author: BALDOCK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ishmael PETTY, Defendant-Appellant. National Association of Criminal Defense Lawyers; Colorado Criminal Defense Bar, Amici Curiae.
    No. 15-1421
    United States Court of Appeals, Tenth Circuit.
    FILED May 22, 2017

      Gail K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder, Colorado, for Defendant-Appellant.
    J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Ap-pellee.
    Norman R. Mueller, Haddon Morgan & Foreman P.C., Denver, Colorado; Kyle W. Brenton, Davis Graham & Stubbs, LLP, Denver, Colorado, with him on the brief as Amici Curiae for the Appellant.
    Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
   BALDOCK, Circuit Judge.

The Government charged Defendant Ishmael Petty with assaulting three employees at the federal correctional facility in Florence, Colorado, in violation of 18 U.S.C. § 111(a)(1) & (b). At Defendant’s trial, the district court tendered the jury the following reasonable doubt instruction. This instruction tracks verbatim the Tenth Circuit’s Pattern Jury Instruction on reasonable doubt.

The government has the burden of proving the defendant guilty beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. It is only required that the government’s proof exclude any “reasonable doubt” concerning the defendant’s guilt. A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case.
If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crimes charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

ROA Vol. I, at 88; see 10th Cir. Crim. PJI No. 1.05 (2011 ed.). The district court overruled Defendant’s objections to the instruction, and a jury found Defendant guilty. The court sentenced Defendant, who was already serving a life sentence for the murder of a fellow inmate, to three additional, consecutive, 20-year terms of imprisonment.

On appeal, Defendant persists in complaining about the district court's reasonable doubt instruction. Generally, Defendant contends the court’s instruction diluted the Government’s burden of proof contrary to his Fifth Amendment right to due process and his Sixth Amendment right to a fair trial. Specifically, Defendant complains the instruction is flawed in three respects. First, Defendant asserts the phrase “firmly convinced” connotes a lesser standard of proof than proof beyond a reasonable doubt. Second, the instruction, according to Defendant, undermines the degree of proof required because it fails to communicate that the Government’s burden is a heavy one, requiring a greater modicum of proof than a civil case. Third, Defendant says the instruction erroneously fails to inform the jury that reasonable doubt may arise not only from the evidence but also from the lack of evidence. Exercising jurisdiction under 28 U.S.C. § 1291, we reject Defendant’s argument that the reasonable doubt instruction as tendered is unconstitutional, and affirm.

I.

Whether a reasonable doubt instruction comports with the Constitution is a legal inquiry subject to de novo review. Tillman v. Cook, 215 F.3d 1116, 1123 (10th Cir. 2000). Nonetheless, a district court still “retain[s] considerable latitude in instructing juries on reasonable doubt.” United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995). Such latitude arises from the established precept that “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). “[S]o long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Id.

Decisions adjudicating challenges to reasonable doubt instructions—the overwhelming majority of which are unfavorable to the defense—are legion. Undoubtedly, such challenges are a consequence of “the difficulties inherent in any attempt to define the [standard] in great detail or to characterize precisely what sort of doubt might be reasonable.” United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir. 1974); see also Victor, 511 U.S. at 5, 114 S.Ct. 1239 (recognizing the reasonable doubt standard “defies easy explication”).

As an abstraction the concept of reasonable doubt is not susceptible to description by terms with sharply defined, concrete meanings. Resort must be to wording or language, the meaning of which will necessarily be colored by the experience of each individual. Thus, while the term itself is common and readily associated by most individuals with our criminal justice system, it is unlikely that two persons would supply the same characterization of its meaning. These difficulties have been acknowledged by the Supreme Court, and the Court has expressed its doubts about the benefit of attempting a definition more elaborate than the term “reasonable doubt” itself.

Pepe, 501 F.2d at 1143-44 (citing Dunbar v. United States, 156 U.S. 185, 199, 15 S.Ct. 325, 39 L.Ed. 390 (1895)). Thus, at the end of the day, “the test we properly apply in evaluating the constitutionality of a reasonable doubt instruction is not whether we find it exemplary.” Victor, 511 U.S. at 27, 114 S.Ct. 1239 (Ginsburg, J., concurring). Perhaps no such instruction is. Rather, the proper inquiry requires us to consider the instructions in their entirety and ask whether a “reasonable likelihood” exists that the jury “understood the instructions to allow conviction based on proof insufficient to meet the [reasonable doubt] standard.” Id. at 6, 114 S.Ct. 1239 (majority opinion).

II.

Defendant first takes issue with the instruction’s statement that “[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.” Defendant claims the district court’s formulation of the applicable standard understates the degree of certainty a jury must reach before returning a guilty verdict. Defendant says proof that leaves a juror “firmly convinced” of a defendant’s guilt does not require proof of guilt beyond a reasonable doubt, but instead requires something akin to clear and convincing proof. Unfortunately for Defendant, Tenth Circuit precedent says otherwise.

In Conway, we held the district court did not err in equating proof beyond a reasonable doubt with proof that leaves one firmly convinced of a defendant’s guilt.

In other words, the court’s “firmly convinced” formulation of the reasonable doubt standard did not understate the degree of certainty a jury must reach to find a criminal defendant guilty. To be sure, the district court’s instruction in the present case contains language not appearing in the instruction at issue in Conway (language we shall discuss subsequently). The wording of the instruction challenged here, however, encompasses entirely the wording of the instruction challenged in Conway. That instruction read:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt, and find him not guilty.

Conway, 73 F.3d at 980.

Like the challenged instruction in Conway, the instruction here (1) informed the jury that it should not find Defendant guilty unless it was firmly convinced of his guilt and (2) cautioned the jury that it must acquit Defendant in the presence of “a real possibility that he is not guilty.” As we held in Conway, “the ‘firmly convinced’ language, juxtaposed with the insistence that a jury must acquit in the presence of ‘a real possibility’ that the defendant is not guilty, is a correct and comprehensible statement of the reasonable doubt standard.” Id.; see also United States v. Barrera-Gonzales, 952 F.2d 1269, 1271 (10th Cir. 1992).

This brings us to Defendant’s second complaint about the district court’s reasonable doubt instruction. Defendant emphasizes the word “only” in the sentence that reads: “It is only required that the government’s proof exclude any ‘reasonable doubt’ concerning the defendant’s guilt.” (emphasis added). Notably, this sentence did not appear in the instruction at issue in Conway. According to Defendant, to cast the reasonable doubt standard in terms of something that is “only required” undermines the Government’s burden by suggesting its burden is not heavy or difficult to meet. Defendant’s argument is not without superficial force. But the wording Defendant-emphasizes “cannot be sequestered from its surroundings.” Victor, 511 U.S. at 16, 114 S.Ct. 1239. We do not read selected portions of a jury instruction in isolation, removed from their context. See Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) (accepting the “well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge”).

The sentence immediately preceding the statement about which Defendant complains explains that “in criminal eases the law does not require proof that overcomes every possible doubt.” The statement to which Defendant objects next contrasts the reasonable doubt standard with the notion of absolute certainty. The word “only” points out that proof beyond a reasonable doubt is not proof that overcomes all doubt. See United States v. Kieffer, 681 F.3d 1143, 1152 (10th Cir. 2012). The following sentence, which also does not appear in the Conway instruction, then properly describes reasonable doubt as a “doubt based on reason and common sense after careful consideration of all the evidence in the case.” See id. at 1159. In other words, the instruction first tells the jury what the reasonable doubt standard does not require, i.e., “absolute certainty” of guilt, and second tells the jury what reasonable doubt is, i.e., a doubt “based on reason and common sense.” We discern no constitutional error in the instruction’s approach.

Defendant’s final challenge to the district court’s reasonable doubt instruction is based on its failure to inform the jury that reasonable doubt may arise from a lack of evidence. But the realization that the Government will fail to meet its burden of proof if it fails to present the necessary evidence of guilt is quite apparent from the instruction considered as a whole, in particular the statements that (1) “[t]he government has the burden of proving the defendant guilty beyond a reasonable doubt,” (2) “the government’s proof [must] exclude any ‘reasonable doubt’ concerning the defendant’s guilt, (3) “[t]he law does not require a defendant to prove his innocence or produce any evidence at all,” and (4) the jury must base its verdict on “consideration of the evidence.” Any reasonable juror would understand from the instruction’s wording that the Government must present evidence sufficient to establish Defendant’s guilt beyond a reasonable doubt and that a failure to present evidence sufficient to meet its burden must result in Defendant’s acquittal.

III.

The reasonable doubt instruction Defendant advocates—one that contrasts the Government’s burden of proof in a criminal case with that in a civil case, informs the jury of the strict or heavy nature of the Government’s burden in a criminal case, and tells the jury reasonable doubt may arise from the Government’s failure to present sufficient evidence—may well pass constitutional muster. But such recognition does not inevitably lead to the conclusion that the reasonable doubt instruction the district court tendered to the jury in this case, ie., an instruction identical to the Tenth Circuit’s Pattern Jury Instruction on reasonable doubt, denied Defendant due process or deprived him of a fair trial. For the reasons we have stated, we conclude the reasonable doubt instruction at issue, taken as a whole, adequately conveyed the concept of reasonable doubt to the jury. This is to say no reasonable likelihood exists that the jury selected to determine Defendant’s guilt applied the instruction in a manner violative of the Constitution.

AFFIRMED.

      . In Dunbar, the Supreme Court observed: "Repeated attempts have been made by judges to make clear to the minds of the jury what is meant by the words ‘reasonable doubt’; but ... '[ajttempts to explain the term "reasonable doubt” do not usually result in making it any clearer to the minds of the jury.' " Dunbar, 156 U.S. at 199, 15 S.Ct. 325 (quoting Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481 (1880)).

