Powell v. Thomas et al (DEATH PENALTY)

Filing 17

MEMORANDUM OPINION AND ORDER denying Williams's motion for stay of execution filed 5/13/2011, as further set out in order. Signed by Honorable William Keith Watkins on 5/16/11. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
EDDIE POWELL,
Plaintiff,
v.
KIM T. THOMAS, Interim
Commissioner, Alabama Department
of Corrections, et al.,
Defendants,
and
JASON ORIC WILLIAMS,
Intervenor-Plaintiff,
v.
KIM T. THOMAS, Interim
Commissioner, Alabama Department
of Corrections, et al.,
Intervenor-Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

[PUBLISH]

CASE NO. 2:11-CV-376-WKW

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Jason Oric Williams is scheduled for execution by lethal injection on Thursday,
May 19, 2011, at 6:00 p.m. Central Daylight Time, under an Alabama sentence of
death. On Friday afternoon, May 13, 2011, at 4:41 p.m., Williams filed a motion to

intervene in death row inmate Eddie Powell’s case (which had been filed at 2:44 p.m.
the same afternoon and which bears the same case number) with a complaint and
motion to stay execution attached. Due to the lateness of the litigation hour, the
motion to intervene has been granted by separate order. This opinion addresses
Williams’s motion for stay of execution (Doc. # 6), which has been fully briefed
(Docs. # 7, 8.) The merits of the complaint, framed under the rubric of 42 U.S.C.
§ 1983, are not directly at issue, though the merits framework is necessarily involved
in the substantial likelihood of success analysis.
Williams does not challenge his sentence of death or even the state of
Alabama’s decision to implement lethal injection as a method of execution under its
laws. Williams challenges only the change in one of the drugs used in the lethal
injection protocol. It is undisputed that Williams will be the first Alabama prisoner
executed using pentobarbitol as the first drug in the three-drug lethal injection
sequence, in place of sodium thiopental which has been used in all twenty-seven
lethal injection executions in Alabama. Williams asserts that there is no assurance
that his execution using pentobarbitol will comply with constitutional requirements.
Williams is unable to show a substantial likelihood of success on the merits of
his claim, and there is insufficient time to consider his claims without the entry of a
stay of execution. The motion for stay of execution, therefore, is due to be denied.
2

II. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and
1343(a)(3). The parties do not contest personal jurisdiction or venue, and the court
finds adequate allegations in support of both.
III. STANDARD FOR REVIEWING
A MOTION TO STAY EXECUTION
This opinion is addressed solely to Williams’s motion to stay his execution.
Although the Supreme Court of the United States has held that a death row inmate
may challenge the constitutionality of execution methods through a 42 U.S.C. § 1983
action, a stay “is not available as a matter of right,” even where execution is
imminent. Hill v. McDonough, 547 U.S. 573, 584 (2006). Rather, “a stay of
execution is an equitable remedy[,]” and “equity must be sensitive to the State’s
strong interest in enforcing its criminal judgments without undue interference from
the federal courts.” Id.; see also Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th
Cir. 1983) (“Each delay, for its span, is a commutation of a death sentence to one of
imprisonment.”). Additionally, not only the state, but also the “victims of crime have
an important interest in the timely enforcement of a sentence.” Hill, 547 U.S. at 584.
A motion for a stay filed by a death row inmate who challenges the method of
his execution is treated the same as any other motion for a stay. Hence, a death row

3

inmate is afforded no preferential treatment by his filing of a motion to stay, and all
requirements for a stay must be satisfied. Hill, 547 U.S. at 584. The requirements
mirror those applicable to obtaining injunctive relief. Grayson v. Allen, 491 F.3d
1318, 1322 (11th Cir. 2007) (“The equitable principles at issue when inmates facing
imminent execution delay in raising their § 1983 method-of-execution challenges are
equally applicable to requests for both stays and injunctive relief.”). This means that
before a court can issue a stay, it must consider whether the movant has shown “(1) a
substantial likelihood of success on the merits; (2) that irreparable injury will be
suffered if the relief is not granted; (3) that the threatened injury outweighs the harm
the relief would inflict on the non-movant; and (4) that entry of the relief would serve
the public interest.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26
(11th Cir. 2005); see also Hill, 547 U.S. at 584 (“[I]nmates seeking time to challenge
the manner of their execution must satisfy all of the requirements for a stay, including
showing a significant possibility of success on the merits.”). And, the movant must
clearly carry the burden of persuasion in order for the court to grant a stay. See Hill,
547 U.S. at 584.
Finally, when a motion for a stay of execution is filed on the eve of the
execution, “the extent to which the inmate has delayed unnecessarily in bringing the
claim” must be considered. Nelson v. Campbell, 541 U.S. 637, 649 (2004). A
4

