In Re: Alabama Lethal Injection Protocol Litigation (DEATH PENALTY)(LEAD)
MEMORANDUM OPINION AND ORDER (applies to member case 2:16cv733-WKW) GRANTING Borden's 298 Emergency MOTION for a Stay of Execution; Mr. Borden's 10/5/2017 execution date is STAYED pending further proceedings in this case, in accordance with the Eleventh Circuit's instructions to the district court, as further set out in order. Signed by Chief Judge William Keith Watkins on 10/5/17. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CAREY DALE GRAYSON,
JEFFERSON S. DUNN, et al.,
CASE NO. 2:12-CV-0316-WKW
CHARLES LEE BURTON,
RONALD BERT SMITH,
ROBERT BRYANT MELSON,
GEOFFREY TODD WEST,
TORREY TWANE MCNABB,
JEFFERSON S. DUNN, et al.,
CASE NOS. 2:16-CV-0267-WKW
JEFFERY LYNN BORDEN,
JEFFERSON S. DUNN, et al.,
CASE NO. 2:16-CV-0733-WKW
MEMORANDUM OPINION AND ORDER
If the State of Alabama follows its usual protocol, Jeffrey Lynn Borden will
be executed at 6 p.m. Central Daylight Time today. In an opinion dated September
6, 2017, the Eleventh Circuit Court of Appeals found that Mr. Borden’s case should
go forward, overruling the March 31, 2017 dismissal of the case in this court on a
12(b)(6) motion to dismiss filed by the State of Alabama. On September 29, 2017,
the Eleventh Circuit granted Mr. Borden a stay of execution to October 19, 2017, to
give him time to file a properly supported motion for stay of execution in this court,
and expressly to allow this court 14 days to address said motion. That was because,
the appellate court said, the date of execution and the arrival in this court of the
Eleventh Circuit mandate were both scheduled to occur on October 5—today—and
“[t]hat would leave no opportunity for the District Court to consider such a motion
or to effectuate our directive, as we have outlined it in our September 6, 2017 opinion
in this case.” (Doc. # 298-1, at 6.) Indeed. Continuing, the Eleventh Circuit
“concluded that an [all writs] injunction is warranted to give the District Court
enough time to receive our mandate and proceed accordingly.” (Doc. # 298-1,
The best-laid plans of the Eleventh Circuit, upon which this court relied, were
derailed a little over twenty-four hours before the scheduled execution. Yesterday,
October 4, the United States Supreme Court vacated the Eleventh Circuit’s
injunction enjoining Mr. Borden’s execution, without explanation other than that
three justices dissented. Dunn, Com’r, Ala. Dep’t of Corr. v. Borden, 17A360 (U.S.
Oct. 4, 2017). Late yesterday, the Eleventh Circuit denied Mr. Borden’s subsequent
emergency motion for a “traditional stay” with the observation that he had “not
offered any evidence to demonstrate a substantial likelihood of success,” but without
prejudice to his “proffering evidence in support of that motion” in this court. Burton
v. Comm’r, Ala. Dep’t of Corr., No. 17-11536, slip op. at 2 (11th Cir. Oct. 4, 2017).
This morning, just after the mandate issued from the Eleventh Circuit, Mr. Borden
did so, but the evidence he pointed to was the same evidence in the voluminous
appellate record, but maybe not pointed to (this court does not know and does not
have time to find out), in the Court of Appeals and the Supreme Court.
In entering an injunction staying the execution on September 29, the Eleventh
Circuit found that the equities weigh heavily in favor of Mr. Borden in an All Writs
setting; it did not address the substantial likelihood of success, a showing that is not
required under the All Writs Act. The All Writs basis for an injunction was flatly
rejected by the Supreme Court, but its action being otherwise inscrutable, not much
can be surmised as to how it would treat a traditional injunction with a finding of
substantial likelihood of success on the merits. That is where this opinion begins.
This is a 42 U.S.C. § 1983 lethal injection challenge. Before the court is
Plaintiff Jeffery Lynn Borden’s Emergency Motion to Stay Execution. (Doc. # 298.)