      .’ Worth noting here is that the Supreme Court opined in Victor that "[a]n instruction cast in terms of an abiding conviction as to guilt ... correctly states the government's burden of proof.” Victor, 511 U.S. at 14-15, 114 S.Ct. 1239. Two years prior, we opined in Barrera-Gonzales that "the term[] 'firmly convinced’ requires more persuasion than terms such as 'reasonable certainty1 or ‘abiding conviction as to guilt.’ ” Barrera-Gonzales, 952 F.2d at 1273. In fact, we observed that "arguably a person who is 'firmly convinced’ [of a defendant’s guilt] has no reasonable doubt.” Id. at 1271.


source: Caselaw Access Project

author: HULL, Circuit Judge: JORDAN, Circuit Judge,

license: Public Domain

text:
    J.W. LEDFORD, Jr., Plaintiff-Appellant, v. COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Other Unknown Employees and Agents, Defendants-Appellees.
    No. 17-12167 Non-Argument Calendar
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 05/15/2017

      Gerald Wesley King, Jr., Federal Defender Program, Inc., Mary Elizabeth Wells, Law Office of M.E. Wells, ATLANTA, GA, John D. Cline, Law Office of John D. Cline, SAN FRANCISCO, CA, for Plaintiff-Appellant.
    Beth Attaway Burton, Sabrina Graham, Attorney General’s Office, ATLANTA, GA, for Defendants-Appellees.
    Before ED CARNES, Chief Judge, HULL and JORDAN, Circuit Judges.
   HULL, Circuit Judge:

Under a sentence of death, J.W. Led-ford, Jr. has his execution scheduled for Tuesday, May 16, 2017, at 7:00 p.m. On Thursday, May 11, 2017, a mere five days before his execution, Ledford challenged Georgia’s method of his execution by filing a civil complaint under 42 U.S.C. § 1983. Since 2013, Georgia’s execution protocol has provided for lethal injection by the administration of a single drug: five grams (5,000 milligrams) of compounded pento-barbital.

After briefing, the district court denied Ledford’s motion for a temporary restraining order and dismissed Ledford’s § 1983 complaint. The district court determined, inter alia, (1) that Ledford’s § 1983 claims are time-barred; (2) that, in any event, Ledford had not shown a substantial likelihood of success on the merits of his § 1983 claims; and (3) that, alternatively, Ledford had not carried his burden to demonstrate that equitable relief, such as a stay, should be granted at this late hour.

On May 12, 2017, Ledford filed a Notice of Appeal. On May 15, 2017, at 11:00 a.m., Ledford filed an “Emergency Motion for an Order Staying the Execution.” After careful review, we deny Ledford’s motion.

I. BACKGROUND

In 1992, Ledford murdered his 73-year-old neighbor, Dr. Harry Johnston, Jr., robbed Dr. Johnston’s wife, and burglarized the Johnstons’ home, tying up Mrs. Johnston with a rope. Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 608-09 (11th Cir. 2016). A Georgia jury convicted Ledford of murder, armed robbery, burglary, and kidnapping, and “unanimously recommended imposition of the death penalty.” Id. at 614. The Supreme Court of Georgia affirmed Led-ford’s conviction and sentence on direct appeal. Ledford v. State, 264 Ga. 60, 439 S.E.2d 917 (1994).

After the United States Supreme Court denied Ledford’s petition for certiorari, Ledford v. Georgia, 513 U.S. 1085, 115 S.Ct. 740, 130 L.Ed.2d 641 (1995), Ledford sought state habeas corpus relief in the Superior Court of Butts County, Georgia. Ledford, 818 F.3d at 615. That petition was denied on July 27, 1999, and the Supreme Court of Georgia denied him a certificate of probable cause to appeal in 2001. Id. at 620-21. The United States Supreme Court thereafter again denied certiorari. Ledford v. Turpin, 534 U.S. 1138, 122 S.Ct. 1086, 151 L.Ed.2d 985 (2002).

Ledford then timely filed a 28 U.S.C. § 2254 petition in the federal district court, in which he pled multiple claims. On March 19, 2008, the district court denied Ledford’s § 2254 petition. Ledford, 818 F.3d at 628. On February 27, 2014, the district court denied reconsideration. Id. at 631. This Court affirmed the denial of Led-ford’s § 2254 petition. Id. at 608, 651. This Court also denied Ledford’s petition for rehearing en banc. Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600 (11th Cir.2016). The United States Supreme Court denied certiorari for a third time. Ledford v. Sellers, — U.S. -, 137 S.Ct. 1432, 197 L.Ed.2d 650 (2017). The United States Supreme Court subsequently denied Ledford’s petition for rehearing. Ledford v. Sellers, — U.S. -, 137 S.Ct. 2151, — L.Ed.2d - (2017).

II. STANDARD OF REVIEW

The standard governing a stay pending appeal is the same as the standard applicable to a motion for a temporary restraining order. A stay pending appeal is appropriate only if the moving party establishes: “(1) a substantial likelihood of success on the merits; (2) that the [stay] is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm the [stay] would cause the other litigant; and (4) that the [stay] would not be adverse to the public interest.” Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1280 (11th Cir. 2015) (quoting Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1263 (11th Cir. 2014)).

III. STATUTE OF LIMITATIONS

The State argues, inter alia, that Led-ford has not shown a substantial likelihood of success on the merits because his § 1983 complaint is time-barred.

An untimely complaint cannot succeed on the merits. Gissendaner, 779 F.3d at 1280. A § 1983 challenge to a state’s method of execution is subject to the statute of limitations governing personal injury actions in the state where the challenge is brought. Id. Ledford brought his § 1983 action in Georgia, which has a two-year statute of limitations period for such actions. See id.; O.C.G.A. § 9-3-33.

The right of action for a method-of-execution challenge “ ‘accrues on the later of the date on which’ direct review is completed by denial of certiorari, ‘or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.’ ” Gissendaner, 779 F.3d at 1280 (quoting McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008)).

The United States Supreme Court denied Ledford’s petition for certiorari on direct review on January 9, 1995. Ledford v. Georgia, 513 U.S. 1085, 115 S.Ct. 740, 130 L.Ed.2d 641 (1995).

In October 2001, Georgia adopted lethal injection as its method of execution. O.C.G.A. § 17-10-38(a) (stating “[a]ll persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection”); Gissendaner, 779 F.3d at 1281. In March 2013, Georgia changed from using a single dose of FDA-approved pentobarbital to using a single dose of compounded pentobarbital. See Gissendaner, 779 F.3d at 1281. In July 2013, Georgia’s lethal injection secrecy act went into effect. See id.; O.C.G.A. § 42-5-36(d). This Court has squarely held that these changes made in 2013 are not substantial changes to Georgia’s execution protocol. Gissendaner, 779 F.3d at 1281-82; Wellons, 754 F.3d at 1263-64. Thus, Led-ford’s method-of-execution claim accrued in October 2001 and must have been filed by October 2003 to be timely. See Gissendaner, 779 F.3d at 1280. This means that Ledford’s § 1983 complaint challenging lethal injection, filed on May 11, 2017, is over ten years too late.

In any event, Ledford’s § 1983 complaint was not filed even within twenty-four months of that March 2013 change or the July 2013 secrecy act. Ledford also alleges that he has been taking gabapentin for approximately a decade. Thus, Led-ford’s § 1983- claims about the interaction of those two drugs—compounded pento-barbital and gabapentin—are filed too late as well.

“A time-barred complaint cannot justify a stay of execution, regardless of whether its claims have merit.” Gissendaner, 779 F.3d at 1284; see also Henyard v. Sec’y, DOC, 543 F.3d 644, 647 (11th Cir. 2008). Because Ledford’s § 1983 complaint was time-barred, he cannot show a substantial likelihood of success on the merits, and a stay of execution is not warranted.

IV. NO SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS

Alternatively, even if his claims were not time-barred, Ledford has failed to show that he is entitled to any relief at this time.

“Capital punishment, including capital punishment by lethal injection, generally is constitutional.” Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271 (11th Cir. 2014). Because “[s]ome risk of pain is inherent in any method of execution,” the Eighth Amendment “does not demand the avoidance of all risk of pain in carrying out executions,” particularly where the pain results “by accident or as an inescapable consequence of death.” Baze v. Rees, 553 U.S. 35, 47, 50, 128 S.Ct. 1520, 1529, 1531, 170 L.Ed.2d 420 (2008) (plurality opinion).

Instead, to prevail on an Eighth Amendment challenge to a state’s lethal injection protocol, the plaintiff must establish that the method of execution presents a risk that is “ ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” Glossip v. Gross, 576 U.S. -, -, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015) (quoting Baze, 553 U.S. at 50, 128 S.Ct. at 1531). A plaintiff must establish “an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.” Chavez, 742 F.3d at 1272 (quoting Baze, 553 U.S. at 50, 128 S.Ct. at 1531). This requires the plaintiff to show two things: “(1) the lethal injection protocol in question creates ‘a substantial risk of serious harm,’ and (2) there are ‘known and available alternatives’ that are ‘feasible, readily implemented,’ and that will ‘in fact significantly reduce [the] substantial risk of severe pain.’ ” Id. (quoting Baze, 553 U.S. at 50, 52, 61, 128 S.Ct. at 1531-32, 1537).

A. Substantial Risk of Serious Harm

Ledford does not challenge Georgia’s method of execution in administering a single dose of five grams of compounded pentobarbital. Rather, Ledford asserts an “as-applied” claim that, because he has taken gabapentin for a decade, that dose of pentobarbital, a mega-lethal dose, will not render him insensate quickly enough and that he will suffer serious pain during the execution.

With respect to the first required showing, Ledford’s allegations and supporting documents do not establish a substantial risk of serious harm, much less a substantial likelihood of success on the merits of his claims. As noted above, 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.’ ” Glossip, 576 U.S. at -, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 50, 128 S.Ct. at 1531) (quotation marks omitted); Wellons, 754 F.3d at 1265. The factual allegations in Ledford’s complaint and the supporting evidence do not establish that it is sure or very likely that Ledford will suffer serious injury or needless suffering during his execution.

We need not rely on the second requirement because Ledford has not carried his burden to show a substantial likelihood of success on his claim that, because Ledford has taken gabapentin for a decade, his execution by a lethal injection of five grams of compounded pentobarbital is sure or very likely to cause serious illness and needless suffering.

