[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-12663-P

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D.C. Docket No. 1:14-cv-01827-WBH

MARCUS A. WELLONS

 Plaintiff - Appellant,

versus

COMMISSIONER, 

GEORGIA DEPARTMENT OF CORRECTIONS,

et al., 

 Defendants - Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

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(June 17, 2014)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Petitioner Marcus A. Wellons has appealed today from the district court’s 

denial of his 42 U.S.C. § 1983 action seeking a temporary restraining order, a stay

of his execution, a preliminary injunction, and a request for declaratory judgment. 

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He is scheduled to be executed by lethal injection today at 7:00 p.m. Upon 

thorough consideration of the parties’ arguments and prevailing law, we find that 

Wellons has not established a substantial likelihood of success on the merits of his 

Eighth Amendment or other constitutional claims. 

I. BACKGROUND

Wellons was convicted of the malice murder and rape of fifteen-year-old 

India Roberts on June 6, 1993. The Supreme Court denied his petition for writ of 

certiorari on direct appeal. Wellons v. Georgia, 519 U.S. 830, 117 S. Ct. 97 

(1996). Following denial of state habeas relief, Wellons filed a federal petition for 

writ of habeas corpus in the Northern District of Georgia, which was also denied. 

This court affirmed the denial of habeas relief, Wellons v. Hall, 554 F.3d 923 (11th 

Cir. 2006), but the Supreme Court granted his petition and remanded for further 

consideration, Wellons v. Hall, 558 U.S. 220, 130 S. Ct. 727 (2010) (per curiam). 

After remanding Wellons’s case to the district court for further proceedings 

consistent with the Supreme Court’s opinion, we affirmed the district court’s 

denial of Wellons’s habeas petition. Wellons v. Warden, 695 F.3d 1202 (2012). 

The Supreme Court denied Wellons’s petition for writ of certiorari. Wellons v. 

Humphrey, 134 S. Ct. 177 (2013).

Defendants have scheduled Wellons for execution on June 17, 2014. 

Following denial of his state appeals, Wellons filed a Section 1983 complaint 

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seeking a temporary restraining order and stay of execution before the district 

court for the Northern District of Georgia. Wellons also sought a declaratory 

judgment that Defendants’ refusal to disclose information concerning the 

provenance of their lethal injection drugs and the qualification of their execution 

team violates his rights pursuant to the First, Fifth, Eighth and Fourteenth 

Amendments. Wellons argues that Defendants have refused to disclose how they 

plan to execute him, relying upon Georgia’s recent legislation that classifies all 

“identifying information” about a “person or entity who participates in or 

administers the execution of a death sentence . . . [or] that manufactures, supplies, 

compounds, or prescribes the drugs, medical supplies, or medical equipment” used 

in an execution as a “confidential state secret” not subject to disclosure. O.C.G.A. 

§ 42-5-36(d) (effective July 1, 2013) (the “Lethal Injection Secrecy Act”). 

Wellons asserts that the only information Defendants have divulged 

concerning his execution is a copy of the lethal injection procedure that they 

adopted on July 17, 2012, which outlines a one-drug injection protocol of 

“pentobarbital.” Because Defendants have not had any FDA-approved 

pentobarbital in their possession since March of 2013, but have indicated that they 

obtained pentobarbital for this execution, Wellons argues that they may use a 

substance that purports to be pentobarbital, but that has been manufactured from 

unknown ingredients and in unknown circumstances by a compounding pharmacy. 

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Further, Wellons explains that the Supreme Court of Georgia has empowered 

Defendants to change their protocol at will and with no supervision or meaningful 

notice to the prisoner or public. See Hill v. Owens, 738 S.E. 2d 56 (Ga. 2013). 

Wellons presents several arguments for why his lack of knowledge about the drug 

that will be used at his execution violates his constitutional rights. First, he details 

the risks of using a compounded pentobarbital from an undisclosed source, arguing 

that it poses a substantial threat of undue pain and suffering. Second, Wellons 

argues that Oklahoma’s recent botched execution of Clayton Lockett highlights the 

risks of Defendants’ refusal to disclose the qualifications of the personnel who will 

administer Wellons’s execution. 

The district court held a hearing on June 16, 2014 on Wellons’s claims 

regarding the provenance of the drugs to be used in his execution and the expertise 

of the personnel who will carry out the execution. The district court concluded that 

Wellons was not entitled to the declaratory or injunctive relief that he sought, and 

granted the Defendants’ motion to dismiss Wellons’s Section 1983 claims. 