“strong equitable presumption” applies “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.” Hill, 547 U.S. at 584 (quoting Nelson, 541 U.S. at 650);
see also Gomez v. U.S. Dist. Court for N. Dist. of Calif., 503 U.S. 653, 654 (1992)
(per curiam) (noting that the “last-minute nature of an application” or an applicant’s
“attempt at manipulation” of the judicial process may warrant the denial of a stay).
IV. BACKGROUND
The full details of Williams’s crimes are set forth in Williams v. Allen, 598 F.3d
778, 782-85 (11th Cir. 2010) and Williams v. State, 710 So. 2d 1276, 1290-93 (Ala.
Crim. App. 1996). In short, on the morning of February 15, 1992, Williams shot six
people with a .22 automatic rifle, killing four of them and wounding two others,
including at least one minor child.
On November 11, 1992, Williams was convicted of multiple capital offenses,
and on December 1, 1992, he was sentenced to death. Williams, 598 F.3d at 787.
Both the Alabama Court of Criminal Appeals and the Alabama Supreme Court
affirmed Williams’s convictions and death sentence on direct appeal. Williams, 710
So. 2d at 1349; aff’d, Ex parte Williams, 710 So. 2d 1350, 1357 (Ala. 1997).
Williams’s conviction and sentence became final on June 15, 1998, when the United

5

States Supreme Court denied his petition for a writ of certiorari. Williams v.
Alabama, 524 U.S. 929 (1998).
From 1999 to 2004, Williams pursued a state habeas petition asserting
ineffective assistance of counsel. Williams’s state habeas petition was denied by the
trial court; the Alabama Court of Criminal appeals affirmed the trial court; and the
Alabama Supreme Court denied his petition for a writ of certiorari on October 1,
2004. Williams, 598 F.3d at 787. Williams then filed a petition for a writ of federal
habeas corpus in the United States District Court for the Southern District of Alabama
pursuant to 28 U.S.C. § 2254. Williams’s federal habeas corpus petition was denied
by the district court in 2007. On March 4, 2010, the Eleventh Circuit affirmed the
district court’s denial of Williams’s petition, and on January 10, 2011, the Supreme
Court of the United States denied his petition for a writ of certiorari on his habeas
claims. Williams v. Allen, 131 S. Ct. 906 (2011).
On January 11, 2011, the state of Alabama filed a motion to set an execution
date for Williams with the Alabama Supreme Court. (Williams’s Compl. ¶ 17.)
Around that same time, news reports began to surface that states were experiencing
a shortage of sodium thiopental, a drug widely used in execution by lethal injection,
due to Hospira Inc.’s decision to cease manufacturing the drug. (See, e.g., Defs.’
Opp. to Mot. for Stay, Exs. B-C.) On January 25, 2011, the state of Alabama, along
6

with twelve other states, sent a letter to Attorney General Eric Holder notifying him
that “[s]odium thiopental is in very short supply worldwide, and for various reasons,
essentially unavailable on the open market.” (Williams’s Compl., Ex. A, at 1.) The
letter requested the Attorney General’s “assistance in identifying an appropriate
source for sodium thiopental or making supplies held by the Federal Government
available to the States.” (Williams’s Compl., Ex. A, at 1.) The Alabama Department
of Corrections’ (“ADOC”) previous lethal injection executions were conducted using
a three-drug sequence of sodium thiopental, pancuronium bromide, and potassium
chloride. (Williams’s Compl. ¶ 30.)
On March 15, 2011, the ADOC received eight grams of sodium thiopental from
the Tennessee Department of Corrections. (Williams’s Compl. ¶ 20.) On March, 22,
2011, the Tennessee Department of Corrections’s sodium thiopental from which these
eight grams were derived was seized by the United States Drug Enforcement Agency
(“DEA”). (Williams’s Compl. ¶ 20.) Sometime between March 15 and 22, 2011, the
DEA contacted the ADOC concerning these eight grams of sodium thiopental, and
the ADOC surrendered it to the DEA. (Defs.’ Opp. to Mot. for Stay, Ex. A.)
Williams alleges that the expiration date on all of the remaining sodium thiopental in
the ADOC’s possession was April 1, 2011. (Williams’s Compl. ¶ 22.)