Ledford admits that fourteen Georgia inmates have been executed with five grams of pentobarbital without incident and he submits the autopsies of some of them. Interestingly, Ledford expressly admits that he is not claiming that any of these inmates (in the autopsies) were sen-sate during their executions. At page fifteen, footnote ten of his complaint, Led-ford states: “Mr. Ledford does not allege that any of these fourteen (14) inmates were conscious or sensate during their executions.”

To distinguish his case from the fourteen Georgia executions that occurred without incident, Ledford claims that five grams of pentobarbital will not render him insensate quickly enough because of his history of taking gabapentin. The State’s expert directly refutes that claim. For example, Dr. Jacqueline Martin testified that “the amount administered in the Georgia Department of Corrections’ Execution Protocol, 5000 mg, is more than sufficient to carry out the execution without causing Plaintiff pain despite the prior administration of 1800 mg of gabapentin per day.” And even Ledford’s experts do not opine how quickly five grams of pentobarbital will or will not render Ledford insensate. The expert can say only that the use of gabapentin “will diminish the effect of pen-tobarbital,” but the district court stressed, “how much, [Dr.] Berges never says.” And the district court pointed out Dr. Martin’s observation that the research does “not show that gabapentin’s inhibitory effect would survive the large, lethal dose of pentobarbital [used] ... in judicial execution.” The district court found that Led-ford’s experts did not demonstrate the substantial risk of severe pain that Led-ford must demonstrate.

B. Known and Available Alternatives

Alternatively, even assuming arguendo that Ledford has shown a substantial likelihood of success on the first requirement, as to the second requirement, Ledford’s complaint fails to state a plausible claim for relief. As to Georgia’s lethal injection method, Ledford does not even attempt to identify an alternative procedure or drug that is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” Glossip, 576 U.S. at -, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 52, 128 S.Ct. at 1532). Ledford’s complaint includes no allegations that: (1) there is an alternative drug that will substantially reduce the risks he identifies with compounded pentobarbital; (2) any alternative means of acquiring that alternative drug; or (3) an alternative method of lethal injection that would substantially reduce the risk Ledford identifies based on his history of taking gabapentin.

For the above reasons, in addition to being time-barred, Ledford’s complaint fails to state a plausible claim for relief. Because Ledford has not shown a substantial likelihood of success on the merits of his challenge to the lethal injection protocol, the motion for a stay is denied. See Gissendaner, 779 F.3d at 1283.

Y. FIRING SQUAD CLAIM

We also agree with the district court that Ledford has not alleged sufficient facts to render it plausible that a firing squad is a feasible and readily implemented method of execution in Georgia that would significantly reduce a substantial risk of severe pain. The Georgia legislature is free, within the parameters established by the United States Constitution, to choose the method of execution it deems appropriate. Execution by lethal injection has been ruled constitutional. Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 868-69, No. 15-14971, 2017 WL 1856071, at *8 (11th Cir. May 9, 2017); Arthur v, Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1316 (11th Cir. 2016). Having authorized a constitutional method of execution, Georgia “is under no constitutional obligation to experiment with execution by ... firing squad.” Boyd, 856 F.3d at 853, 2017 WL 1856071, at *1; Arthur, 840 F.3d at 1315-18.

In fact, Ledford’s own expert, Dr. James Williams, a trauma doctor with expertise in firearms, avers: “At the present time, lethal injection of pharmacologic agents dominates the field, and, in my opinion, for good reason: when available and performed appropriately, lethal injection provides us with arguably the quickest and most humane method of deliberately ending life.” While Dr. Williams opines that “gunshot wounding is—if properly carried out—also an effective means of accomplishing” death, Dr. Williams never describes gunshot wounding as a humane method, much less a more humane or the most humane method.

As the Supreme Court has recognized, “[t]he firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods [of execution], culminating in today’s consensus on lethal injection.” Baze, 553 U.S. at 62, 128 S.Ct. at 1538; see also id. at 42, 128 S.Ct. at 1526-27 (“A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States.”); Furman v. Georgia, 408 U.S. 238, 296-97, 92 S.Ct. 2726, 2756, 38 L.Ed.2d 346 (1972) (Brennan, J., concurring) (“Our practice of punishing criminals by death has changed greatly over the years. One significant change has been in our methods of inflicting death. Although this country never embraced the more violent and repulsive methods employed in England, we did for a long time rely almost exclusively upon the gallows and the firing squad. Since the development of the supposedly more humane methods of electrocution late in the 19th century and lethal gas in the 20th, however, hanging and shooting have virtually ceased”).

In any event, Ledford asserted this firing squad claim well beyond the two-year statute of limitations governing § 1983 claims in Georgia and thus his firing squad claim is untimely.

VI. EQUITABLE RELIEF

As an alternative and independent ground, we deny Ledford’s motion for a stay because a stay of execution is an equitable remedy, and Ledford has not carried his burden to demonstrate entitlement to that equitable relief.

A stay is an equitable remedy not available as a matter of right, and before a court grants a stay, it must consider “the relative harms to the parties,” “the likelihood of success on the merits,” and “the extent to which the inmate has delayed unnecessarily in bringing the claim.” Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 2126, 158 L.Ed.2d 924 (2004). We consider the relative harms to the parties by balancing the competing interests of Ledford and Georgia. Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir. 2008). “A defendant’s interest in being free from cruel and unusual punishment is primary; however, the State’s interest in effectuating its judgment remains significant.” McNair, 515 F.3d at 1172. Victims of crime also “have an important interest in the timely enforcement of a sentence.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006). “[L]ike other stay applicants, inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Id.

“Given the State’s significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Nelson, 541 U.S. at 650, 124 S.Ct. at 2126 (citations omitted). In several decisions, this Court-has refused to grant a dilatory stay sought on the eve of an execution. See, e.g., Crowe, 528 F.3d at 1294; Diaz v. McDonough, 472 F.3d 849, 851 (11th Cir. 2006); Hill v. McDonough, 464 F.3d 1256, 1259-60 (11th Cir. 2006).

Even if not barred by the statute of limitations, Ledford’s claims are barred because he has not timely made them, given he waited until five days before his execution. In any event, in our balancing of the hardships and equitable relief, we must take into account the fact that the State and the relatives of Ledford’s victims have a strong interest in the finality of the criminal judgments and in seeing lawfully imposed sentences carried out in a timely manner.

Our decision in Jones v. Allen provides guidance here. 485 F.3d 635 (11th Cir. 2007), cert. denied, 550 U.S. 930, 127 S.Ct. 2160, 167 L.Ed.2d 887 (2007). In that case, the inmate Jones, facing an imminent execution, filed a § 1983 civil action challenging the three-drug protocol in Alabama that had been in existence since 2002, but Jones waited until 2006 to file his civil action. Id. at 636-38. This Court concluded that Jones’s delay “leaves little doubt that the real purpose behind his claim is to seek a delay of his execution, not merely to effect an alteration of the manner in which it is carried out.” Id. at 640 (quoting Harris v. Johnson, 376 F.3d 414, 418 (5th Cir. 2004)). Similarly, in the instant case, Georgia has used lethal injection with a single dose of pentobarbital for years, and Led-ford has taken gabapentin for ten years. Only five days before his execution did Ledford bring his concern about the interaction of these two drugs. Ledford has failed to show any equitable relief is warranted in these circumstances.

Under all the particular facts and circumstances of this case, Ledford has not shown that he has met the equitable requirements for a stay against the State.

VII. CONCLUSION

After review, this Court denies Led-ford’s motion for a stay of execution because (1) Ledford’s § 1983 claims are time-barred; (2) alternatively, Ledford has not shown a substantial likelihood of success on his § 1983 claims; and (3) in any event, equitable considerations, including Led-ford’s delay in bringing a §. 1983 complaint and the State’s and the victims’ interests in the finality and timely enforcement of valid criminal judgments, do not warrant the entry of a stay of Ledford’s execution for this 1992 murder.

EMERGENCY MOTION FOR A STAY DENIED.

JORDAN, Circuit Judge,

concurring:

I join Parts I—III of the majority opinion and concur in the denial of a stay. Because Mr. Ledford’s execution protocol claim is untimely under Eleventh Circuit precedent, I do not find it necessary to address the other grounds set forth by the majority-

      . We also reviewed the declaration of Dr. Mark A. Edgar, who reviewed fourteen autopsies, but his opinion about the risk of pain is prefaced with the condition that "if the person were conscious" or "if the prisoners were aware.” Dr. Edgar never opines how long it would take for an inmate who received a five-gram injection of pentobarbital to become insensate. The opinion of Dr. Joel B. Zivot about the risk of pain is also based on the caveat that "[i]f any inmate was aware or sensate during the process.”

      . Contrary to Ledford's claims, the Eighth Circuit's decision is not inapposite to our Circuit's precedent. In McGehee v. Hutchinson, the Eighth Circuit vacated the district court's stay of execution, denied a stay, and stated "we concur with the Eleventh Circuit that the State must have access to the alternative and be able to carry out the alternative method relatively easily and reasonably quickly.” McGehee v. Hutchinson, 854 F.3d 488, 488 (8th Cir. 2017) (en banc) (per curiam) (citing Arthur v. Comm'r, Ala. Dep't of Corr., 840 F.3d 1268, 1300 (11th Cir. 2016)), cert. denied, - U.S. -, 137 S.Ct. 1275, 197 L.Ed.2d 746 (2017). The Eighth Circuit concluded that the petitioner had not shown "a significant possibility that use of a firing squad is readily implemented and would significantly reduce a substantial risk of severe pain.” Id. at 488.
      The Sixth Circuit did affirm a district court’s stay in a 2-1 opinion over a dissent, but the Sixth Circuit has now voted that case en banc. In re Ohio Execution Protocol, 853 F.3d 822 (6th Cir. 2017), reh'g en banc granted, opinion vacated, 855 F.3d 702, 2017 WL 1457946 (6th Cir. 2017), withdrawn from bound volume (May 5, 2017). In any event, both the Sixth and Eighth Circuit cases were about midazolam, not pentobarbital which Georgia uses.