Specifically, the district court found that Wellons’s assertion that there may be a 

problem with the pentobarbital or that the person placing the intravenous lines into 

him may not be qualified to perform the task was mere speculation and “cannot 

substitute for evidence that the use of the drug is sure or very likely to cause 

serious illness and needless suffering.” Brewer v. Landrigan, __ U.S. __ , 131 S. 

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Ct. 445 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50, 128 S. Ct. 1520 (2008)); see 

Mann v. Palmer, 713 F.3d 1306, 1315 (11th Cir.), cert. denied, 133 S. Ct. 1752 

(2013).

II. STANDARD OF REVIEW

A temporary restraining order or a stay of execution is appropriate only if 

the movant demonstrates: “(1) a substantial likelihood of success on the merits; (2) 

that the preliminary injunction is necessary to prevent irreparable injury; (3) that 

the threatened injury outweighs the harm the preliminary injunction would cause 

the other litigant; and (4) that the preliminary injunction would not be averse to the 

public interest.” Chavez v. Florida SP Warden, 742 F.3d 1267, 1271 (11th Cir.), 

cert. denied 134 S. Ct. 1156 (2014).

We review a district court’s denial of a stay of execution for abuse of 

discretion. Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011) (per curiam); 

Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir. 2011) (per curiam). 

III. DISCUSSION

A. Statute of Limitations

As a preliminary matter, we note that the district court did not address 

whether Wellons’s § 1983 claims were time barred. Claims brought pursuant to 42 

U.S. § 1983 are subject to the statute of limitations period governing personal 

injury actions in the state where the action is brought. Crowe v. Donald, 528 F.3d 

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1290, 1292 (11th Cir. 2008). In Georgia, the statute of limitations for tort actions 

is two years. DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir. 2011). This 

court has explained that a petitioner’s “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 changes execution protocol.” 

McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). In Arthur v. Thomas, we 

held that whether a significant change has occurred in a state’s method of 

execution is a fact dependent inquiry. 674 F.3d 1257, 1260 (11th Cir. 2012) 

(remanding for a hearing to fully consider whether the change in Alabama’s 

execution protocol constituted a “significant change” which would reset 

petitioner’s statute of limitations). 

Wellons argues that the Eighth Amendment entitles him to the information 

necessary to determine whether Georgia’s method of execution is cruel and 

unusual.1

 Defendants gave Wellons the 2012 Georgia Department of Correction 

Lethal Injection Protocol in May 2014, and Wellons concedes that Defendants 

have indicated that they have obtained pentobarbital for his execution. This 2012 

protocol sets forth the state’s one-drug lethal injection protocol of using five grams 

of pentobarbital administered by trained medical personnel, including a physician 

 1 Wellons insists that he is not making a “method of execution” claim, but rather an 

Eighth Amendment challenge premised on his lack of information regarding the method and 

manner of his upcoming execution. As we see it, however, Wellons’s challenge boils down to a 

method of execution challenge. Cf. Powell v. Thomas, 641 F.3d 1255, 1257-58 (11th Cir. 2011). 

For the purposes of this case, the statute of limitations analysis is the same.

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and an IV nurse. However, because Defendants have not had any FDA-approved 

pentobarbital in their possession since March of 2013, Wellons believes that they 

will inject him with a compounded pentobarbital from an unknown manufacturer. 

Wellons appears to be arguing that Defendants will not follow their Legal Injection 

Protocol, or alternatively that changing from pentobarbital to a compound 

pentobarbital could constitute a “significant change” restarting the statute of 

limitations. Arthur, 674 F.3d at 1260. However, the Georgia Department of 

Corrections’ anticipated use of an adulterated pentobarbital does not establish a 

“significant alteration in the method of execution.” See Mann, 713 F.3d at 1314 

(11th Cir. 2014) (“Because Mann cannot establish that the substitution of 

pentobarbital constituted a significant alteration to the method of execution in 

Florida, all of his claims not barred by res judicata are untimely.”). Nor has 

Wellons alleged facts sufficient to show that Georgia’s legal injection procedure 

has “substantially changed” based on the lethal injection secrecy act adopted by the 

Georgia legislature in March of 2013, which the Georgia Supreme Court has 

determined is constitutional. O.C.G.A. § 42-5-36; see Owens v. Hill, No. 

S14A0092, 2014 Ga. LEXIS 400 (Ga. May 19, 2014).

