

No. 16-16876, 2017 WL 3815265 (11th Cir. Sept. 1, 2017). The District Court refers to all of 

the cases challenging the three-drug protocol collectively as the “Midazolam Litigation.” In 

addition to an injunction barring their executions pursuant to the three-drug protocol, Appellants 

seek other injunctive relief: an order requiring the ADOC to, among other things, “disclose to 

Plaintiff and his counsel the lethal injection protocol,” “submit any proposed changes to the 

execution protocol to the Court immediately upon making them,” and disclose “when [the drugs 

used in the protocol] were purchased, where they were purchased from, and their National Drug 

Code identifying number.”

7 Because the plurality in Baze first articulated the standard governing Eighth 

Amendment method-of-execution challenges later applied by the Supreme Court in Glossip, we 

refer to the law governing Plaintiffs’ claim here as the Baze standard. 

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Appellants contend that the ADOC’s current protocol presents a substantial 

risk of serious harm that comports with Baze’s definition. They argue that the risk 

is substantial because midazolam, a sedative, is not an analgesic like sodium 

thiopental and pentobarbital. Consequently, they assert midazolam does not

produce the sustained state of anesthesia necessary to render them insensate to the 

intolerable pain that will be generated by subsequent injections of rocuronium 

bromide and potassium chloride. To satisfy Baze’s second prong, Appellants also 

propose three alternative methods of execution involving single injections of either 

sodium thiopental, compounded pentobarbital, or a 500-milligram bolus of 

midazolam.8

Before us for review is the District Court’s Memorandum Opinion and Order 

of March 31, 2017, granting the ADOC’s motion to dismiss Appellants’ 

complaints pursuant to Federal Rule of Civil Procedure 12(b)(6).9 In its order, the 

8 Appellants also raise two additional claims concerning Alabama’s execution 

procedures: (1) a claim that Alabama’s consciousness assessment violates the Eighth 

Amendment’s prohibition of cruel and unusual punishments because it cannot adequately 

determine whether a prisoner is insensate prior to the administration of the second and third 

drugs, and (2) a claim that “their right to meaningful access to the courts requires their counsel, 

as a witness to their executions,” to “have access to a cellular phone or landline telephone until 

their executions are complete.” In this decision, we address only the District Court’s dismissal 

of Appellants’ Eighth Amendment midazolam claim. On remand, the District Court should 

consider Appellants’ additional claims in a manner not inconsistent with this opinion.

9 The order also denied Appellants’ motion for leave to amend their identical complaints. 

Appellants sought leave to correct a “drafting error,” add nitrogen asphyxiation as a proposed 

alternative to the ADOC’s current execution protocol, and include additional facts concerning 

the December 2016 execution of Ronald Bert Smith. The District Court concluded that allowing 

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Court concluded that Appellants claims were “identical” to the claims raised by 

Ronald Bert Smith, and dismissed by the District Court under Rule 12(b)(6), in

Grayson v. Dunn (Smith), 221 F. Supp. 3d 1329 (M.D. Ala., Nov. 18, 2016), aff’d

sub nom., Grayson v. Warden, 672 F. App’x 956 (11th Cir. 2016).10

In Smith, the District Court adopted the ADOC’s reading of Smith’s 

complaint as a “general challenge” to its three-drug protocol that uses a paralytic 

and potassium chloride as the second and third drugs. See id. at 1333. The Court 

observed that Smith’s response to the ADOC’s motion to dismiss did “not address 

Defendants’ contention that his claim, in actuality, is a challenge against the use of 

any three-drug execution protocol.” Id. at 1334. Therefore, the Court concluded 

that the challenge should have been brought during the two-year statute of 

limitations period that began to run in July 2002, when Alabama chose lethal 

injection over the electric chair. Id. Hence, it dismissed Smith’s complaint as 

time-barred. Id. at 1335. Smith appealed that decision to this Court, and we 

affirmed the District Court’s decision in December 2016. Smith, 672 F. App’x at

958.

them to do so would be “futile,” because Appellants’ proposed amendments would not “change 

the fact that the underlying claim they seek to amend is untimely.”