      . Plaintiff-Appellant’s Petition for Initial Hearing En Banc and for a stay of execution from the en banc court remains pending.


author: WILSON, Circuit Judge:

text:
    WESTROCK RKT COMPANY, Plaintiff-Appellant, v. PACE INDUSTRY UNION-MANAGEMENT PENSION FUND, Board of Trustees of the Pace Industry Union-Management Pension Fund, Defendants-Appellees.
    No. 16-16443
    United States Court of Appeals, Eleventh Circuit.
    (May 16, 2017)

      Eric Douglas Field, Lawrence D. Lev-ien, Akin Gump Strauss Hauer & Feld, LLP, Washington, DC, Steven J. Pritchett, Townsend & Lockett, LLC, Atlanta, GA, for Plaintiff-Appellant.
    Kathleen Keller, James Graham Lake, Bredhoff & Kaiser, PLLC, Washington, DC, James D. Fagan, Jr., Stanford Fagan, Atlanta, GA, for Pace Industry Union-Management Pension Fund.
    James D. Fagan, Jr., Stanford Fagan, Atlanta, GA, James Graham Lake, Bred-hoff & Kaiser, PLLC, Washington, DC, for Board of Trustees of the Pace Industry Union-Management Pension Fund.
    Before WILSON and ANDERSON, Circuit Judges, and ROTHSTEIN, District Judge.

       Honorable Barbara Jacobs Rothstein, United States District Judge for the District of Columbia, sitting by designation.

   WILSON, Circuit Judge:

WestRock, an employer contributing to the Pace Industry Union-Management Pension Fund (Fund), is challenging an action taken by the Fund’s Board of Trustees (Board). WestRock alleges it has a cause of action to challenge the Board’s action under two sections of the Employee Retirement Income Security Act (ERISA). The district court ruled that WestRock does not have a valid cause of action. We affirm that ruling.

I.BACKGROUND

The Fund is a multiemployer pension plan, see 29 U.S.C. § 1002(37) (defining multiemployer plan), administered by the Board. Half of the Board’s members are appointed by participating employers, and the other half are appointed by the sponsoring labor union. See 29 U.S.C. § 186(c)(5)(B) (stating that employers must be “equally represented in the administration” of a pension fund). The Board is the Fund’s sponsor, meaning it is tasked with administering the Fund. See 29 U.S.C. § 1002(16)(B) (defining plan sponsor). WestRock is an employer that has been a long-time contributor to the Fund. The Fund is in “critical status,” which means it is in dire financial condition. Because of its “critical status,” special funding rules required the Board to adopt a rehabilitation plan for the Fund. A rehabilitation plan consists of actions, such as reductions in plan expenditures, reductions in future benefit Accruals, and increases in contribution rates, designed to improve the Fund’s financial outlook. See 29 U.S.C. § 1085(e)(3)(A).

The Board adopted a rehabilitation plan in 2010. Two years later, the Board amended the Fund’s rehabilitation plan (Amendment) to include a provision requiring an employer that withdraws from the Fund to pay a portion of the Fund’s accumulated funding deficiency. Wes-tRock brought a declaratory judgment action against the Fund, seeking a declaration that the Amendment violates ERISA. WestRock argued it could bring the cause of action under 29 U.S.C. §§ 1132(a)(10) or 1451(a). The Fund argued that the Amendment was valid and that those two sections of ERISA do not provide WestRock with a cause of action for declaratory relief. The district court agreed with the Fund that ERISA provides no cause of action and granted the Fund’s motion to dismiss the complaint.

II.STANDARD OF REVIEW

We review questions of statutory interpretation and the district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo. See McNutt ex rel. United States v. Haleyville Med. Supplies, Inc., 423 F.3d 1256, 1259 (11th Cir. 2005).

III.DISCUSSION

This case is one of first impression and turns on statutory interpretation. ERISA “sets forth those parties who may bring civil actions under ERISA and specifies the types of actions each of those parties may pursue.” Gulf Life Ins. v. Arnold, 809 F.2d 1520, 1524 (11th Cir. 1987). Thus, “civil actions under ERISA are limited only to those parties and actions Congress specifically enumerated;” Id.' Wes-tRock believes that it has a valid cause of action under 29 U.S.C. §§ 1132(a)(10) or 1451(a). With respect to the former section, WestRock argues that § 1132(a)(10) gives it a broad cause of action to raise procedural and substantive challenges to the Board’s action when adopting or updating the rehabilitation plan, while the Board argues that § 1132(a)(10) is a narrow cause of action that only permits a suit when the Board has not followed specific statutorily required procedures. With respect to the latter section, WestRock asserts that § 1451(a), which allows employers to sue over any act under Subtitle E, provides a cause of. action because the Amendment, according to WestRock, was an act under Subtitle E. The Board disagrees. We begin with § 1132.

A. 29 U.S.C. § 1132(a)(10)

Under the original § 1132—titled “civil enforcement”—there was no cause of action for an employer. See Pub. L. No. 93-406, 88 Stat. 829 (1974). Section 1132 authorized various causes of action primarily for participants in or beneficiaries of a pension plan. For much of ERISA’s history, § 1132(a) did “not authorize contributing employers to bring any kind of civil suit at all.” See Dime Coal Co., Inc. v. Combs, 796 F.2d 394, 397 (11th Cir. 1986). Congress limited employers’ rights because ERISA was enacted to protect employees’ retirement income. See Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S.Ct. 2488, 2495, 159 L.Ed.2d 312 (2004) (Thomas, J.) (“Congress enacted ERISA to protect the interests of participants in employee benefit plans and their beneficiaries.... ” (internal quotation marks omitted)).

However, in 2006, Congress passed the Pension Protection Act (PPA), which amended § 1132 and provided employers a cause of action. Pub. L. No. 109-280, 120 Stat. 780 (2006). The PPA amended ERISA to create special funding rules for funds that were at risk of not being able to meet their distribution commitments. See 29 U.S.C. § 1085 (laying out rules for plans that are in “endangered” or “critical” status). One of those rules was that a plan in “critical status” had to adopt a rehabilitation plan, which forces the plan sponsor, employers, and employees to take action to improve the financial outlook of the fund. 29 U.S.C. § 1085(e). As part of the PPA, Congress amended § 1132 to include a cause of action for employers in certain scenarios related to these special funding rules—that amendment created § 1132(a)(10).

This brings us to the first issue on appeal—whether WestRock has a cause of action under Subsection B of § 1132(a)(10) to challenge the Amendment to the rehabilitation plan. Subsection B states that a civil action may be brought by an employer:

[I]f the plan sponsor—

(B) fails to update or comply with the terms of the funding improvement or rehabilitation plan in accordance with the requirements of [Section 1085] ...

29 U.S.C. § 1132(a)(10) (emphasis added). The role the above emphasized phrase— “in accordance with the requirements of [§ 1085]”—plays in Subsection B is at the heart of this first issue. The emphasized phrase refers to 29 U.S.C. § 1085. As mentioned earlier, § 1085 lays out the rules for plans in critical or endangered status. It is a massive section detailing, among other things, how to determine if the fund is in critical status or endangered status (§ 1085(b)); the process for adopting and updating a funding improvement plan for funds in endangered status (§ 1085(c)); and the process for adopting and updating a rehabilitation plan for funds in critical status (§ 1085(e)).

WestRock places a lot of importance on the phrase “in accordance.” WestRock, in light of the “in accordance” language, contends that § 1132(a)(10) “provides employers with a cause of action to compel critical status [multiemployer pension] plan sponsors to follow the correct procedure for adopting rehabilitation plan contribution requirements under [§ 1085], and to ensure that any updates are in accordance with the requirements of [§ 1085].” Under this view, an employer can challenge both the substance and procedure of an amendment under Subsection B. WestRock’s challenge “is based on both the invalid substance of the Amendment and the faulty procedure through which the Amendment attempts to impose additional contribution requirements.”

The Board embraces a narrower interpretation of § 1132(a)(10). Under the Board’s interpretation, Subsection B only permits an employer to bring an action when the Board fails to update in accordance with the procedural requirements of § 1085—specifically, the requirements that the rehabilitation plan must be updated annually and that the update must be filed with the plan’s annual report. However, the “in accordance” language, the Board asserts, does not give an employer the right to challenge the substance of a provision in a rehabilitation plan.

Ultimately, we do not need to resolve this dispute over what § 1132 authorizes because WestRock failed to allege properly that the Amendment violates § 1085 in any manner, procedurally or in substance.

WestRock claims that the Amendment violates § 1085 because (1) “contribution rate schedules must be provided to the bargaining parties” and (2) “critical status [multiemployer plans] with valid rehabilitation plans may not unilaterally impose on employers contribution requirements necessary to avoid an [accumulated funding deficiency].” However, the Amendment does not violate § 1085. The procedure WestRock cites to for contribution rate schedules is inapplicable here; that procedure arises out of § 1085(e)(3)(A)(i), but only § 1085(e)(3)(A)(ii) is implicated here. Further, there is no explicit restriction saying the Board cannot charge withdrawing employers for their share of the accumulated funding deficiency.

First, WestRock ignores the procedural difference between § 1085(e)(3)(A)(i) and (ii). Subsections (i) and (ii) lay out two alternative versions of rehabilitation plans. See 29 U.S.C. § 1085(e)(3)(A) (separating the two subsections with an “or”). Section 1085(e)(3)(A)(i) states a rehabilitation plan “may include reductions in plan expenditures (including plan mergers and consolidations), reductions in future benefit accruals or increases in contributions, if agreed to by the bargaining parties, or any combination of such actions.” (emphasis added). WestRock believes that the Amendment violated this section by requiring “additional contributions without subjecting those increases to negotiation between the bargaining parties.” However, the Amendment was adopted pursuant to the plan sponsor’s authority to adopt “reasonable measures” as part of a rehabilitation plan under.§ 1085(e)(3)(A)(ii). See 29 U.S.C. § 1085(e)(3)(A)(ii). The “if agreed to by the bargaining parties” language is not included in (ii). See Shotz v. City of Plantation, 344 F.3d 1161, 1168 (11th Cir. 2003) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (internal quotation marks omitted)). Section 1085(e)(3)(A)(ii) does place restrictions on a plan sponsors’ ability to adopt reasonable measures. However, WestRock does not allege that the Board failed to meet any of these requirements. And WestRock does not cite to anything else in the statute that suggests an employer has a role to play when the plan sponsor enacts reasonable measures under § 1085(e)(3)(A)(ii). See Useden v. Acker, 947 F.2d 1563, 1582 (11th Cir. 1991) (“We cannot infer that Congress’s silence is accidental in an area where Congress has already said so much out loud.”).