Therefore, Wellons last became subject to a substantially changed execution 

protocol in October 2001, when the Georgia Supreme Court declared that 

execution by electrocution violated the state constitution and directed any further 

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executions to be carried out by lethal injection. Dawson v. State, 554 S.E. 2d 137, 

139 (2001); see DeYoung, 646 F.3d at 1324. Thus, it appears to us that the statute 

of limitations began to run in 2001 and has expired. Nevertheless, given the 

critical nature of Wellons’s challenges and district court’s treatment of Wellons’s 

claims, we proceed to the merits of his claims as well.

B. Wellons’s Eighth Amendment Challenge

Wellons argues that the Eighth Amendment entitles him to the information 

required to determine whether Georgia’s lethal injection procedure is cruel and 

unusual. Specifically, the use of pentobarbital from a compounding pharmacy can 

add an unacceptable risk of pain, suffering, and harm because compounding 

pharmacies are not subject to the FDA regulation. Wellons maintains that the lack 

of oversight can lead compounding pharmacies, even those operating in good faith,

to make critical mistakes in the production of drugs. Wellons also argues that he 

has not been permitted to learn about the qualifications of the individuals who will 

carry out his execution and has presented evidence that if pentobarbital is injected 

improperly, it can cause serious chemical burns. 

Wellons argues that the Supreme Court has not hesitated to recognize a due 

process right to the information necessary to determine whether an Eighth 

Amendment violation exists. See Ford v. Wainwright, 477 U.S. 399, 417–18, 106 

S. Ct. 2595 (1986) (holding that Florida’s procedures for determining sanity of a 

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death row prisoner were inadequate to afford a full and fair hearing on the issue 

and that the petitioner was entitled to an evidentiary hearing on the issue of his 

competence to be executed). In short, Wellons insists that Defendants are denying 

the information necessary to determine whether his Eighth Amendment rights are 

being violated—while claiming not to implicate his rights at all. Defendants insist, 

however, that Wellons’s claim is speculative because he is arguing that the 

compounded pentobarbital could be imperfect, or that something could go wrong 

with the administration of the drug by prison personnel. Defendants argue that just 

because an execution may inadvertently result in pain, this does not establish the 

“objectively intolerable risk of harm” necessary to establish an Eighth Amendment 

violation. Baze, 553 U.S. at 51, 128 S. Ct. at 1531 (internal quotation marks 

omitted).

In order to prevail on an Eighth Amendment challenge, Wellons must 

demonstrate that the State is being deliberately indifferent to a condition that poses 

a substantial risk of serious harm to him. Indeed, where an Eighth Amendment 

cruel and unusual punishment claim alleges the risk of future harm, “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.’” Baze, 553 U.S. at 50 

(quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)). “In the lethal 

injection context, this standard requires an inmate to show an objectively 

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intolerable risk of harm that prevents prison officials from pleading that they were 

subjectively blameless for purposes of the Eighth Amendment.” DeYoung, 646 

F.3d at 1325 (internal quotations and citation omitted). A plaintiff must also show 

that the risk of severe pain is “substantial when compared to the known and 

available alternatives.” Baze, 553 U.S. at 61. 

The district court concluded that Wellons failed to establish a claim that the 

state has prevented him from asserting an Eighth Amendment claim, noting that 

state government officials are presumed to carry out their duties in a good-faith 

manner and in compliance with federal laws, citing Alas. Dep’t of Envtl. 

Conservation v. E.P.A., 540 U.S. 461, 507, 124 S. Ct. 983, 1013 (2004). The 

district court presumes that Defendants will act in good faith in selecting the 

pentobarbital and appointing the team that will carry out Wellons’s execution. 

Accordingly, the district court concluded that Wellons’s arguments were mere 

speculation which “cannot substitute for evidence that the use of the drug is sure or 

very likely to cause serious illness and needless suffering.” Landrigan, 131 S. Ct. 

at 445 (internal quotation marks omitted). 

Upon independent review, Wellons has not established that the trial court 

abused its discretion in denying the stay of his execution. We have held that 

speculation that a drug that has not been approved will lead to severe pain or 

suffering “cannot substitute for evidence that the use of the drug is sure or very 

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likely to cause serious illness and needless suffering.” Mann, 713 F.3d at 1315. 

