Jason GETSY, Plaintiff-Appellant, v. Ted STRICKLAND, et al., Defendants-Appellees, 577 F.3d 309

OPINION RONALD LEE GILMAN, Circuit Judge. Jason Getsy was convicted of aggravated murder and sentenced to death in 1996. In 2007, he filed an intervenor complaint in a lawsuit brought under 42 U.S.C. § 1983 by fellow inmate Richard Cooey that challenged Ohio’s lethal-injection protocol. After this court concluded that Cooey’s challenge was time barred, see Cooey v. Strickland, 479 F.3d 412 (6th Cir.2007) (Cooey II), the district court dismissed Getsy’s complaint on the same ground. For the reasons set forth below, we AFFIRM the judgment of the district court. I.

Cooey II’s central holding is that the two-year statute of limitations for a § 1983 lawsuit challenging Ohio’s lethal-injection protocol begins to accrue on the latest of the following possible dates: (1) “upon conclusion of direct review in the state court or the expiration of time for seeking such review,” or (2) in 2001, when Ohio adopted lethal injection as the sole method of execution. Cooey II, 479 F.3d at 422.

With reference to the first of the alternative dates, the “conclusion of direct review” occurs when, after the state supreme court has affirmed the defendant’s conviction and sentence on direct appeal, the United States Supreme Court denies the inmate’s petition for a writ of certiorari. Id. (explaining that the conclusion of direct review occurs when the “United States Supreme Court denied direct review”). In this case, after the Supreme Court of Ohio affirmed Getsy’s conviction and sentence, the United States Supreme Court denied Getsy’s petition for a writ of certiorari in 1999. Getsy v.

Ohio, 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999). This means that, under Cooey II, Getsy’s two-year statute of limitations began to accrue in 2001, when Ohio adopted lethal injection as its exclusive method of execution. But Getsy’s complaint was not filed until May 2007, several years after the two-year time frame had already elapsed. We therefore conclude that Getsy’s constitutional challenge to the Ohio’s lethal-injection protocol should be dismissed as untimely pursuant to Cooey II. Despite this reasoning, Getsy maintains that Cooey II does not bar his claim.

He argues that Cooey II is distinguishable because

(1) Baze v. Rees, — U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), created a new constitutional right that Getsy was previously unable to invoke,

(2) Ohio modified its lethal-injection protocol on May 14, 2009, and (3) a panel of this court vacated his death sentence (even though an en banc decision of this court later reinstated the sentence). Getsy also argues that Cooey II was wrongly decided. We will address each of these points in turn. II. Getsy first argues that the Supreme Court’s decision in Baze v.

Rees, — U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), reset the statute-of-limitations period for Getsy because the case purportedly represents the first time that the Supreme Court explicitly recognized the right to challenge lethal-injection protocols under the Eighth Amendment. His basic contention is that Baze created a previously unrecognized constitutional right, so that Getsy could not possibly have been on notice to vindicate that right before the decision was issued. See Trzebuckowski v.

City of Cleveland, 319 F.3d 853, 856 (6th Cir.2003) (“In determining when the cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights.”). Getsy’s argument is unpersuasive. Baze did not, in our view, create a new Eighth Amendment right. The Supreme Court has long recognized the right to challenge execution methods under the Eighth Amendment. Gregg v.

Georgia, 428 U.S. 153, 170, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (“In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster.”) The Supreme Court has also recognized, more than 100 years before Baze was decided, that inmates have the right to challenge death-penalty practices that might cause undue suffering. In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890) (“Punishments are cruel when they involve torture or a lingering death.... ”).

Because we do not believe that Baze created a new constitutional right, Getsy’s attempt to avoid the statute of limitations on that basis is without merit. Nor were constitutional challenges to specific lethal-injection protocols unprecedented before Baze. As early as 1997, at least one federal district court recognized the possibility of bringing such a claim. See Walker v.

Epps, 550 F.3d 407, 416 (5th Cir.2008) (holding that Baze did not reset the date of accrual, in part because “as early as 1997 the United States District Court for the Southern District of Mississippi recognized that inmates could challenge Mississippi’s lethal injection protocol in a § 1983 suit”). The notion that, prior to Baze, protocol challenges were unavailable as a matter of law is thus demonstrably false. So if Baze did not create a new constitutional right, what precisely did Baze accomplish?

The answer, we believe, is that Baze clarified the standards that should apply to the merits of Eighth Amendment protocol challenges. Justice Thomas acknowledged that Baze simply created a new “formulation of the governing standard ” rather than an entirely new right. See Baze, 128 S.Ct. at 1556 (Thomas, J., concurring in the judgment) (emphasis added). This raises the question of whether Baze’s freshly clarified standards trigger a new accrual date. We do not believe that they do.

As previously noted, “[i]n determining when the cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights.” Trzebuckowski, 319 F.3d at 856 (emphasis added). Cooey II held, rightly or wrongly, that the relevant event is the later of either (1) the “conclusion of direct review in the state court or the expiration of time for seeking such review,” or (2) the year 2001, when Ohio adopted lethal injection as the sole method of execution. Cooey II, 479 F.3d at 422.