10 Smith’s case, like McNabb, West, and Burton’s cases, was filed in April 2016. The 

District Court consolidated Smith’s case with those cases on April 28, 2016.

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Because the District Court found that Appellants’ complaints were identical 

to Smith’s complaint, the Court concluded that its determination regarding the true 

nature of Smith’s complaint as a “general challenge” to the three-drug protocol 

was “equally applicable” in Appellants’ cases. Thus, it held, “[Appellants’]

claims, just like Smith’s claims, are time-barred.”

Appellants ask us to reverse the District Court’s dismissal of their Eighth 

Amendment claims on the basis that the District Court erred in construing their 

complaints as “general challenge[s],” in the face of allegations that plainly 

challenge the protocol on the basis that midazolam would not render them 

insensate. In response, the ADOC contends dismissal was proper because “this 

Court has already considered and rejected [Appellants’] claims in their coplaintiff’s case.” In other words, the ADOC avers, because the District Court 

agreed with the ADOC’s reading of Smith’s complaint as a general challenge to 

the State’s use of a three-drug lethal injection protocol, and because a panel of this 

Court did not disturb that interpretation, our decision in Smith precludes 

Appellants’ claims in this case.

After carefully considering the record and the parties’ briefs, we hold that 

dismissal of Appellants’ claims was improper. We do so because we are not 

persuaded by the ADOC’s argument—which the District Court accepted in Smith

and this case—that Appellants’ complaint is a general challenge to the State’s 

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three-drug lethal injection protocol. We also note that our decision today does not 

contradict the law-of-the-case doctrine, because the panel’s holding in Smith does 

not apply in Appellants’ cases and thus does not dictate our decision in this appeal.

We therefore reverse the District Court’s dismissal and remand the case for further 

proceedings.

II.

The ADOC argues that we should affirm the District Court’s dismissal of 

Appellants’ cases for two independent reasons. First, it argues that our holding in 

Smith is the law of the case that binds our decision in this appeal, because Smith’s 

case and Appellants’ cases—having been included in the “Midazolam 

Litigation”—have now become the same case. Second, the ADOC asserts that 

Appellants’ complaints are time-barred because they do not really challenge the 

State’s use of midazolam as the first drug in its three-drug protocol. In actuality, 

the ADOC argues, the complaints are, “on [their] face,” nothing more than 

“general challenge[s]” to the three-drug lethal injection protocol Alabama has used 

to carry out capital punishment sentences since 2002. We address the ADOC’s 

arguments in order.

A.

We begin our analysis by dispensing with the ADOC’s law-of-the-case 

argument. The law-of-the-case doctrine holds that “findings of fact and 

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conclusions of law by an appellate court are generally binding in all subsequent 

proceedings in the same case in the trial court or on a later appeal.” Westbrook v. 

Zant, 743 F.2d 764, 768 (11th Cir. 1984) (emphasis added) (quoting Dorsey v. 

Continental Cas. Co., 730 F.2d 675, 678 (11th Cir.1984)).

Here, the ADOC argues, since the District Court consolidated Smith’s case 

and Appellants’ cases as part of the “Midazolam Litigation,” all of those cases are 

now one case, such that Smith’s affirmance of the District Court’s dismissal of 

Smith’s complaint now dictates our decision in this appeal. Thus, the ADOC 

argues, since the panel in Smith accepted the District Court’s reading of Smith’s 

complaint as a time-barred “general challenge” to Alabama’s three-drug lethal 

injection protocol, we must now read Appellants’ complaints as time-barred 

general challenges as well.

We disagree. Appellants and Smith’s shared status as part of the 

“Midazolam Litigation” does not change the fact that they are still separate cases.11

11 Although Smith’s case and Appellants’ cases were filed contemporaneously and 

contained identical complaints, Smith’s case took a different procedural route than Appellants’ 

cases. Smith’s execution was scheduled to take place on December 8, 2016. In its motion to 

dismiss Smith’s complaint, the ADOC offered Smith an alternative method of execution. It 

offered to consent to Smith’s execution pursuant to a single-drug protocol consisting of 

midazolam. On November 9, 2016, the District Court entered an order for the purpose of 

“explor[ing] the midazolam option pled and urged by Mr. Smith and presently offered by 

Defendants.” The Court reasoned that this alternative method of execution was appropriate 

based on Smith’s own allegations. It explained that Smith “pled it and offered the option as 

viable, readily implemented and available, and Defendants have accepted the offer.” Moreover, 

it observed, “[t]he parties all agree that (1) midazolam is available, (2) it is feasible, (3) it is 

readily implementable, and (4) it is not risky with regard to unnecessary pain and suffering.” 