7

On April 15, 2011, the Alabama Supreme Court set Williams’s execution for
May 19, 2011. (Williams’s Compl. ¶ 23.) On April 22, 2011, based on public
documents received from Tennessee, Williams’s counsel sent a letter to Attorney
General Eric Holder requesting an investigation into Alabama’s receipt of sodium
thiopental from Tennessee. (Williams’s Compl., Ex. C.) On April 26, 2011, the
ADOC issued a press release stating that it had previously received a small amount
of sodium thiopental from Tennessee, that it had surrendered that sodium thiopental
to the DEA, and that the ADOC “ha[d] amended its execution protocol to allow for
the use of pentobarbital for future executions.” (Defs.’ Opp. to Mot. for Stay, Ex. A.)
On May 2, 2011, six days after the ADOC’s press release, Williams filed a
petition for a stay of execution to the Alabama Supreme Court, “requesting that the
Alabama Supreme Court stay the execution until the State of Alabama provide[s] a
copy of its execution protocol and a determination [is] made as to whether that
protocol complie[s] with constitutional standards.” (Williams’s Compl. ¶ 26.) The
state filed a brief in opposition to Williams’s petition; Williams replied; and on May

8

12, 2011, the Alabama Supreme Court denied the petition for a stay of execution,
with no dissent and one recusal.1 (Williams’s Compl. ¶¶ 26, 27; Ct.’s Exs (Doc. # 9).)
On Friday, May 13, 2011, at 2:44 p.m., Plaintiff Eddie Powell filed a § 1983
suit, not at issue in this opinion, against Kim Thomas, Interim Commissioner of the
ADOC, and Anthony Patterson, Warden of Holman Correctional Facility, alleging
that the ADOC’s lethal injection protocol violates his right to be free from cruel and
unusual punishment and right to due process under the United States Constitution.
(Powell’s Compl. ¶ 1.) On that same Friday afternoon, at 4:41 p.m., Williams filed
an Emergency Motion to Intervene in Powell’s suit, which the court previously
1

Williams admits that his petition to the Alabama Supreme Court challenged the
constitutionality of Alabama’s revised lethal injection protocol and that this petition was denied.
(Williams’s Compl. ¶¶ 26-27.) Further, it is clear that his petition to the Alabama Supreme
Court was not one sounding in habeas corpus. Despite that admission, Defendants do not assert
res judicata or collateral estoppel in opposition to Williams’s instant § 1983 suit and motion for
a stay of execution. Given that res judicata is an affirmative defense that the defendant bears the
burden of proving, the court notes, but does not address, that issue. See Stewart v. Brinley, 902
So. 2d 1, 11 (Ala. 2004); see also Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1331
(11th Cir. 2010) (“[A] federal court must give preclusive effect to a state court judgment to the
same extent as would courts of the state in which the judgment was entered.”) (internal quotation
marks and citations omitted).
Likewise, the court declines to apply the narrow Rooker-Feldman doctrine because
Williams does not identify or complain of an injury caused by the Alabama Supreme Court’s
decision, but rather complains of the future conduct of the ADOC officials in implementing the
lethal injection procedure. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284, 291 (2005) (holding that the Rooker-Feldman doctrine is limited and confined to “cases
brought by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection
of those judgments”). Further, a district court is not denied subject-matter jurisdiction because “a
party attempts to litigate in federal court a matter previously litigated in state court.” Id. at 293.
Rather, state principles of preclusion, not Rooker-Feldman, control determination of such a case.
Id.
9

granted. (Order (Doc. # 12).) Accordingly, Williams’s Complaint and Motion for
Stay of Execution were also filed in this case. Williams sues the same Defendants as
Powell.
As stated in his Complaint, Williams’s § 1983 claims are as follows: (1) that
the ADOC’s method of inducing and maintaining loss of consciousness and sensation
prior to execution, use of chemicals that cause severe pain in the process of causing
death, and failure to retain qualified medical personnel to administer the ADOC’s
chosen chemicals, violate his right to be free from cruel and unusual punishment
under the Eighth and Fourteenth Amendments to the United States Constitution; and
(2) the ADOC’s failure to provide notice of and opportunity to comment on its
protocols, procedures, and training involved in the execution process violates his
right to due process under the Fifth and Fourteenth Amendments. (Williams’s
Compl. ¶¶ 46-48.) In his prayer for relief, Williams asks this court to (1) enter a
declaratory judgment that Defendants’ anesthesia and execution procedures violate
his right to be free of cruel and unusual punishment; (2) enjoin Defendants from
executing him with anesthesia and execution procedures that violate his right to be
free of cruel and unusual punishment; and (3) require the ADOC to provide notice,
presumably to the death row inmate, of at least 90 days, presumably prior to the

