## Facts

- Alabama adopted lethal injection in 2002 and used a three-drug protocol that evolved over time due to drug-availability constraints.
- Alabama replaced barbiturates previously used as the first drug with midazolam as the initial drug in its three-drug protocol.
- Several Alabama death-row prisoners filed consolidated 42 U.S.C. § 1983 actions alleging the midazolam-based protocol created a substantial risk of severe pain under the Eighth Amendment.
- To meet method-of-execution pleading requirements, plaintiffs identified lethal injection using pentobarbital (instead of midazolam) as an alleged feasible and available alternative.
- In earlier litigation, the same district judge had made a factual finding that pentobarbital was not available to Alabama.
- In these consolidated cases, the district court took judicial notice of its prior finding that pentobarbital was unavailable and granted summary judgment to Alabama officials on the ground that plaintiffs failed to show an available alternative method.

## Issues

1. Whether the district court improperly used judicial notice at summary judgment to treat pentobarbital’s unavailability as an established fact, thereby defeating plaintiffs’ proposed alternative method under Eighth Amendment standards.
2. Whether the law-of-the-case doctrine barred plaintiffs’ Eighth Amendment method-of-execution claims based on prior lethal-injection litigation.
3. Whether the claims were time-barred, including whether the substitution of midazolam for pentobarbital constituted a substantial change in the execution protocol affecting limitations.

## Decision

- The Eleventh Circuit vacated the grant of summary judgment and remanded.
- The court held that genuine disputes of material fact existed regarding pentobarbital’s availability and that the district court erred by using judicial notice to resolve that dispute against plaintiffs at summary judgment.
- The court rejected the argument that the law-of-the-case doctrine barred the claims.
- The court declined to decide the statute-of-limitations defense because the district court had not addressed it and because it required fact-finding on whether the protocol change was substantial.

## Legal Principles

- In Eighth Amendment method-of-execution challenges, plaintiffs must show a substantial risk of severe pain and identify a feasible, readily implemented, and available alternative method.
- Federal Rule of Evidence 201 does not permit judicial notice of adjudicative facts that are reasonably disputed; a court cannot use judicial notice to import prior factual findings to resolve a contested issue at summary judgment.
- Law-of-the-case generally applies to issues decided earlier in the same litigation and does not automatically preclude similar claims by different plaintiffs in separate actions involving changed factual conditions.
- Whether a change to an execution protocol is a “substantial change” for limitations purposes is fact-dependent and generally requires a developed record and district-court findings.

## Conclusion

The Eleventh Circuit required further proceedings because the availability of pentobarbital was a contested factual question that could not be settled through judicial notice at summary judgment, and because related defenses (including limitations) required district-court consideration supported by fact-finding.


Grayson v. Warden, 869 F.3d 1204 (11th Cir. 2017)