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That the District Court consolidated cases challenging the State’s midazolam 

protocol for purposes of discovery and trial did not transform them into a single 

case. Here, we direct the parties to our law-of-the-case discussion in Grayson v. 

Warden, Comm’r, Ala. DOC (Frazier), No. 16-16876, 2017 WL 3815265 (11th 

Cir. Sept. 1, 2017), in which we reversed the District Court’s entry of summary 

judgment in favor of the ADOC in four of the consolidated cases after denying the 

ADOC’s Rule 12(b)(6) motion to dismiss. In Frazier, we discussed at length why 

the cases forming the “Midazolam Litigation” are not the same case for law-of-thecase purposes. Id. at *18–29. As we explained there, many of the cases

consolidated by the District Court were at various stages of litigation when joined 

Thus, the Court ordered the ADOC to submit to the Court “on or before November 14, 2016, a 

current one-drug execution protocol and a current three-drug execution protocol for in camera

inspection.” It also ordered Smith to show cause, by November 16, 2016, “why the court should 

not order Defendants to execute him using the method pled in his complaint, viz., a large initial 

dose of midazolam, followed by continuous infusion.”

Smith responded by agreeing that the “Court can and should order the Defendants to use 

Mr. Smith’s identified single-drug midazolam alternative.” But Smith also argued that, before 

implementing the proposed execution protocol, the ADOC must, to the Court’s satisfaction, 

“adopt[] an adequate protocol, including accounting for all necessary equipment and sufficient 

training to execute Mr. Smith using his proposed single-drug midazolam alternative.” As part of 

that protocol, Smith argued that the ADOC should follow the recommendation of Smith’s expert 

witness, Dr. Tackett, who recommended “a loading dose between 2.5 and 3.75 grams” of 

midazolam “followed by a continuous IV infusion until death.” 

The ADOC, replying on November 18, rejected Smith’s proposal that the ADOC employ 

Dr. Tackett’s formulation of the midazolam alternative, contending that his proposed formulation 

was a material departure from the formulation Smith described in his complaint, “a one-drug 

protocol consisting of a 500-milligram bolus of midazolam followed by a continuous infusion.” 

On receiving the ADOC’s reply to Smith’s response to its order to show cause, the Court 

realized that Smith and the ADOC had reached an impasse. Thus, the Court entered an order 

abandoning further consideration of the midazolam alternative and granted the ADOC’s motion 

to dismiss.

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together, and many followed entirely different procedural routes after 

consolidation.12

Indeed, compare Smith’s case with Appellant Borden’s case. The District 

Court entered judgment as to Smith on November 18, 2016. Borden’s case was 

not consolidated until January 2017. How then can the ADOC now argue that 

Smith’s failure to respond to the ADOC’s interpretation of his complaint must be 

imputed to Borden? It cannot: so far as the law-of-the-case doctrine is concerned,

the cases are not and cannot be one and the same. Simply put, “consolidating”

multiple cases brought by multiple parties against multiple defendants for the 

purpose of streamlining discovery and trial does not transform those cases into 

“one case” such that the law-of-the case doctrine applies.

Even assuming that Smith’s case and Appellants’ cases are one, Smith 

cannot dictate our decision here. In Frazier, we explained that Smith could not 

apply to that case because the District Court expressly stated that its decision only 

applied to Smith’s case, and not the four other cases that were filed 

contemporaneously with Smith’s. What’s more, the Smith panel’s decision 

pertained only to Smith. As we noted in Frazier, Smith had no application in the 

12 For example, compare the cases at issue in Frazier with the cases at issue in Smith and 

this appeal. In Frazier, the cases took the route of full discovery and proceeded to summary

judgment. Frazier, 2017 WL 3815265, at *23. In Smith and this case, the cases took the route of 

no discovery and the District Court based its dispositive ruling on the pleadings alone. In fact, 

Smith and Appellants’ cases were consolidated after discovery was closed in the Frazier 

appellants’ cases. Id.