10

execution date, of the execution protocol and procedures for conducting executions.
(Williams’s Compl. “Prayer for Relief”).)
Williams’s Motion for Stay of Execution asks this court to (1) stay the
execution date currently scheduled for May 19, 2011; (2) require the state to
“meaningfully” disclose how it intends to execute Williams; and (3) grant Williams
an evidentiary hearing “to ensure the State’s revised protocol complies with all
medical, statutory, regulatory, and constitutional requirements.” (Williams’s Mot. for
Stay 2-3.)
Alabama’s replacement of sodium thiopental with pentobarbital in the threedrug lethal injection sequence underlies the bulk of Williams’s suit. Alabama’s
confidential Execution Procedures protocol2 is a twenty-one page written document
including four annexes.3 Annexes C and D relate to lethal injection. Annex C
contains detailed instructions to the IV (intravenous) team. Annex D relates to
2

The court ordered the protocol to be submitted for in camera review. By separate
Order, the protocol will be made a part of the record under seal for only the use of this court and
the federal appellate courts.
3

On May 14, 2011, an Order was entered directing Defendants to confirm or deny the
court’s assumption that the Execution Procedures protocol reviewed in camera “are the new
procedures and that the two-paragraph asterisk provision on page ten is the only change in the old
procedures.” (Order (Doc. # 10, at 2 n.1).) Defendants confirmed to the court in a timely
fashion that the only change in the new Execution Procedures is to allow for the use of
pentobarbital if sodium thiopental is unavailable, which resulted in the insertion in the Execution
Procedures of multiple references to “pentobarbital.” Defendants made essentially the same
representation to the Alabama Supreme Court in the earlier litigation. (See Doc. # 9, Ex. 2, at 3
n.1.)
11

syringe preparation, with alternate instructions for use of sodium thiopental and
pentobarbitol. Following is a summary of the protocol insofar as it relates to the
issues raised here.
Two IV lines are established, with a physician on call to perform a central line
procedure if intravenous access cannot be established. The prisoner is also connected
to a heart monitor. The protocol calls for the administration of three drugs in a
specific sequence, beginning with either sodium thiopental, or in case of its
unavailability, pentobarbitol, with an initial injection of 2.5 grams. A team member
physically assesses the consciousness of the inmate after the initial injection, by
applying graded stimulation. A backup of another 2.5 grams of the initial drug is
available for administration in the event there is evidence of consciousness, to be
applied in the second IV line. After the inmate is documented to be unconscious, the
second and third drugs are administered.
According to the affidavits of Warden Anthony Patterson, who has presided
over seven executions, and former warden Grant Culliver (Patterson & Culliver Affs.
(Exs. E & F to Defs.’ Opp. to Mot. for Stay), who presided over twenty executions,
an alternate IV line has never been used, and all the executions proceeded without
mishap and without evidence of pain on the part of the inmate. With this background,
the court turns to the discussion.
12

V. DISCUSSION
The issue is whether Williams has satisfied his burden of establishing that he
is entitled to a stay of the execution of his death sentence. Resolution of this issue
requires consideration of whether (1) Williams delayed unnecessarily in bringing his
claims, (2) there is a substantial likelihood of success on the merits of his specific
constitutional claims, (3) a stay is necessary to prevent irreparable injury, (4) the
threatened injury outweighs the harm the stay or injunction would cause, and (5) a
stay would serve the public interest. For the reasons to follow, these factors weigh
against a stay, principally on the basis that Williams has not shown a substantial
likelihood of success on the merits.
A.

Inexcusable Delay
Defendants take the position that Williams is guilty of inexcusable delay in

bringing this action. If that is so, a strong equitable presumption against a stay comes
into play if the court finds the action “‘could have been brought at such a time as to
allow consideration of the merits without requiring entry of a stay.’” Hill, 547 U.S.
at 584 (quoting Nelson, 541 U.S. at 650). No doubt, Williams could have filed this
action several weeks ago, simultaneously with his filing of a petition for stay of
execution with the Alabama Supreme Court on essentially the same grounds. This
delay is chargeable to Williams. Perhaps he could have filed several months ago
13

when it became evident that, at some point soon, sodium thiopental would not likely
be available and the protocol would have to be changed. However, the court is not
prepared to say that there would have been sufficient time to consider the merits of
the case without a stay even if it were filed several months ago. Accordingly, this
analysis proceeds without the strong equitable presumption against entry of a stay, a
presumption which arises because of inexcusable delay.
B.

Substantial Likelihood of Success on the Merits
Williams has not demonstrated a substantial likelihood of success on the merits

on either his Eighth Amendment cruel and unusual punishment claim or his Fifth
Amendment and Fourteenth Amendment Due Process claims.
1.