In regard to WestRock’s second argument, WestRock has not cited to any portion of ERISA that explicitly states that a plan sponsor cannot put in place a system for charging withdrawing employers for their share of the accumulated funding deficiency. WestRock argues that the Amendment violates § 1082. This argument is not persuasive. First § 1082 is not § 1085. Second, the Amendment does not violate § 1082. Normally, when a fund is facing an accumulated funding deficiency, employers face an automatic payment to compensate for the deficiency. See 29 U.S.C. § 1082. Section 1082 relieves employers from that payment when a rehabilitation plan is adopted. 29 U.S.C. § 1082(b)(3). WestRock reads § 1082 as broadly prohibiting any sort of charge related to an accumulated funding deficiency for funds in “critical status.” We believe that is an incorrect reading of § 1082. Section 1082 relieves an employer from an automatic payment; it does not go so far as to prohibit a charge based on accumulated funding deficiencies in all scenarios. See CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1226 (11th Cir. 2001) (‘Where Congress knows how to say something but chooses not to, its silence is controlling.” (internal quotation marks omitted)). We refuse to read into § 1082 such a broad preemption that Congress did not explicitly create. See Useden, 947 F.2d at 1581 (“ERISA is a comprehensive and reticulated statute bearing the marks of circumspect drafters; courts should proceed with commensurate circumspection .... ” (internal quotation marks omitted)).

WestRock has not properly alleged that the Amendment violates § 1085 in a manner sufficient to bring a cause of action under Subsection B of § 1132(a)(10).

B. 29 U.S.C. § 1451(a)

Next we turn to WestRock’s argument that it has a cause of action under 29 U.S.C. § 1451(a).' Section 1451(a) authorizes an employer to bring an action when it “is adversely affected by the act or omission of any party under [Subtitle E].... ” 29 U.S.C. § 1451(a)(1). Subtitle E is titled “Special Provisions for Multiemployer Plans” and has six parts, one of which governs employer withdrawals. The subsection governing employer withdrawals lays out how to calculate “withdrawal liability”—the amount a withdrawing employer is charged for its share of the unfunded vested benefits. See 29 U.S.C. §§ 1381— 1405 (governing the calculations for “withdrawal liability”). Unfunded vested benefits are different than an accumulated funding deficiency, which is what the Amendment deals with.

WestRock claims that, because Subtitle E governs “withdrawal liability,” it governs any and all liability that a plan may impose on a withdrawing employer. Therefore, because the Amendment imposes an additional liability on WestRock if it withdraws, § 1451(a) provides it with a cause of action to challenge the Amendment. The Board argues that the Amendment was not an act under Subtitle E and there is nothing in ERISA supporting WestRock’s contention otherwise.

The text of § 1451(a) does not support WestRock’s reading. The text authorizes an employer to bring an action when it “is adversely affected by the act or omission of any party under [Subtitle E].... ” 29 U.S.C. § 1451(a)(1). In other words, the employer must be challenging an act or omission under Subtitle E in order to maintain a cause of action under § 1451(a). Here, the Board adopted the Amendment pursuant to its authority under § 1085(e)(3)(A)(ii), which is under Subtitle B, not Subtitle E. WestRock counters that “Subtitle E governs any and all liability that may be imposed on employers upon withdrawal,” and, thus, the Amendment is an act arising under Subtitle E because it “attempts to impose additional liability upon an employer’s withdrawal.”

However, WestRock’s own arguments undercut its contention that the Amendment is an act" under Subtitle E. Wes-tRock’s argument is that the Amendment violates Subtitle E because “the liability established by the Amendment is not authorized by [29 U.S.C. §§ 1381-1405].” Its argument distilled is that the Amendment is an act under Subtitle E satisfying § 1451(a), yet we should strike down the Amendment because it is not authorized by Subtitle E. It is hard to comprehend how something can simultaneously be an act under a subtitle and not an act under a subtitle.

Beyond that seeming contradiction, WestRock is attempting to make an implied preemption argument. It is asking us to recognize that Congress intended to completely occupy the field regarding payments exacted from withdrawing employers by spelling out how to calculate a withdrawing employer’s share of the unfunded vested benefits. Stated another way, no other charges can be levied against a withdrawing employer because Congress specified how to divvy up a .withdrawing employer’s share of the unfunded vested benefits. Our response to WestRock’s request is simple—no. As stated earlier, our approach to interpreting ERISA is measured and restrained. See Gulf Life, 809 F.2d at 1524. (“[C]ivil actions under ERISA are limited only to those parties and actions Congress specifically enumerated.... ” (emphasis added)). There is nothing in the text that indicates Congress intended for “withdrawal liabili-

ty” to be the only payments a withdrawing employer would ever face, and because of the comprehensive nature of ERISA, we read the absence of such language as intentional. See Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 97, 101 S.Ct. 1571, 1583-84, 67 L.Ed.2d 750 (1981) (“The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.”). Recognizing such a broad preemption limiting a plan sponsor’s abilities is not explicit in the text, and we refuse to recognize one implicitly. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 247, 62 L.Ed.2d 146 (1979) (“[W]here a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.”).

IV. CONCLUSION

We affirm the district court’s ruling. WestRock has not pleaded the requisite injuries to satisfy bringing a cause of action under 29 U.S.C. §§ 1132(a)(10) or 1451(a).

AFFIRMED.

      . As defined by 29 U.S.C. § 1085(b)(2).

      . Under 29 U.S.C. § 1084(a), a fund’s accumulated funding deficiency is the amount by which the accumulated charges to the plan’s "funding standard account” exceed the accumulated credits to that account at the end of a plan year.

      . WestRock has no cause of action under Subsection A. The provision at issue in this case is an amendment to a rehabilitation plan, and Subsection A is relevant only when no rehabilitation plan has been adopted.

      . See 29 U.S.C. § 1085(e)(3)(A) ("[I]f clause (ii) applies, [the plan] shall set forth the alternatives considered, explain why the plan is not reasonably expected to emerge from critical status by the end of the rehabilitation period, and specify when, if ever, the plan is expected to emerge from critical status in accordance with the rehabilitation plan.”).

      . The other five parts govern merger or transfer of plan assets or liabilities, insolvent plans, financial assistance, benefits after termination, and enforcement.

      . "[T]he accumulated funding deficiency of a multiemployer plan for any plan year is the amount, determined as of the end of the plan year, equal to the excess (if any) of the total charges to the funding standard account of the plan for all plan years (beginning with the first plan year for which this part applies to the plan) over the total credits to such account for such years.” 29 U.S.C. § 1084(a) (emphasis added). "[T]he term ‘unfunded vested benefits’ means with respect to a plan, an amount equal to—(A) the value of nonfor-feitable benefits under the plan, less (B) the value 'of the assets of the plan.” 29 U.S.C. § 1393(c) (emphasis added).

      . Sections 1381-1405 are the sections in Subtitle E governing "withdrawal liability.”


author:
BY THE COURT: ED CARNES, Chief Judge, HULL, Circuit Judge, HULL, Circuit Judge: JORDAN, Circuit Judge, WILSON, Circuit Judge,
      JILL PRYOR, Circuit Judge,

text:
    J. W. LEDFORD, Jr., Plaintiff-Appellant, v. COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Other Unknown Employees and Agents, Defendants-Appellees.
    No. 17-12167-P
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 05/16/2017
    Gerald Wesley King, Jr., Federal Defender Program, Inc., Mary Elizabeth Wells, Law Office of M.E. Wells, ATLANTA, GA, John D. Cline, Law Office of John D. Cline, SAN FRANCISCO, CA, for Plaintiff-Appellant.
    Beth Attaway Burton, Sabrina Graham, Attorney General’s Office, ATLANTA, GA, for Defendants-Appellees.
    Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.*
   BY THE COURT:

A petition for initial hearing en banc having been filed, a judge in active service having requested a poll on the petition, and a majority of the judges in active service having voted against it, the petition is DENIED. The motion for a stay of execution is DENIED and the State’s motion to file a response to the plaintiff-appellant’s sur-reply is DENIED AS MOOT.

ED CARNES, Chief Judge,

concurring in the denial of the petition for initial hearing en banc:

Concurring in the denial of the motion for hearing en banc, I write separately to point out a different interpretation of the record than that of two of my colleagues, which bears on the timeliness issue.

Judge Wilson’s dissenting opinion states that what Ledford alleges is that “he has a ‘unique medical condition,’ and he alleges that the condition arose within the past two years.” Wilson Dissent at 1336 n.3. This, he adds, is not like the claim in Gissendaner that relied on conditions that had not changed in the past two years. Id. But in the complaint he filed in the district court, Ledford alleged that he has been taking gabapentin for over a decade and that the problem is the brain becomes less responsive to other drugs over a prolonged period of time. See Complaint at 2 (“His long-term exposure to this medication has changed the chemistry of his brain.... ”); id. at 9 (“When taken for an extended period of time, gabapentin will alter a person’s brain chemistry....”); id. at 10 (“Those receptors shaped by long-term administration of gabapentin become less responsive to pentobarbital.”); id. at 12 (Dr. Bergese’s opinion based on gabapentin having been “administered to a person ... for a considerable period of time”); id. at 15 (Dr. Zivot’s opinion based on Ledford’s “prolonged exposure to gabapentin”); id. at 16 (“Accordingly, because of his decade of gabapentin treatments ... ”); id. (alleging that the objectively intolerable risk arises from “his decade-long use of gabapentin”). The complaint could not, and does not, allege that the decade-long use of gaba-pentin arose within the last two years. It arose over more than a decade, far outside the two year statute of limitations.

Judge Jill Pryor’s dissenting opinion states that Ledford’s dosage of gabapentin has been increasing for a number of years, and his long term exposure to it has altered his brain chemistry so that using pentobarbital is very likely to cause him to experience unbearable pain and suffering. But Ledford never alleged that the risk of gabapentin diminishing the effect of pento-barbital arose only in the last two years before he filed the complaint. We cannot fault district courts for failing to foresee theories not alleged before them.