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four other contemporaneously filed cases. Frazier, 2017 WL 3815265, at *28.

Thus, the ADOC’s law-of-the-case argument fails.

B.

Having set aside the ADOC’s law-of-the-case argument, we consider the

fulcrum of this appeal: whether Appellants’ Eighth Amendment claim is sufficient 

to survive the ADOC’s Rule 12(b)(6) motion to dismiss. We must first determine 

whether the Complaint states a claim for relief under the governing legal standard. 

We review a district court’s decision to grant a motion to dismiss de novo.

Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002). When 

considering a motion to dismiss, we “accept as true the facts as set forth in the 

complaint and draw all reasonable inferences in the plaintiff’s favor.” Randall v. 

Scott, 610 F.3d 701, 705 (11th Cir. 2010). 

Appellants’ complaints are identical, save for their different accounts of each 

Appellant’s conviction and litigation history.13 They are indistinguishable with 

respect to the Eighth Amendment claim now before us. Hence, for convenience, 

13 We also note that Appellants’ complaints are identical in another respect. In Frazier,

we made clear that the parties’ pleadings came before us in considerable disarray. 2017 WL 

3815265, at *30–31. The pleadings do not fare much better in this case. In addition to including 

factual allegations its drafter apparently thought would be probative of his Eighth Amendment 

claim at trial, but that are unnecessary to establish an Eighth Amendment claim sufficient to 

withstand a motion to dismiss, each complaint includes nine exhibits containing over 100 pages 

of extraneous information. These exhibits include, among other things, a copy of a motion filed 

in the Alabama Supreme Court, an expert witness report, an email from an official with the Ohio 

Department of Rehabilitation and Correction to an official at the Food and Drug Administration, 

and execution procedures promulgated by the Arizona Department of Correction.

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we refer only to Geoffrey West’s complaint (“the Complaint”). The Complaint 

challenges the Eighth Amendment sufficiency of Alabama’s protocol under the 

controlling standard set forth by the Supreme Court in Baze v. Rees, 553 U.S. 35, 

128 S. Ct. 1520 (2008) (plurality opinion). That standard requires a prisoner to 

plead and prove that the challenged execution protocol creates a “substantial risk 

of serious harm,” such that prison officials cannot argue “they were subjectively 

blameless for purposes of the Eighth Amendment.” Id. at 50, 128 S. Ct. at 1531 

(quotations omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846, and n. 

9, 114 S. Ct. 1970 (1994)). Under the standard, a “substantial risk of serious 

harm” does not include any possibility the prisoner will suffer pain; rather, “the 

conditions presenting the risk must be sure or very likely to cause serious illness 

and needless suffering, and give rise to sufficiently imminent dangers.” Id. at 49–

50, 128 S. Ct. at 1530–31 (quotations omitted) (quoting Helling v. McKinney, 509 

U.S. 25, 33, 34–35, 113 S. Ct. 2475 (1993)). Additionally, the challenger must 

also prove the existence of an “alternative procedure” that is “feasible, readily 

implemented, and in fact significantly reduce[s] a substantial risk of severe pain. 

Id. at 52, 128 S. Ct. at 1532.

The Complaint alleges that the third drug, potassium chloride, “indisputably 

causes an unconstitutional level of pain” when a prisoner is not “in a deep level of 

anesthesia” before potassium chloride is administered. And, Appellants allege, 

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midazolam cannot be trusted to put prisoners in such a sedated state. They argue 

that midazolam, as “a sedative and not an analgesic,” would likely render a 

prisoner “unable to respond to . . . the ADOC’s consciousness check” yet would do 

little or nothing to prevent the prisoner from “feel[ing] the excruciating effects of 

the second and third drugs.” Thus, with respect to Baze’s “substantial risk of 

serious harm” prong, Appellants argue that using midazolam as the first drug 

creates a serious risk that they will be subjected to the intolerable pain the 

administration of rocuronium bromide and potassium chloride will cause. 