Eighth Amendment Right to Be Free From Cruel and Unusual
Punishment

Williams’s first cause of action challenges the state of Alabama’s lethal
injection procedure as insufficient to “induc[e] and maintain[ ] loss of consciousness
and loss of sensation prior to execution,” thus, “caus[ing] severe pain in the process
of causing death.” (Williams’s Compl. ¶ 46.) The complaint’s factual allegations
and arguments advanced in the motion for stay elucidate that Williams’s challenge
is to the state’s substitution of pentobarbital for sodium thiopental as the first of the
three-drug sequence used in lethal injections. (See, e.g., Williams’s Compl. ¶ 25.)
14

“The Eighth Amendment to the Constitution, applicable to the States through
the Due Process Clause of the Fourteenth Amendment, provides that ‘[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.’” Baze v. Rees, 553 U.S. 35, 47 (2008) (internal citation omitted). Baze
governs the substantive Eighth Amendment standards and, thus, is instructive on the
question whether Williams has shown a substantial likelihood of success on the
merits on the Eighth Amendment claim. Baze involved a condemned state prisoner’s
Eighth Amendment challenge to Kentucky’s protocol for lethal injections, at a time
when Kentucky and at least twenty-nine other states used sodium thiopental as the
first drug in a three-drug protocol, followed by pancuronium bromide and potassium
chloride. See id. at 44. The condemned prisoners alleged that there was “a
significant risk that the procedures w[ould] not be properly followed – in particular,
that the sodium thiopental w[ould] not be properly administered to achieve its
intended effect – resulting in severe pain when the other chemicals [were]
administered.” Id. at 50. The Supreme Court rejected the claim.
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.’” Id. (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)
15

(emphasis added)). “[T]o prevail on such a claim there must be a ‘substantial risk of
serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials
from pleading that they were ‘subjectively blameless for purposes of the Eighth
Amendment.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n.9
(1994)). The Supreme Court acknowledged that this standard imposed a “heavy
burden” on the plaintiffs to show that Kentucky’s procedures were “cruelly
inhumane.” Id. at 53.
Applying those standards, the Supreme Court initially observed that “it [was]
difficult to regard a practice as ‘objectively intolerable’ when it [was] in fact widely
tolerated,” as in the case of lethal injection, which was sanctioned and the preferred
method of execution in thirty-six states. Id. at 53. It held that the plaintiffs did not
show that “the risk of an inadequate dose of the first drug [was] substantial” or that
Kentucky was required “to adopt the untested alternative procedures” urged by the
plaintiffs. Id. at 54. The Baze Court also indicated that the standard it was
announcing would resolve other challenges; for example, it said that
[a] stay of execution may not be granted on grounds such as those
asserted here unless the condemned prisoner establishes that the State’s
lethal injection protocol creates a demonstrated risk of severe pain. He
must show that the risk is substantial when compared to the known and
available alternatives. A State with a lethal injection protocol
substantially similar to the protocol we uphold today would not create
a risk that meets this standard.
16

Id. at 61.
That Williams has not shown a substantial likelihood of success on the merits
under the Baze standard is apparent both from what Williams does and does not
argue. First, the absence of any discussion at all of the Baze standard in Williams’s
motion for stay of execution is glaring. The closest Williams comes to addressing the
Baze standard is in a heading in the brief’s outline that reads, “What is known of the
State’s Revised protocol indicates that Williams will likely suffer needless, undue,
and excruciating pain during execution.” (Williams’s Mot. for Stay 10 (emphasis and
capitalization omitted).) And, that is not even the correct standard.4 The Baze
standard requires proof that the changeover from sodium thiopental to pentobarbital
is “‘sure or very likely to cause serious illness and needless suffering.’” Baze, 553
U.S. at 50.
Second, Williams does not identify any instance where a state’s method of
lethal injection involving pentobarbital has been found to be unconstitutional under
the Eighth Amendment. In an attempt to show the risks of using pentobarbital as a
substitute for the sodium thiopental, Williams attaches to his complaint the medical
opinion of David B. Waisel, M.D., that the state of Oklahoma’s lethal injection

4

In fact, this section of Williams’s motion is devoid of a single citation to any case
authority. (Williams’s Mot. for Stay 10-12.)
17

protocol is insufficient to protect condemned prisoners “from awareness while being
paralyzed and receiving potassium chloride,” given that state’s addition of
pentobarbital to the protocol. (See Expert Report of David B. Waisel, MD, Oct. 29,
2010, at 3 (Williams’s Compl., Ex. D).) A variety of opinions are expressed in that
report, such as that pentobarbital is “less lipid soluble than sodium thiopental,” and
that the “use of pentobarbital as an agent to induce anesthesia is not FDA approved.”
(Waisel Report ¶¶ 6, 18.)
Besides the obvious fact that the Dr. Waisel’s report is not addressed to the
state of Alabama’s lethal injection protocol,5 Williams fails to mention that Dr.
Waisel’s opinion was rejected in the case in which his report was offered. See Pavatt
v. Jones, 627 F.3d 1336 (10th Cir. 2010), cert. denied, 131 S. Ct. 974 (2011). In
Pavatt, the Tenth Circuit rejected an Eighth Amendment challenge to the state of