Here, Wellons’s argument that the compounded pentobarbital may be defective or 

the personnel administering the execution may be untrained is insufficient to 

establish a substantial likelihood of success on the merits of his Eighth 

Amendment claim. See, e.g., Chavez, 742 F.3d at 1272; see also Mann, 713 F.3d 

at 1315 (“The Supreme Court has rejected the notion that the absence of approval 

by the Administration is sufficient to establish a substantial risk of severe pain.”); 

Sells v. Livingston, No. 14-70014, 2014 WL 1316339 (5th Cir. Apr. 2, 2014)

(“Plaintiff argues that because the State has transitioned to a new source for the 

compounded pentobarbital, there are unknowns because of the possibility of 

improper compounding or contamination. But plaintiff cannot rely on speculation 

alone. Plaintiffs must point to facts or evidence based on science and fact showing 

the likelihood of severe pain.”), cert. denied, 134 S. Ct. 1787, 188 L. Ed. 2d 612 

(2014); In re Lombardi, 741 F.3d 888, 896-97 (8th Cir. Jan. 24, 2014) (“Without a 

plausible allegation of a feasible and more humane alternative method of 

execution, or a purposeful design by the State to inflict unnecessary pain, the 

plaintiffs have not stated an Eighth Amendment claim based on the use of 

compounded pentobarbital. . . . As to the other claims raised by the plaintiffs, the 

identities of the prescribing physician, pharmacist, and laboratory are plainly not 

relevant.”), cert. denied, 134 S. Ct. 1790 (2014) and reh’g denied, 741 F.3d 903 

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(8th Cir. 2014). Moreover, Wellons has “failed to show that any . . . alternative

procedure or drug is ‘feasible, readily implemented, and in fact significantly 

reduce[s] a substantial risk of severe pain.’” Mann, 713 F.3d at 1315 (alteration in 

original) (quoting Baze, 553 U.S. at 52).

C. Wellons’s First, Fifth, and Fourteenth Amendment Challenges

Wellons maintains that due process entitles a person whose constitutional 

rights will be affected by state actions to, at minimum, both notice of those actions 

and an opportunity to be heard in a meaningful manner. See Fuentes v. Shevin, 

407 U.S. 67, 80, 92 S. Ct. 1983, 1994 (1972) (“Parties whose rights are to be 

affected are entitled to be heard; and in order that they may enjoy that right they 

must first be notified.” (internal quotation marks omitted)). Additionally, Wellons 

argues that Defendants’ refusal to provide him with information regarding his 

execution denies him his First Amendment right of access to governmental 

proceedings. Wellons maintains that the Supreme Court has guaranteed a qualified 

right of access to governmental proceedings, in order to “ensure that the individual 

citizen can effectively participate in and contribute to our republican system of 

self-government.” Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 

U.S. 596, 604, 102 S. Ct. 2613, 2619 (1982). When determining whether the 

public has a First Amendment right of access to a particular governmental 

proceeding, reviewing courts must inquire into two “complementary 

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considerations”: (1) “whether the place and process have historically been open to 

the press and general public” and (2) “whether public access plays a significant 

positive role in the functioning of the particular process in question.” PressEnterprise Co. v. Superior Court, 478 U.S. 1, 8–9, 106 S. Ct. 2735, 2740 (1986). 

Wellons argues that both criteria are met. First, executions have historically been 

open events. Indeed, prior to Georgia’s adoption of the Lethal Injection Secrecy 

Act, Wellons insists that Defendants would, in response to Open Records Act 

requests, provide prisoners and the public with detailed information about the 

drugs used in executions. Second, public access to information certainly plays a 

positive role in the functioning of capital punishment. Wellons insists that an 

informed public debate is critical in determining “‘whether execution by lethal 

injection comports with the evolving standards of decency which mark the 

progress of a maturing society.’” Cal. First Amendment Coalition v. Woodford, 

299 F.3d 868, 876 (9th Cir. 2002) (citing Trop v. Dulles, 356 U.S. 86, 101, 78 S. 

Ct. 590 (1958)).