With respect to the requirement that they plead and prove the existence of a 

readily available and implementable alternative protocol that would significantly 

reduce that risk, they argue that “a single bolus of [compounded] pentobarbital . . .

is the most common method of execution in the United States”; thus, it is “read[ily] 

available, and would entirely reduce the risk of pain associated with administering 

the paralytic and potassium chloride, because those drugs would not be used.”

Alternatively, they argue that sodium thiopental is available and “would cause 

death without need of a paralytic or potassium chloride.” Finally, as a third 

alternative, Appellants argue that “a 500mg dose of midazolam will likely cause 

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death in under an hour,” and, as evidenced by its adoption of midazolam as the first 

drug in its protocol, the ADOC “can obtain midazolam.”14

Here, if proven true, the facts Appellants allege would satisfy Baze’s twoprong standard. First, if midazolam fails to render them insensate, the severe pain 

caused by the second and third drugs would represent the “substantial risk of 

serious harm” the first prong contemplates. Baze, 553 U.S. at 53, 128 S. Ct. at 

1533 (noting “[i]t is uncontested that” failure to “render the prisoner unconscious” 

would create “a substantial, constitutionally unacceptable risk of suffocation from 

the administration of pancuronium bromide and pain from the injection of 

potassium chloride”). Second, accepting their allegations as true for purposes of 

the motion to dismiss, each of Appellants’ three proposed alternatives would be 

obtainable by the ADOC and would completely eliminate the risk of suffocation 

and pain the second and third drugs create. This would satisfy Baze’s second 

prong. Thus, the Complaint states a claim sufficient to survive a Rule 12(b)(6) 

motion to dismiss.

14 The ADOC argues that this Court must, in this appeal, adopt the District Court’s 

findings regarding the “true nature” of Smith’s complaint. But if we were required to adopt 

those findings from Smith, we would also be required to adopt the District Court’s findings 

regarding a single-bolus midazolam protocol’s availability and effectiveness as an alternative 

execution method. In the order immediately preceding the dispositive order that dismissed 

Smith’s complaint, the Court observed that “the parties all agree that (1) midazolam is available, 

(2) it is feasible, (3) it is readily implementable, and (4) it is not risky with regard to unnecessary 

pain and suffering.” Simply put, the ADOC cannot have it both ways with respect to Smith’s 

relevance to this appeal. 

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That, however, is not the end of the inquiry. Nor is it the basis upon which 

the District Court dismissed Appellants’ cases. A complaint must also be 

dismissed if it is time-barred under the applicable statute of limitations. Claims

like Appellants’ brought under 42 U.S.C. § 1983 are subject to “the statute of 

limitations governing personal injury actions in the state where the § 1983 action 

has been brought.” McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). Thus, 

in this case, Alabama’s two-year limitations period for personal injury actions 

applies. See Ala. Code. § 6-2-38(j) (“All actions for any injury to the person . . . of 

another . . . must be brought within two years.”); McNair, 515 F.3d at 1173 

(explaining that an Eighth Amendment method-of-execution claim brought by a 

death row inmate in Alabama under § 1983 is subject to a “governing limitations 

period [of] two years” ). 

An Eighth Amendment 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,

515 F.3d at 1174. Although we have never articulated what precisely constitutes a

“substantial change” in a given execution protocol, we have explained that a 

change must “significantly alter the method of execution” to qualify as 

“substantial.” Gissendaner v. Comm’r, Ga. Dept. of Corr., 779 F.3d 1275, 1282 

(11th Cir. 2015) (per curiam). Determining whether a significant alteration to a 

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state’s execution protocol has been made is “a fact-dependent inquiry” that

requires careful consideration of the specific allegations and evidence presented by 

the plaintiff in each case. Arthur v. Thomas, 674 F.3d 1257, 1260 (11th Cir. 2012)

(per curiam).

Thus, we must decide whether the District Court erred in concluding that 

Appellants’ challenge was actually a “general challenge” to the State’s three-drug 

lethal injection protocol, notwithstanding which drug is used as the first drug. All 

Appellants but Borden filed their complaints in April 2016; Borden filed his 

complaint on September 7, 2016. Alabama substituted midazolam for pentobarbital 

on September 10, 2014, while the State adopted lethal injection, by way of a threedrug protocol, on July 1, 2002. Hence, if Appellants challenge the State’s threedrug protocol generally, the Complaint is barred. On the other hand, if they 

“really” challenge only the use of midazolam as the first drug, it isn’t. We thus

review the Complaint to determine the “true” nature of Appellants’ challenge.