5

The court is aware that Williams alleges he does not have access to Alabama’s
confidential protocol. Upon review of the protocol in camera, the court finds that the state of
Alabama has accurately represented in briefing the relevant parts of the protocol. Moreover, the
court has considered Williams’s arguments that he is entitled to a copy of the protocol, and finds
those arguments unpersuasive for purposes of demonstrating a substantial likelihood of success
on the merits. Williams does not cite any authority from any court in Alabama – federal or state
– that has required the state of Alabama to disclose its lethal injection protocol as a constitutional
or other requirement, and the court is aware of no such authority. In fact, in the context of
examining whether a condemned inmate unreasonably delayed in filing his § 1983 claim, the
Eleventh Circuit has rejected the argument that the confidentiality of Alabama’s lethal injection
protocol precluded the inmate from filing his challenge to the method of execution any earlier.
See Grayson v. Allen, 491 F.3d 1318, 1323 (11th Cir. 2007). It is noted also that there is no
allegation or argument from Williams that he has ever requested from any state official a copy of
the confidential lethal injection protocol. (See, e.g., Defs.’ Opp. to Mot. for Stay 42-43.)
18

Oklahoma’s “planned lethal injection procedure, i.e., its planned substitution of
pentobarbital for sodium thiopental.” Id. at 1338. In doing so, the Tenth Circuit held
that the district court’s findings were amply supported by the testimony from the
defendant’s expert, Dr. Dershwitz, who had rebutted Dr. Waisel’s conclusions, and
who is the same expert relied upon by Defendants in this lawsuit.6 See id. at 1340
(outlining Dr. Dershwitz’s opinions).
Moreover, concerns about Dr. Waisel’s opinions are heightened, not subdued,
by the countervailing expert testimony from Dr. Mark Dershwitz, whose affidavit and
curriculum vitae also are part of the record in this case. Dr. Dershwitz, a board
certified anesthesiologist with a Ph.D. in pharmacology, opines “to a reasonable
degree of medical certainty that there is an exceedingly small risk that a condemned
inmate to whom 2,500 mg of pentobarbital is properly administered pursuant to the
lethal injection protocol of the State of Alabama would experience any pain and
suffering associated with the administration of lethal doses of pancuronium bromide
and potassium chloride.” (Dershwitz Aff. ¶ 14 (Ex. D).) He further opines that “[a]

6

Pavatt involved an appeal from the district court’s order denying the plaintiff’s motion
for a preliminary injunction. 627 F.3d at 1338. The ruling on the motion for preliminary
injunction followed the district court’s earlier order granting the plaintiff’s motion for a stay of
his execution. See id. at 1337-38. The value of Pavatt on the issue whether a stay should be
entered in this case is negligible because the district court’s reasons for granting the stay were
neither under review nor set out in the Pavatt opinion. Additionally, the district court’s
reasoning is not embodied in a written opinion.
19

dose of 2,500 mg of pentobarbital will cause virtually all persons to stop breathing[,]”
and that “virtually every person given 2,500 mg of pentobarbital will have stopped
breathing prior to the administration of pancuronium bromide.” (Dershwitz Aff.
¶ 12.) He concludes that “the administration of 2,500 mg of pentobarbital by itself
would cause death to almost everyone.” (Dershwitz Aff. ¶ 12.)
By noting these competing experts’ opinions, the court is not attempting to
embroil itself in a medical controversy for purposes of resolving the motion for a stay.
The court, however, finds that Williams cannot meet his burden of demonstrating a
substantial likelihood of success on the merits, given the “heavy burden” he
ultimately bears to prove his Eighth Amendment claim, Baze, 553 U.S. at 53, merely
by offering an expert’s medical opinion about another state’s lethal injection protocol
that has been rejected by a federal court. Notably, this report, although attached to
the complaint, is not cited in Williams’s brief as supporting authority for his motion
for a stay.
Third, Williams asks this court to find that he has a substantial likelihood of
success on the merits based upon assertions that Defendants failed to provide
information justifying its “switch to pentobarbital,” that “something is fishy,” and that
there are too “many unresolved questions,” “uncertaint[ies]” and “secrec[ies]”
surrounding the state of Alabama’s “switch” from sodium thiopental to pentobarbital.
20