HULL, Circuit Judge,

specially concurring in the denial of the petition for initial hearing en banc:

I concur'for the reasons set forth in the assigned panel’s published order, dated May 15, 2017, attached hereto as Exhibit A, which denies Mr. Ledford’s belated motion for a stay of execution. Among other reasons, Mr. Ledford’s 42 U.S.C. § 1988 claims are barred by the statute of limitations and, in any event, as a matter of equitable considerations, are untimely filed five days before his execution.

For example, Mr. Ledford’s own complaint alleges he has been taking escalating doses of gabapentin for approximately a decade, and in March 2013 Georgia began using a single dose of five grams of pentobarbital in its lethal injection protocol. Thus, Mr. Ledford’s § 1983 claims, which are largely about his prolonged use of gabapentin for ten years and the interaction of gabapentin and pentobarbital, accrued at least by 2013 and his § 1983 claims were not filed until May 11, 2017, which is two years too late.

In any event, as discussed in the panel opinion, Mr. Ledford has not shown a substantial risk of severe pain as required by Glossip v. Gross, 576 U.S. -, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015), or a substantial likelihood of success on the merits of his claims to warrant a stay of execution. I also concur in the denial of Mr. Ledford’s petition for the reasons laid out in the majority opinions in Boyd v. Warden, Holman Correctional Facility, 856 F.3d 853, No. 15-14971, 2017 WL 1856071 (May 9, 2017), and Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir. 2016), cert. denied sub. nom. Arthur v. Dunn, — U.S. -, 137 S.Ct. 725, 197 L.Ed.2d 225 (2017).

EXHIBIT A

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-12167

Non-Argument Calendar

D.C. Docket No. l:17-cv-01705-SCJ

J. W. LEDFORD, JR., Plaintiff-Appellant, v. COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, OTHER UNKNOWN EMPLOYEES AND AGENTS, Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia Before ED CARNES, Chief Judge, HULL and JORDAN, Circuit Judges.

HULL, Circuit Judge:

Under a sentence of death, J.W. Led-ford, Jr. has his execution scheduled for Tuesday, May 16, 2017, at 7:00 p.m. On Thursday, May 11, 2017, a mere five days before his execution, Ledford challenged Georgia’s method of his execution by filing a civil complaint under 42 U.S.C. § 1983. Since 2013, Georgia’s execution protocol has provided for lethal injection by the administration of a single drug: five grams (5,000 milligrams) of compounded pento-barbital.

After briefing, the district court denied Ledford’s motion for a temporary restraining order and dismissed Ledford’s § 1983 complaint. The district court determined, inter alia, (1) that Ledford’s § 1983 claims are time barred; (2) that, in any event, Ledford had not shown a substantial likeli- • hood of success on the merits of his § 1983 claims; and (3) that, alternatively, Ledford had not carried his burden to demonstrate that equitable relief, such as a stay, should be granted at this late hour.

On May 12, 2017, Ledford filed a Notice of Appeal. On May 15, 2017, at 11:00 a.m., Ledford filed an “Emergency Motion for an Order Staying the Execution.” After careful review, we deny Ledford’s motion.

I. BACKGROUND

In 1992, Ledford murdered his 73-year-old neighbor, Dr. Harry Johnston, Jr., robbed Dr. Johnston’s wife, and burglarized the Johnstons’ home, tying up Mrs. Johnston with a rope. Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 608-09 (11th Cir. 2016). A Georgia jury convicted Ledford of murder, armed robbery, burglary, and kidnapping, and “unanimously recommended imposition of the death penalty.” Id. at 614. The Supreme Court of Georgia affirmed Led-ford’s conviction and sentence on direct appeal. Ledford v. State, 264 Ga. 60, 439 S.E.2d 917 (1994).

After the United States Supreme Court denied Ledford’s petition for certiorari, Ledford v. Georgia, 513 U.S. 1085, 115 S.Ct. 740, 130 L.Ed.2d 641 (1995), Ledford sought state habeas corpus relief in the Superior Court of Butts County, Georgia. Ledford, 818 F.3d at 615. That petition was denied on July 27, 1999, and the Supreme Court of Georgia denied him a certificate of probable cause to appeal in 2001. Id. at 620-21. The United States Supreme Court thereafter again denied certiorari. Ledford v. Turpin, 534 U.S. 1138, 122 S.Ct. 1086, 151 L.Ed.2d 985 (2002).

Ledford then timely filed a 28 U.S.C. § 2254 petition in the federal district court, in which he pled multiple claims. On March 19, 2008, the district court denied Ledford’s § 2254 petition. Ledford, 818 F.3d at 628. On February 27, 2014, the district court denied reconsideration. Id. at 631. This Court affirmed the denial of Led-ford’s § 2254 petition. Id. at 608, 651. This Court also denied Ledford’s petition for rehearing en banc. Ledford v. Warden, Ga. Diagnostic & Classification Prison, No. 14-15650 (11th Cir. May 18, 2016). The United States Supreme Court denied certiorari for a third time. Ledford v. Sellers, — U.S. -, 137 S.Ct. 1432, 197 L.Ed.2d 650, No. 16-6444, 2017 WL 1199485 (Apr. 3, 2017). The United States Supreme Court subsequently denied Ledford’s petition for rehearing. Ledford v. Sellers, — U.S. -, 137 S.Ct. 2151, — L.Ed.2d - (2017).

II. STANDARD OF REVIEW

The standard governing a stay pending appeal is the same as the standard applicable to a motion for a temporary restraining order. A stay pending appeal is appropriate only if the moving party establishes: “(1) a substantial likelihood of success on the merits; (2) that the [stay] is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm the [stay] would cause the other litigant; and (4) that the [stay] would not be adverse to the public interest.” Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1280 (11th Cir. 2015) (quoting Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1263 (11th Cir. 2014)).

III. STATUTE OF LIMITATIONS

The State argues, inter alia, that Led-ford has not shown a substantial likelihood of success on the merits because his § 1983 complaint is time-barred.

An untimely complaint cannot succeed on the merits. Gissendaner, 779 F.3d at 1280. A § 1983 challenge to a state’s method of execution is subject to the statute of limitations governing personal injury actions in the state where the challenge is brought. Id. Ledford brought his § 1983 action in Georgia, which has a two-year statute of limitations period for such actions. See id.; O.C.G.A. § 9-3-33.

The right of action for a method-of-execution challenge “ ‘accrues on the later of the date on which’ direct review is completed by denial of certiorari, ‘or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.’ ” Gissendaner, 779 F.3d at 1280 (quoting McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008)).

The United States Supreme Court denied Ledford’s petition for certiorari on direct review on January 9, 1995. Ledford v. Georgia, 513 U.S. 1085, 115 S.Ct. 740, 130 L.Ed.2d 641 (1995).

In October 2001, Georgia adopted lethal injection as its method of execution. O.C.G.A. § 17-10-38(a) (stating “[a]ll persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection”); Gissendaner, 779 F.3d at 1281. In March 2013, Georgia changed from using a single dose of FDA-approved pentobarbital to using a single dose of compounded pentobarbital. See Gissendaner, 779 F.3d at 1281. In July 2013, Georgia’s lethal injection secrecy act went into effect. See id.; O.C.G.A. § 42-5-36(d). This Court has squarely held that these changes made in 2013 are not substantial changes to Georgia’s execution protocol. Gissendaner, 779 F.3d at 1281-82; Wellons, 754 F.3d at 1263-64. Thus, Led-ford’s method-of-execution claim accrued in October 2001 and must have been filed by October 2003 to be timely. See Gissendaner, 779 F.3d at 1280. This means that Ledford’s § 1983 complaint challenging lethal injection, filed on May 12, 2017, is over ten years too late.

In any event, Ledford’s § 1983 complaint was not filed even within twenty-four months of that March 2013 change or the July 2013 secrecy act. Ledford also alleges that he has been taking gabapentin for approximately a decade. Thus, Led-ford’s § 1983 claims about the interaction of those two drugs—compounded pento-barbital and gabapentin—are filed too late as well.

“A time-barred complaint cannot justify a stay of execution, regardless of whether its claims have merit.” Gissendaner, 779 F.3d at 1284; see also Henyard v. Sec’y, DOC, 543 F.3d 644, 647 (11th Cir. 2008). Because Ledford’s § 1983 complaint was time-barred, he cannot show a substantial likelihood of success on the merits, and a stay of execution is not warranted.

IV. NO SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS

Alternatively, even if his claims were not time-barred, Ledford has failed to show that he is entitled to any relief at this time.

“Capital punishment, including capital punishment by lethal injection, generally is constitutional.” Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271 (11th Cir. 2014). Because “[s]ome risk of pain is inherent in any method of execution,” the Eighth Amendment “does not demand the avoidance of all risk of pain in carrying out executions,” particularly where the pain results “by accident or as an inescapable consequence of death.” Baze v. Rees, 553 U.S. 35, 47, 50, 128 S.Ct. 1520, 1529, 1531, 170 L.Ed.2d 420 (2008) (plurality opinion)

Instead, to prevail on an Eighth Amendment challenge to a state’s lethal injection protocol, the plaintiff must establish that the method of execution presents a risk that is “ ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” Glossip v. Gross, 576 U.S. -, -, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015) (quoting Baze, 553 U.S. at 50, 128 S.Ct. at 1531). A plaintiff must establish “an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.” Chavez, 742 F.3d at 1272 (quoting Baze, 553 U.S. at 50, 52, 61, 128 S.Ct. at 1531). This requires the plaintiff to show two things: “(1) the lethal injection protocol in question creates ‘a substantial risk of serious harm,’ and (2) there are ‘known and available alternatives’ that are ‘feasible, readily implemented,’ and that will ‘in fact significantly reduce [the] substantial risk of severe pain.’ ” Id. (quoting Baze, 553 U.S. at 50, 128 S.Ct. at 1531-32, 1537).