We first observe that we are not constrained to follow Smith’s acceptance of 

the ADOC’s interpretation of the Complaint as a general challenge to the State’s 

three-drug protocol. We explain above and in Frazier why the law-of-the-case 

doctrine is inapplicable in this instance. Smith fares no better as pure precedent. 

The case was not published and therefore is not binding precedent. See, e.g.,

United States v. Manella, 86 F.3d 201, 204 (11th Cir. 1996) (per curiam). 

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Moreover, although an unpublished opinion may serve as persuasive 

authority, we are not persuaded to give our imprimatur to the proposition that a 

plaintiff is required to respond to an adversary’s interpretation of his complaint in 

order to survive a Rule 12 (b)(6) motion to dismiss when the complaint plainly 

alleges a claim for relief in accordance with Federal Rule of Civil Procedure 8(a).

In Smith, although Smith’s complaint focused consistently on midazolam’s 

alleged ineffectiveness, the ADOC argued his challenge bespoke an ulterior 

motive: to renew an otherwise time-barred “general challenge” to Alabama’s threedrug protocol. The ADOC argued,

Plaintiffs make no secret that their complaints seek to address the 

dangers created by the risk of using three-drug protocols, not the 

dangers of midazolam. Specifically, Plaintiffs seek to end Alabama’s 

use of paralytic and cardiac-arresting agents, regardless of the first 

drug administered during the lethal injection process. . . . [I]t is clear 

from the beginning to the end of their complaint, Plaintiffs’ challenge 

concerns a three-drug protocol generally, not midazolam specifically.

The District Court accepted that argument, basing its adoption of the 

ADOC’s reading of Smith’s complaint on the fact that all of Smith’s proposed 

alternatives consisted of single-drug protocols, instead of the State’s prior threedrug protocols using either sodium thiopental or pentobarbital. In its view, those 

“one-drug protocol proposals strip[ped] away the veneer from Smith’s claim” to 

reveal “its true identity.” Smith, 221 F. Supp. at 1334. The Court explained,

The fact that Smith does not propose that the ADOC be required to 

return to its use of sodium thiopental or pentobarbital as the first drug 

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administered in a three-drug protocol is significant because it reveals 

the true nature of his Eighth Amendment claim: Smith is challenging 

the three-drug, lethal-injection execution protocol, regardless of the 

first drug administered, as being unconstitutional. In effect, he is 

challenging the last two drugs, not the first: not sodium thiopental, not 

pentobarbital, not midazolam.

Id. at 1333. Thus, the Court concluded, Smith’s “midazolam argument is a 

smokescreen, diverting attention from the fact that his Eighth Amendment claim 

challenging the ADOC’s three-drug, lethal-injection protocol is time-barred.” Id.

Next, the District Court observed that Smith “d[id] not address Defendants’ 

contention that his claim, in actuality, is a challenge against the use of any threedrug execution protocol.” Id. at 1334. Accordingly, the Court concluded that 

Smith’s true claim was such a challenge, which “accrued long ago” and was long 

since “time-barred.” Id.

By disregarding the allegations that appeared on the face of Smith’s 

complaint and instead basing its dismissal on only the sufficiency of what it and 

the ADOC deemed “the true nature” of his complaint, the District Court effectively 

reshaped Smith’s complaint into a different claim altogether. It did so despite the 

fact that the original complaint directly challenged midazolam’s ability to render 

the prisoner insensate prior to administration of the second and third drugs in the 

protocol. Then, the Court treated what it viewed as a failure by Smith to 

adequately respond to those arguments as a default on that issue. Such a response 

is not required to survive a Rule 12(b)(6) motion to dismiss. Rule 8, which sets 

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forth the requirements of an adequate pleading, requires in relevant part that a 

sufficient complaint must contain “a short and plain statement of the grounds for 

the court’s jurisdiction,” “a short and plain statement of the claim showing that the 

pleader is entitled for relief,” and “a demand for relief sought.” Fed. R. Civ. P.