(Williams’s Mot. for Stay 4, 15; Williams’s Compl. ¶ 45; Waisel Report. ¶ 14.)
Whatever merit these contentions may have, they reflect an improper shifting of the
burden to Defendants to prove that Williams is not entitled to a stay. It is, however,
Williams who bears the burden of producing evidence “demonstrat[ing] risk of severe
pain.” Baze, 553 U.S. at 61. He cannot do so on speculation and assertions attacking
the adequacy of Defendants’ demonstration, and he has failed to do so otherwise.7
Fourth, Williams implies that the Eighth Amendment requires Defendants to
“retain qualified medical personnel to administer its chosen chemicals.” (Williams’s
Compl. ¶ 47.) This argument gets him no closer to a demonstration of a substantial
likelihood of success on the merits. “The Eighth Amendment prohibits indifference
to substantial risks[;] it does not demand particular protocols or the employment of
medical professionals.” Emmett v. Johnson, 489 F. Supp. 2d 543, 552 (E.D. Va.
2007); see also Hamilton v. Jones, 472 F.3d 814, 816 (10th Cir. 2007) (“[T]he
Constitution does not require the use of execution procedures that may be medically
optimal in other contexts.”). Not only did Baze confirm these principles, but there is
no evidence that in any legal injection execution conducted in the state of Alabama,

7

Other of Williams’s contentions also are insufficient to sustain his burden. For instance,
Williams emphasizes that the manufacturer of pentobarbital has pronounced that it is opposed to
its drug being used for executions, but fails to demonstrate how that fact is in any way relevant to
the issues and his burden.
21

a complication arose resulting from errors in the administration of the legal injection
protocol. To the contrary, there is evidence that in all the lethal injection executions
carried out at Holman Correctional Facility, the executions have proceeded
“smoothly” and “without mishap,” that there have been no indications that the
inmates were experiencing pain, and that it has not been necessary to use alternate
intravenous lines to complete the executions. (Patterson Aff. ¶¶ 5, 8; Culliver Aff.
¶¶ 3, 4.) Measured against the demands of the Eighth Amendment, there is little
chance that Williams will prevail on his constitutional claims.
Fifth, Williams’s allegations that Defendants could choose “alternative
chemicals” for executions, but that they choose not to do so (Williams’s Compl.
¶ 47), stop well short of complying with the Eighth Amendment standard of Baze.
Williams does not proffer any alternative procedure, and, if he had, he would have to
show that the procedure is “feasible, readily implemented, and in fact significantly
reduce[s] a substantial risk of severe pain.” Baze, 553 U.S. at 52. This he has failed
to do, through either allegation, argument, proffer or evidence.
2.

Fourteenth and Fifteenth Amendments Right to Due Process

As presented in Williams’s motion, his Fourteenth Amendment and Fifth
Amendment Due Process claim lack clear contours and bleed into the Eighth
Amendment claim. (Williams’s Mot. for Stay 8-9.) Defendants also have difficulties
22

in deciphering the nature of the claim. (Defs.’ Opp. to Mot. for Stay 41-43.) Turning
back to the complaint in search of clarity, there it is alleged that “[a]bsent notice of
the protocols, procedures, and training involved in the execution process, and the
opportunity to comment on these provisions, the State of Alabama is in violation of
[ ] Williams’ right to due process of law under the Fifth and Fourteenth Amendments
to the United States Constitution.” (Williams’s Compl. ¶ 49.)
Both the Fifth Amendment and Fourteenth Amendment due process clauses
“were designed to protect individual liberties from the same types of government
infringement.” Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d
935, 945 (11th Cir. 1997). The Fifth Amendment’s Due Process Clause provides that
“[n]o person shall be . . . deprived of life, liberty, or property without due process of
law.” U.S. Const. amend. V. The Fourteenth Amendment’s Due Process Clause
mirrors that language, see Republic of Panama, 119 F.3d at 945, providing that “[n]o
state shall . . . deprive any person of life, liberty or property, without due process of
law.” U.S. Const. amend. XIV, § 1.
There is, however, an important distinction between the two Due Process
Clauses.