Nothing in Baze gives us cause to question Cooey II’s determination of when the statute-of-limitations clock begins to tick. In this case, Getsy’s constitutional claim is focused solely on Ohio’s particular application of the lethal-injection method of execution. He contends that someone on the execution team might make a mistake in administering the drug cocktail and that he might suffer a painful death akin to torture as a result.

Because his ability to assert these kinds of challenges was well established long before Baze, as conclusively shown by Getsy’s intervention in the Cooey II case in 2007, we are unpersuaded that Baze caused Getsy’s deadline to file his § 1983 claim to be reset. III. Getsy also attempts to distinguish Cooey II by asserting that the modifications to Ohio’s lethal-injection protocol, which occurred on May 14, 2009, created a new date of accrual.

His basic claim is that the May 14th modifications reset his accrual date because the particular version of the protocol that Ohio adopted on that date was a fact that could not have been discovered through the exercise of due diligence before the time he intervened in Cooey’s suit. But Cooey II has already considered and rejected Getsy’s position. Like Getsy, Cooey had argued that the accrual date was reset because Ohio had changed its protocol in 2006.

Ohio had adopted the following five changes at that time: First, officials removed time deadlines that previously dictated executions begin by a certain hour, and be completed within a narrow time frame. Second, prisoners are given more in-depth medical examinations prior to execution. Third, correctional personnel will make every effort to obtain two sites for heparin locks before proceeding to the execution chamber. Fourth, personnel will no longer use “high pressure” saline injections to check the viability of the intravenous lines.

Instead, a “low pressure” drip of saline will be used to keep the line open and confirm its ongoing viability. Fifth, correctional personnel will observe each inmate’s arms and check for signs of intravenous incontinence while the drugs are being administered to the inmate. Cooey II, 479 F.3d at 424. Despite these alterations, Cooey II declined to reset Cooey’s statute-of-limitations deadline, even though the 2006 changes could not have been previously discovered by Cooey through the exercise of due diligence.

Cooey’s attempt to reset the accrual date based on the above-listed changes was unsuccessful because he failed to make even a prima facie showing that the modifications would increase his suffering. Nor did Cooey attempt to link the five protocol alterations to the expert testimony that already did exist in the record regarding alleged problems with the three-drug lethal-injection cocktail. This is all that Cooey II meant when the court criticized Cooey’s failure to show that the five changes “relate[d] to” Cooey’s “core complaints.” Id.

Turning now to the present case, Getsy points out similar alterations in the protocol. One change is that a member of the “medical team,” while witnessed by another medical-team member, will dispose of unused medications. Other modifications include, for example, more training, the supervision of another medical professional in administering the drugs, and a provision that a noninvasive device may be used to locate a vein. Getsy’s main concern, however, is that officials are now provided with too much discretion in implementing the lethal injection.

But Getsy has failed to make even a prima facie showing that the May 14, 2009 protocol modifications might create undue suffering. The actual 2007 protocol changes in fact explicitly state that the Warden may make policy adjustments “to ensure that the completion of the execution is carried out in a humane, dignified and professional manner.” Execution Protocol No. 01-COM-11 (May 14, 2009), superseding 01-COM-11 (Oct. 11, 2006). This is hardly a change likely to cause increased suffering.

Nor has Getsy attempted to link the May 14, 2009 changes to the evidence previously submitted as part of Cooey’s “core complaints.” (Getsy’s “core complaint,” like Cooey’s, is that the initial drug of the lethal-injection drug cocktail will insufficiently anaesthetize him, thus subjecting him to extreme pain when the other two drugs are administered.) In short, Getsy has not made a prima facie showing that the May 14, 2009 modifications will likely subject him to extreme pain based on either new evidence or on existing evidence that has already been proffered in support of his “core complaints.” We therefore conclude that Getsy has failed to show that the changes of May 14th to Ohio’s lethal-injection protocol suffice to reset his claim-filing deadline.

IV. Getsy’s final argument is based on the fact that a majority of the present panel vacated his death sentence in Getsy v. Mitchell, 456 F.3d 575 (6th Cir.2006) (Getsy I). Although that decision was vacated after this court decided to hear Getsy’s appeal en banc, see Getsy v. Mitchell, 495 F.3d 295 (6th Cir.2007) (m banc) (Getsy II), he nevertheless maintains that the initial panel’s favorable decision reset the date of accrual for statute-of-limitations purposes.

The problem with this argument is that Cooey II held that the accrual period begins for plaintiffs like Getsy either “upon conclusion of direct review in the state court” (1999 for Getsy) or in 2001, when Ohio made lethal injection its sole method of execution. In either case, what happened on collateral review was well beyond the two-year statute of limitations and is thus irrelevant to the accrual of Getsy’s § 1983 claim. Cooey II is therefore not distinguishable on the basis that a panel of this court rendered a favorable decision that was subsequently vacated.

In sum, Getsy’s case was correctly dismissed as untimely by the district court. V. Finally, Getsy argues in great detail that Cooey II was wrongly decided. We are frankly inclined to agree. But our disagreement with Cooey II does not empower us to avoid applying that case’s holding. See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.1985) (concluding that one panel of this court cannot overrule the holding of a prior panel unless the prior case is superseded by (1) this court sitting en banc or (2) a subsequent decision of the Supreme Court).

This panel therefore has no authority to reverse the district court below on the basis that Cooey II might have been erroneously decided. VI. For all of the reasons set forth above, we AFFIRM the judgment of the district court.