8(a). What it does not require is a response by the pleader to arguments made by 

an opposing party based on that party’s subjective interpretation of the pleader’s 

complaint. 

Thus, we review Appellants’ Complaint anew. And we are convinced by 

that review that the Complaint in fact challenges the State’s substitution of 

midazolam for pentobarbital as the first drug in its three-drug protocol. From 

cover to cover, the Complaint trains specifically on midazolam’s alleged inability 

to properly function as an anesthetic. In the Complaint’s second paragraph, 

Appellants allege that midazolam is “a sedative with no analgesic properties” that 

will “create[] an illusion of adequate anesthesia.” Appellants go on to allege that 

“midazolam[] is a benzodiazepine, not a barbiturate like pentobarbital”; as such, 

“[m]idazolam is not designed for use as the sole drug in anesthesia, but as an 

anesthetic adjunct.” The Complaint then sums up its allegations concerning 

midazolam’s ineffectiveness thusly: 

Because of the way midazolam works in the human body, it could 

sedate an individual to the point where he was incapable of 

communicating that he was in pain while doing nothing to suppress 

the experience of pain. Because midazolam is a sedative and not an 

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analgesic, there is a high likelihood that an inmate who receives a 

high dose of midazolam would be unable to respond to the noxious 

stimuli that constitute the ADOC’s consciousness check, but would 

still feel the excruciating effects of the second and third drugs.

Fairly read, then, the crux of Appellants’ Eighth Amendment claim is simply 

that “[u]sing midazolam in conjunction with a paralytic and potassium chloride 

violates Baze, Furman, and any evolving standards of decency.” Put simply, the 

challenge at issue was a specific challenge to the ADOC’s use of midazolam in its 

execution protocol. 

The alternative execution methods Appellants proffered in the Complaint do 

not change the specific nature of the challenge. The ADOC argues that because all 

three of Appellants’ proposed alternatives involve single-drug protocols, their 

specific challenge to midazolam is in truth a general attack on Alabama’s 

continued use of its three-drug lethal injection protocol. The logical conclusion of 

this argument is that a prisoner challenging the use of a particular drug in a threedrug protocol must propose only a procedure keeping the three-drug protocol intact 

in order to avoid having his complaint styled as a “general challenge.” The District 

Court agreed, stating, “to comply with Glossip, [Smith] would be required to 

propose an alternative drug(s), such as sodium thiopental or pentobarbital, to be 

used as the first drug in the ADOC’s three-drug protocol, essentially a return to the 

ADOC’s pre-midazolam protocol.” Smith, 221 F. Supp. at 1334 (emphasis added). 

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Not so. A prisoner must meet two prongs. First, he must show that (1) the 

challenged protocol presents a “substantial risk of serious harm.” Baze, 553 U.S. 

at 50, 128 S. Ct. at 1531 (quotations omitted) (quoting Farmer, 511 U.S. at 842, 

846, and n. 9, 114 S. Ct. at 1970). Second, he must show that the alternatives he 

has proffered will “significantly reduce” that risk and are “feasible” and “readily 

implement[able].” Id. at 52, 128 S. Ct. at 1532. Whether those alternatives consist 

of one drug, two drugs, three drugs, or no drugs is irrelevant. And where, as here,

the statute of limitations would bar a general challenge to a three-drug lethal 

injection protocol, the prisoner must additionally show that the substitution of one 

drug for another represents a “substantial change” in protocol. Gissendaner, 779 

F.3d at 1282. Nothing more or less is required. That the challenger’s proposed 

alternatives all employ a single-drug protocol does not transform a specific 

challenge to one drug’s use in a three-drug protocol into a general challenge to 

three-drug protocols in all their various and sundry combinations.

Because the Complaint alleges facts that, if proven true, would satisfy both 

prongs of the Baze standard, we hold that the District Court erred in concluding 

that Appellants’ claim was time-barred. 

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III.

Accordingly, we reverse the District Court’s dismissal of Appellants’ 

complaint. The case is remanded for further proceedings consistent with this 

opinion. 

REVERSED AND REMANDED.

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