The Fifth Amendment’s Due Process Clause restrains the federal

government, not state government. See Buxton v. Plant City, 871 F.2d 1037, 1041
(11th Cir. 1989) (“The [F]ifth [A]mendment to the United States Constitution
23

restrains the federal government, and the Fourteenth Amendment, section 1, restrains
the states, from depriving any person of life, liberty or property without due process
of law.”). Defendants are state officials, and Williams offers no justification for the
inclusion of a Fifth Amendment Due Process claim in the complaint. Indeed, the
absence of any mention of the Fifth Amendment’s Due Process Clause in Williams’s
reply is telling as to the claim’s failing. Because no basis for liability has been shown
for a Fifth Amendment Due Process claim, Williams cannot show a substantial
likelihood of success on the merits of this claim.
As support for his Fourteenth Amendment Due Process claim, Williams relies
upon Nelson, 541 U.S. at 647, and In re Medley, 134 U.S. 160, 173 (1890), arguing
that he “is entitled to know how his execution will be conducted” (Williams’s Mot.
for Stay 9). That reliance is perplexing. Nelson implicated only the Eighth
Amendment, and Medley involved a challenge to a statute under the Ex Post Facto
Clause. These opinions do not stand for the propositions of constitutional law that
Williams attempts to impart to their holdings. Williams cites no authority for his
proposition that a condemned inmate has a due process right to receive notice and an
opportunity to be heard when, as here, the shortage and now the ceased production

24

of sodium thiopental results in a substitution of pentobarbital.8 On this record and
absent any persuasive argument or citation to relevant authority, Williams has not
shown a substantial likelihood of success on the merits on his Fourteenth Amendment
Due Process claim.
C.

Irreparable Injury
If the stay of execution is denied, the consensus is that Williams’s execution

will occur as scheduled. However, the alleged irreparable injury is not the fact alone
that Williams will die by execution. That alone is not a cognizable constitutional
injury. Baze, 553 U.S. at 47. The alleged irreparable injury lies in his assertion that,
under present protocols, he may be conscious after being injected with pentobarbital
and able to feel pain during the administration of the final two chemicals. Given the
failure of Williams to establish a substantial likelihood that he can succeed on his
claim that the use of pentobarbital will “very likely . . . cause serious illness and
needless suffering,” Baze, 553 U.S. at 50, resulting in a substantial risk of serious

8

Contrary to Williams’s urging, these opinions also do not stand for the proposition that
“[u]nder the Eighth Amendment, a death row inmate must be given clear notice of how he will
be executed.” (Williams’s Reply 5.) For instance, the issue in Nelson was “whether § 1983
[was] an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay
and permanent injunctive relief.” 541 U.S. at 639. The underlying Eighth Amendment claim did
not attack the sufficiency of notice of the use of procedure, nor is it even clear that the Eighth
Amendment would be the proper vehicle for such a claim. Rather, the claim was whether “the
so-called ‘cut-down’ procedure constituted cruel and unusual punishment and deliberate
indifference to [the condemned inmate’s] serious medical needs in violation of the Eighth
Amendment.” Id. at 641.
25

pain, the irreparable injury is not actual and imminent. See Siegel v. LePore, 234 F.3d
1163, 1176-77 (11th Cir. 2000) (The irreparable injury “‘must be neither remote nor
speculative, but actual and imminent.’” (quoting Ne. Fla. Chapter of Ass’n of Gen.
Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir.
1990)). There is, therefore, not a sufficient showing of irreparable harm.
D.

Relative Harms to the Parties and the Public Interest
Williams points to the “potential harm to Mr. Williams” if an unconstitutional

execution is carried out, that is, “an unacceptable risk of an excruciating death.”
(Williams’s Mot. for Stay 16-17.) On the other hand, the State emphasizes that it has
a “significant interest in meting out a sentence of death in a timely fashion,” Nelson,
541 U.S. at 650, and that victims also have an interest in the timely enforcement of
a sentence, Hill, 547 U.S. at 584. To interrupt this interest in finality by issuing a stay
of execution at this point, upon a negligible showing of a substantial likelihood of
success, would work a strong injustice to the “powerful and legitimate interest in
punishing the guilty, an interest shared by the State and the victims of crime alike.”
Calderon v. Thompson, 523 U.S. 538, 556 (1998). The balance of harms and the
public interest weigh against a stay of execution.

26

VI. CONCLUSION
For all of the above reasons, but in particular the unlikelihood that Williams
will succeed on any of his claims, a stay of Williams’s execution is not supported by
law.9 Williams has not clearly carried the burden of persuasion in order to be entitled
to a stay of execution. Hill, 547 U.S. at 584. Accordingly, it is ORDERED that
Williams’s motion for a stay of execution, filed May 13, 2011, is DENIED.
Entered this 16th day of May, 2011, at 3:32 p.m.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

9

In light of this finding, it is unnecessary to address all of the grounds raised by
Defendants in opposition to the motion for a stay of execution and, in particular, Defendants’
statute of limitations arguments.
27