The district court concluded, however, that Wellons’s due process claim was 

merely a restatement of his Eighth Amendment claims, and was too speculative to 

succeed on the merits. With respect to Wellons’s First Amendment claim, the 

district court agreed with Defendants that while there may be First Amendment 

implications involved in the openness of government operations, the cases Wellons 

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relies upon turn on the public’s, rather than the individual’s, need to be informed 

so as to foster debate. See Pell v. Procunier, 417 U.S. 817, 831, 94 S. Ct. 2800, 

2808 (1974). The district court determined that Wellons did not have a First 

Amendment right to access this information from Defendants.2

We agree with the judgment of the district court. Neither the Fifth, 

Fourteenth, or First Amendments afford Wellons the broad right “to know where, 

how, and by whom the lethal injection drugs will be manufactured,” as well as “the 

qualifications of the person or persons who will manufacture the drugs, and who 

will place the catheters.” See Lewis v. Casey, 518 U.S. 343, 354 (1996) 

(“[S]tatements [in Bounds] appear to suggest that the State must enable the 

prisoner to discover grievances, and to litigate effectively once in court. . . .These 

elaborations upon the right of access to the courts have no antecedent in our preBounds cases, and we now disclaim them.” (citing Bounds v. Smith, 430 U.S. 817, 

825 (1977)); Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013) (“There is no 

violation of the Due Process Clause from the uncertainty that Louisiana has 

imposed on Sepulvado by withholding the details of its execution protocol.”); 

Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011) (holding that the prisoners, 

who argued that the Arkansas Method of Execution Act violated the due process 

 2 Although the district court did not explicitly cite Wellons’s burden for achieving the 

injunctive relief he seeks, see Chavez, 742 F.3d at 1271, we interpret its conclusion as a finding 

that Wellons did not establish a substantial likelihood of success on the merits of his due process 

or First Amendment claims. 

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clause because its secrecy denied them “an opportunity to litigate” their claim that 

the execution protocol violated the Eighth Amendment, failed to state a plausible 

due process access-to-the-courts claim). Wellons has not established a substantial 

likelihood of success on the merits of his claim that the dearth of information 

regarding the nature of the pentobarbital that will be used in his execution and the 

expertise of those who will carry it out violates the First Amendment or his right to 

due process. This ground is also a sufficient basis to conclude that the district 

court did not abuse its discretion in concluding that Wellons is not entitled to 

injunctive relief on these claims. 

IV. CONCLUSION

We conclude that the district court’s determination, following an evidentiary 

hearing, to deny Wellons a stay of execution or a temporary restraining order was 

not an abuse of discretion. Wellons’s Motion for a Stay of Execution is DENIED.

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WILSON, Circuit Judge, concurring in judgment:

With respect to Wellons’s Eighth Amendment claim, I agree that the district 

court did not abuse its discretion in concluding that Wellons failed to show the 

likelihood of success on the merits required for injunctive relief. However, I write 

separately to highlight the disturbing circularity problem created by Georgia’s 

secrecy law regarding methods of execution in light of our circuit precedent.

We explained in Mann v. Palmer that “[a]fter Baze, an inmate who seeks a 

stay of execution must establish that the lethal injection protocol of his state creates 

a demonstrated risk of severe pain that is substantial when compared to the known 

alternatives.” 713 F.3d 1306, 1315 (11th Cir. 2013) (emphasis added). Although 

Wellons insists that his is not a “method of execution” claim, in order to succeed 

under the Eighth Amendment, he must show that the manner in which Georgia 

intends to execute him generates “a substantial risk of serious harm or an 

objectively intolerable risk of harm.” Baze v. Rees, 553 U.S. 35, 51, 128 S. Ct. 

1520, 1532 (2008) (internal quotation marks omitted). Possibly due to his lack of 

information about the compound pentobarbital that will be used and the expertise 

of the people who will administer his execution, Wellons has not shown such a 

risk. Indeed, how could he when the state has passed a law prohibiting him from 

learning about the compound it plans to use to execute him? Although Wellons 

has been given the 2012 Lethal Injection Protocol which indicates that 

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pentobarbital will be used, he also knows that Defendants have not had any FDAapproved pentobarbital in their possession since March of 2013, and thus can only 

assume they will be using a substance that purports to be pentobarbital but has 

been manufactured from unknown ingredients and in unknown circumstances by a 

compounding pharmacy. Without additional information about the method of his 

execution, it seems nearly impossible for Wellons to make the argument that 

Defendants’ planned execution creates an “objectively intolerable risk of harm.” 

Id.

Similarly, while I agree that Wellons has not provided sufficient support for 

his general due process or First Amendment claim, I have serious concerns about 

the Defendants’ need to keep information relating to the procurement and nature of 

lethal injection protocol concealed from him, the public, and this court, especially 

given the recent much publicized botched execution in Oklahoma. Unless judges 

have information about the specific nature of a method of execution, we cannot 

fulfill our constitutional role of determining whether a state’s method of execution 

violates the Eighth Amendment’s prohibition against cruel and unusual punishment 

before it becomes too late. 

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