A. Substantial Risk of Serious Harm

Ledford does not challenge Georgia’s method of execution in administering a single dose of five grams of compounded pentobarbital. Rather, Ledford asserts an “as-applied” claim that, because he has taken gabapentin for a decade, that dose of pentobarbital, a mega-lethal dose, will not render him insensate quickly enough and that he will suffer serious pain during the execution.

With respect to the first required showing, Ledford’s allegations and supporting documents do not establish a substantial risk of serious harm, much less a substantial likelihood of success on the merits of his claims. As noted above, 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.’ ” Glossip, 576 U.S. at -, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 50, 128 S.C.t at 1531) (quotation marks omitted); Wellons, 754 F.3d at 1265. The factual allegations in Ledford’s complaint and the supporting evidence do not establish that it is sure or very likely that Ledford will suffer serious injury or needless suffering during his execution.

We need not rely on the second requirement because Ledford has not carried his burden to show a substantial likelihood of success on his claim that, because Ledford has taken gabapentin for a decade, his execution by a lethal injection of five grams of compounded pentobarbital is sure or very likely to cause serious illness and needless suffering.

Ledford admits that fourteen Georgia inmates have been executed with five grams of pentobarbital without incident and he submits the autopsies of some of them. Interestingly, Ledford expressly admits that he is not claiming that any of these inmates (in the autopsies) were sen-sate during their executions. At page fifteen, footnote ten of his complaint, Led-ford states: “Mr. Ledford does not allege that any of these fourteen (14) inmates were conscious or sensate during their executions.”

To distinguish his case from the fourteen Georgia executions that occurred without incident, Ledford claims that five grams of pentobarbital will not render him insensate quickly enough because of his history of taking gabapentin. The State’s expert directly refutes that claim. For example, Dr. Jacqueline Martin testified that “the amount administered in the Georgia Department of Corrections’ Execution Protocol, 5000 mg, is more than sufficient to carry out the execution without causing Plaintiff pain despite the prior administration of 1800 mg of gabapentin per day.” And even Ledford’s experts do not opine how quickly five grams of pentobarbital will or will not render Ledford insensate. The expert can say only that the use of gabapentin “will diminish the effect of pen-tobarbital,” but the district court stressed, “how much, [Dr.] Berges never says.” And the district court pointed out Dr. Martin’s observation that the research does “not show that gabapentin’s inhibitory effect would survive the large, lethal dose of pentobarbital [used] ... in judicial execution.” The district court found that Led-ford’s experts did not demonstrate the substantial risk of severe pain that Led-ford must demonstrate.

B. Known and Available Alternatives

Alternatively, even assuming arguendo that Ledford has shown a substantial likelihood of success on the first requirement, as to the second requirement, Ledford’s complaint fails to state a plausible claim for relief. As to Georgia’s lethal injection method, Ledford does not even attempt to identify an alternative procedure or drug that is “feasible, readily implemented, and in fact significantly reducefs] a substantial risk of severe pain.” Glossip, 576 U.S. at -, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 52, 128 S.Ct. at 1532). Ledford’s complaint includes no allegations that: (1) there is an alternative drug that will substantially reduce the risks he identifies with compounded pentobarbital; (2) any alternative means of acquiring that alternative drug; or (3) an alternative method of lethal injection that would substantially reduce the risk Ledford identifies based on his history of taking gabapentin.

For the above reasons, in addition to being time-barred, Ledford’s complaint fails to state a plausible claim for relief. Because Ledford has not shown a substantial likelihood of success on the merits of his challenge to the lethal injection protocol, the motion for a stay is denied. See Gissendaner, 779 F.3d at 1283.

V. FIRING SQUAD CLAIM

We also agree with the district court that Ledford has not alleged sufficient facts to render it plausible that a firing squad is a feasible and readily implemented method of execution in Georgia that would significantly reduce a substantial risk of severe pain. The Georgia legislature is free, within the parameters established by the United States Constitution, to choose the method of execution it deems appropriate. Execution by lethal injection has been ruled constitutional. Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 867-69, No. 15-14971, 2017 WL 1856071, at *8 (11th Cir. May 9, 2017); Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1316 (11th Cir. 2016). Having authorized a constitutional method of execution, Georgia “is under no constitutional obligation to experiment with execution by ... firing squad.” Boyd, 856 F.3d at 859, 2017 WL 1856071, at *1; Arthur, 840 F.3d at 1315-18.

In fact, Ledford’s own expert, Dr. James Williams, a trauma doctor with expertise in firearms, avers: “At the present time, lethal injection of pharmacologic agents dominates the field, and, in my opinion, for good reason: when available and performed appropriately, lethal injection provides us with arguably the quickest and most humane method of deliberately ending life.” While Dr. Williams opines that “gunshot wounding is—if properly carried out—also an effective means of accomplishing” death, Dr. Williams never describes gunshot wounding as a humane method, much less a more humane or the most humane method.

As the Supreme Court has recognized, “[t]he firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods [of execution], culminating in today’s consensus on lethal injection.” Baze, 553 U.S. at 62, 128 S.Ct. at 1538; see also id. at 42, 128 S.Ct. at 1526-27 (“A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States.”); Furman v. Georgia, 408 U.S. 238, 296-97, 92 S.Ct. 2726, 2756, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) (“Our practice of punishing criminals by death has changed greatly over the years. One significant change has been in our methods of inflicting death. Although this country never embraced the more violent and repulsive methods employed in England, we did for a long time rely almost exclusively upon the gallows and the firing squad. Since the development of the supposedly more humane methods of electrocution late in the 19th century and lethal gas in the 20th, however, hanging and shooting have virtually ceased.”).

In any event, Ledford asserted this firing squad claim well beyond the two-year statute of limitations governing § 1983 claims in Georgia and thus his firing squad claim is untimely.

VI. EQUITABLE RELIEF

As an alternative and independent ground, we deny Ledford’s motion for a stay because a stay of execution is an equitable remedy, and Ledford has not carried his burden to demonstrate entitlement to that equitable relief.

A stay is an equitable remedy not available as a matter of right, and before a court grants a stay, it must consider “the relative harms to the parties,” “the likelihood of success on the merits,” and “the extent to which the inmate has delayed unnecessarily in bringing the claim.” Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 2126, 158 L.Ed.2d 924 (2004). We consider the relative harms to the parties by balancing the competing interests of Ledford and Georgia. Crowe v. Donald, 528 F.3d 1290, 1292 (11th. Cir. 2008). “A defendant’s interest in being free from cruel and unusual punishment is primary; however, the State’s interest in effectuating its judgment remains significant.” McNair, 515 F.3d at 1172. Victims of crime also “have an important interest in the timely enforcement of a sentence.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006). “[L]ike other stay applicants, inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Id.

“Given the State’s significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Nelson, 541 U.S. at 650, 124 S.Ct. at 2126 (citations omitted). In several decisions, this Court has refused to grant a dilatory stay sought on the eve of an execution. See, e.g., Crowe, 528 F.3d at 1294; Diaz v. McDonough, 472 F.3d 849, 851 (11th Cir. 2006); Hill v. McDonough, 464 F.3d 1256, 1259-60 (11th Cir. 2006).

Even if not barred by the statute of limitations, Ledford’s claims are barred because he has not timely made them, given he waited until five days before his execution. In any event, in our balancing of the hardships and equitable relief, we must take into account the fact that the State and the relatives of Ledford’s victims have a strong interest in the finality of the criminal judgments and in seeing lawfully imposed sentences carried out in a timely manner.

Our decision in Jones v. Allen provides guidance here. 485 F.3d 635 (11th Cir. 2007), cert. denied, 550 U.S. 930, 127 S.Ct. 2160, 167 L.Ed.2d 887 (2007). In that case, the inmate Jones, facing an imminent execution, filed a § 1983 civil action challenging the three-drug protocol in Alabama that had been in existence since 2002, but Jones waited until 2006 to file his civil action. Id. at 636-38. This Court concluded that Jones’s delay “leaves little doubt that the real purpose behind his claim is to seek a delay of his execution, not merely to effect an alteration of the manner in which it is carried out.” Id. at 640 (quoting Harris v. Johnson, 376 F.3d 414, 418 (5th Cir. 2004)). Similarly, in the instant case, Georgia has used lethal injection with a single dose of pentobarbital for years, and Led-ford has taken gabapentin for ten years. Only five days before his execution did Ledford bring his concern about the interaction of these two drugs. Ledford has failed to show any equitable relief is warranted in these circumstances.

Under all the particular facts and circumstances of this case, Ledford has not shown that he has met the equitable requirements for a stay against the State.

VII. CONCLUSION

After review, this Court denies Led-ford’s motion for a stay of execution because (1) Ledford’s § 1983 claims are time-barred; (2) alternatively, Ledford has not shown a substantial likelihood of success on his § 1983 claims; and (3) in any event, equitable considerations, including Led-ford’s delay in bringing a § 1983 complaint and the State’s and the victims’ interests in the finality and timely enforcement of valid criminal judgments, do not warrant the entry of a stay of Ledford’s execution for this 1992 murder.

EMERGENCY MOTION FOR A STAY DENIED.

JORDAN, Circuit Judge,

concurring:

I join Parts I—III of the majority opinion and concur in the denial of a stay. Because Mr. Ledford’s execution protocol claim is untimely under Eleventh Circuit precedent, I do not find it necessary to address the other grounds set forth by the majority-

WILSON, Circuit Judge,

dissenting to the denial of hearing en bane, joined by MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges:

There are over six hundred people on death row in Florida, Georgia, and Alabama. The Framers of the Constitution determined that such individuals cannot be subjected to torturous, inhumane deaths. Our decision in Arthur, however, has all but overturned the Framers’ determination. Under Arthur, even if a death row prisoner in Florida, Georgia, or Alabama faces an inhumane method of execution, the prisoner has no real recourse.

Arthur imposed a “de facto ban on [relief from a torturous, inhumane death] by adopting method-of-execution rules that lead to litigation gridlock.” See Baze v. Rees, 553 U.S. 35, 71, 128 S.Ct. 1520, 1542, 170 L.Ed.2d 420 (2008) (Alito, J., concurring). To obtain relief from an inhumane method of execution, a death row prisoner must identify a known-and-available execution alternative. Because lethal-injection drugs are both scarce and shrouded in secrecy, prisoners are having to turn to death by firing squad and other non-drug alternatives to meet this requirement. But under Arthur, an execution alternative is available only if it is state authorized, and neither Florida, Georgia, nor Alabama currently authorize any non-drug alternatives other than electrocution (a clearly problematic method of execution). So, the hundreds of prisoners sentenced to death in those states face a de facto ban on relief from a torturous, inhumane death. That defies the intent of the Framers.

J.W. Ledford’s case presents an opportunity for our court to revisit Arthur, and for the reasons discussed more fully in my dissent in Arthur and my concurrence in Boyd, I strongly believe our court should do so.

I respectfully dissent to the denial of hearing en banc.

JILL PRYOR, Circuit Judge,

dissenting to the denial of hearing en banc, joined by WILSON, MARTIN, and ROSENBAUM, Circuit Judges:

I agree in full with Judge Wilson’s dissent in Arthur, his concurrence in Boyd, and his dissent today. The Eighth Amendment guarantees death row inmates the right to humane treatment, but by effectively foreclosing all method-of-execution challenges, the Court has signaled that this right does not follow inmates to the execution chamber. Unfortunately, the Court’s jurisprudence on the substance of method-of-execution challenges is not the only way in which we have systematically closed and locked the courthouse doors on inmates under death sentences. We are also locking the courthouse doors based on an erroneous interpretation of the statute of limitations applicable to method-of-execution challenges.

Georgia’s lethal injection protocol currently provides that inmates shall be executed with a lethal dose of compounded pentobarbital. J.W. Ledford raises an as-applied challenge under 42 U.S.C. § 1983 to the use of this protocol in his execution. He alleges that the cumulative effect of a medication he has taken over the last several years has altered his brain chemistry such that pentobarbital will lack the capacity to anesthetize him while it stops the functioning of his central nervous system. As a result, Mr. Ledford alleges, if he is executed using compounded pentobarbital he is very likely to endure excruciating pain and suffering akin to drowning in his own saliva.

The panel began by stating hornbook law: a challenge brought pursuant to § 1983 is subject to the statute of limitations governing personal injury actions in the state in which the challenge is brought. Ledford v. Comm’r, Ga. Dep’t of Corr., No. 17-12167, 856 F.3d 1312, 1315-16, 2017 WL 2104682, at *2 (11th Cir. 2017). In Georgia, this statute of limitations is two years. See id. Because this Court has held that “a method of execution claim accrues on the later of the date on which state review is complete”—for Mr. Ledford, January 1995—“or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol”—according to the panel, October 2001—the panel concluded that Mr. Ledford’s claim was time barred. McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008); Ledford, 856 F.3d at 1315-16, 2017 WL 2104682, at *2 (quoting Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1280 (11th Cir. 2015) (quoting McNair, 515 F.3d at 1174)).

The panel’s analysis is simple enough. Indeed, it’s too simple. McNavfs accrual rule does not control in an as-applied challenge such as Mr. Ledford’s, where there are allegations that Mr. Ledford’s brain chemistry has changed over time such that he is now very likely to suffer an injury that he would not have experienced within two years of October 2001. Rather, the applicable rule is this Circuit’s general rule that “the statute of limitations does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987) (alteration and internal quotation marks omitted); see McNair, 515 F.3d at 1173 (explaining that Mullinax “has long been the law of this Circuit” for § 1983 actions). By way of illustration, in Siebert v. Allen, decided the year before McNair, we concluded that an “as-applied” § 1983 challenge to Alabama’s lethal injection protocol was timely because the faetual predicate for that claim— Mr. Siebert’s diagnosis with pancreatic cancer and hepatitis C—occurred shortly before he filed his amended complaint. 506 F.3d 1047, 1048-49 (11th Cir. 2007). We said that Mr. Siebert’s “as-applied” claim was timely because it “derive[d] from his recent diagnosis.” Id. at 1049-50.

It is this general rule from Mullinax, seen in action in Siebert, that should have been applied here. Mr. Ledford alleged that for a number of years he has been taking medication for chronic nerve pain, his dosage had been increasing, and his long-term exposure to that medication has altered his brain chemistry such that the State’s use of pentobarbital in his execution is very likely to cause him to experience unbearable pain and suffering. It is not at all apparent from the face of Mr. Ledford’s May 11, 2017 complaint that his as-applied claim accrued more than two years prior to that filing. See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (noting that dismissal on the affirmative defense of statute of limitations is appropriate only “if the allegations, taken as true,” show that relief is time-barred). Admittedly, we cannot tell from the allegations of Mr. Ledford’s complaint that his claim is timely. But that is not the standard we are bound to apply.

By holding Mr. Ledford’s as-applied challenge time barred, the panel locks the courthouse doors on him and on virtually any other death row inmate who may assert an as-applied challenge to an execution protocol in this Circuit. This defies common sense, logic, our case law, and the dictates of the Eighth Amendment. For these reasons and the reasons Judge Wilson has articulated in his dissent, I believe we should have heard Mr. Ledford’s case en banc. I respectfully dissent.

       Judge Julie Carnes, having recused herself, did not participate.

      . We also reviewed the declaration of Dr. Mark A. Edgar, who reviewed fourteen autopsies, but his opinion about the risk of pain is prefaced with the condition that "if the person were conscious” or "if the prisoners were aware.” Dr. Edgar never opines how long it would take for an inmate who received a five-gram injection of pentobarbital to become insensate. The opinion of Dr. Joel B. Zivot about the risk of pain is also based on the caveat that "[i]f any inmate was aware or sensate during the process.”

      . Contrary to Ledford's claims, the Eighth Circuit’s decision is not inapposite to our Circuit's precedent. In McGehee v. Hutchinson, the Eighth Circuit vacated the district court's stay of execution, denied a stay, and stated "we concur with the Eleventh Circuit that the State must have access to the alternative and be able to carry out the alternative method relatively easily and reasonably quickly.” McGehee v. Hutchinson, 854 F.3d 488, 488 (8th Cir. 2017) (en banc) (per curiam) (citing Arthur v. Comm'r, Ala. Dep't of Corr., 840 F.3d 1268, 1300 (11th Cir. 2016)), cert. denied, - U.S. -, 137 S.Ct. 1275, 197 L.Ed.2d 746 (2017). The Eighth Circuit concluded that the petitioner had not shown "a significant possibility that use of a firing squad is readily implemented and would significantly reduce a substantial risk of severe pain.” Id. at 488.
      The Sixth Circuit did affirm a district court’s stay in a 2-1 opinion over a dissent, but the Sixth Circuit has now voted that case en banc. In re Ohio Execution Protocol, 853 F.3d 822 (6th Cir. 2017), reh'g en banc granted, opinion vacated, No. 17-3076, 855 F.3d 702, 2017 WL 1457946 (6th Cir. 2017), withdrawn from bound volume (May 5, 2017). In any event, both the Sixth and Eighth Circuit cases were about midazolam, not pentobarbi-tal which Georgia uses.

      . Plaintiff-Appellant’s Petition for Initial Hearing En Banc and for a stay of execution from the en banc court remains pending.

        . Arthur v. Comm’r, Ala. Dep’t of Corrs., 840 F.3d 1268 (11th Cir. 2016), cert. denied sub nom. Arthur v. Dunn, 580 U.S. -, 137 S.Ct. 725, 197 L.Ed.2d 225 (2017).

      . Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 2017 WL 1856071 (11th Cir. 2017).

      . I believe hearing en banc is warranted despite the panel’s conclusion that Ledford’s claim is untimely. First, regardless of that conclusion, this case implicates an issue of "exceptional importance” in our circuit. See Fed. R. App. P. 35. Arthur, in my view, was wrongly decided, and the panel relied on Arthur as a basis for denying Ledford's claim. "We have a responsibility to interpret the law correctly,” which requires an en banc hearing to correct Arthur and the panel’s reliance on it. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1099 (11th Cir. 2017) (en banc). Second, I am not persuaded that the panel’s timeliness conclusion is correct. The panel says that Ledford should have filed his claim within two years of Georgia changing its lethal-injection protocol. That might be true if Ledford was alleging that the protocol is unconstitutional as a general matter. But that is not what he alleges. He argues that the protocol is inhumane as applied to him because he has a "unique medical condition,” and he alleges that the condition arose within the past two years. See Gissendaner v. Comm’r, Ga. Dep’t of Corrs., 803 F.3d 565, 569 n.1 (11th Cir. 2015) (per curiam). This is not a case, then, where the claim is "untimely because [it] reifies] on factual conditions that have not changed in the past” two years. See Gissendaner v. Comm’r, Ga. Dep’t of Corrs., 779 F.3d 1275, 1281 (11th Cir. 2015) (per curiam); Siebert v. Allen, 506 F.3d 1047, 1049-50 (11th Cir. 2007) (per curiam) (concluding that a prisoner’s method-of-execution claim was timely because it was an as-applied challenge that "derive[d] from [a] recent [medical] diagnosis”). Third, Ledford's initial federal habeas petition was resolved just yesterday, so I do not believe that he can be characterized as improperly delaying this action. See Ledford v. Sellers, - U.S. -, 137 S.Ct. 2151, - L.Ed.2d - (2017).

      . Arthur v. Comm’r, Ala. Dep't of Corr., 840 F.3d 1268 (11th Cir. 2016), cert. denied sub nom. Arthur v. Dunn, - U.S. -, 137 S.Ct. 725, 197 L.Ed.2d 225 (2017).

      . Boyd v. Warden, Holman Corr. Facility, No. 15-14971, 856 F.3d 853, 2017 WL 1856071 (11th Cir. 2017).

      . Because this case presents an as-applied challenge to Georgia’s method of execution, I do not address the Court's statute of limitations jurisprudence as it pertains to per se method-of-execution challenges.

      . More recently, Gissendaner, cited by the panel, suggested that a recent change in an inmate's medical condition could affect our statute of limitations analysis, though it denied Ms. Gissendaner relief because she had failed to allege that there was a recent change in her medical condition.