Having carefully considered the motion, the parties’ respective arguments, and the
applicable law, the court finds that Borden’s motion is due to be GRANTED.
I. STANDARD OF REVIEW
This opinion addresses solely Mr. Borden’s motion to stay his execution.
Although the U.S. Supreme Court 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.
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 inmate receives 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.
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-ofexecution 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
“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).
As an initial matter, Mr. Borden was not dilatory in filing his complaint, and
no unnecessary delay in this case can be attributed to him. He filed his complaint
on September 6, 2016, nearly one year before the State obtained a warrant for his
execution on August 28, 2017. The present exigency is not due to Mr. Borden’s
actions or lack thereof. Thus, this analysis will proceed without the strong equitable
presumption against entry of a stay because inexcusable delay is not attributable to
Substantial Likelihood of Success on the Merits
Admittedly, the major weakness in Mr. Borden’s motion lies in his burden to
demonstrate a substantial likelihood of success on the merits that “the challenged
method of execution presents a substantial risk of serious harm” and that there is “an
alternative that is feasible, readily implemented, and in fact significantly reduce[s] a
substantial risk of severe pain.” (Doc. # 289, at 7 (citing Baze v. Rees, 553 U. S. 35
(2008) (internal quotation marks omitted)).) As to the first prong, Mr. Borden cites,
but does not attach, the expert report of Michael Froelich, M.D., M.S., as evidence
that “midazolam does not relieve pain, can enhance the perception of pain and even
can have a paradoxical effect on the patient, triggering aggression.” (Doc. # 298,
at 11.) As to the second prong, Mr. Borden cites evidence that he says demonstrates
that pentobarbital, sodium thiopental, and a single dose of midazolam are viable
alternative methods of execution that would reduce a substantial risk of severe pain.
He relies, for example, on the deposition testimony of Dr. Daniel Buffington, who
opined on the availability of compounded pentobarbital. (Doc. # 298, at 13.) And
the Eleventh Circuit, speaking on the availability of pentobarbital for executions, has
highlighted the testimony of Gaylen M. Zenter, Ph.D., that because “pentobarbital
sodium for injection is listed in the FDA Orange Book, a publication containing all
approved drugs in the United States, and because no active patents covered the
product, anyone who has the ingredients can make pentobarbital sodium.” (Doc. #
289, at 26 (internal quotation marks omitted).) In addition to this evidence, the fact
of dozens of executions in other states using compounded pentobarbital gives the
State much to explain, at least from the vantage of this likelihood of success stage.
Whether this evidence is adequate to demonstrate a substantial likelihood of
success on the merits (or a “lesser showing” for which Mr. Borden advocates) is
questionable. However, in these exigent circumstances, the court finds that the
proffer is sufficient to find that Mr. Borden has made out a prima facie case on the
Baze prongs when balanced against the equites, which tilt the scales in favor of a
This court agrees with the Court of Appeals that the equities, in this
emergency setting and in view of the timing, favor Mr. Borden. Added to the finding
of the Court of Appeals, this court has insufficient time to address deliberatively the
weighty, life-involved issues presented. Because the prejudice to Mr. Borden is so
great, the equities strongly outweigh the State’s interest in an execution tonight.
The Eleventh Circuit has reversed this court and remanded this cause for
further proceedings. This court is not authorized to ignore the instructions of the
Eleventh Circuit. If Mr. Borden is executed as scheduled, this court will be unable
to comply with the Eleventh Circuit’s mandate. Given the unusual procedural
posture of this case, preservation of this court’s ability to comply with the clear
directives of the Eleventh Court requires issuance of the injunction requested.
The court concludes that it is more important to make the above findings and
get the case back in the appellate stream a few hours before the scheduled execution
than to compound the confusion and urgency by spending all day digging deeper
into the divisive issues surrounding the death penalty generally and Mr. Borden’s
case specifically. Accordingly, for the reasons stated above and by the Eleventh
Circuit Court of Appeals, and in the face of a mandate, Mr. Borden’s Emergency
Motion for a Stay of Execution (Doc. # 298) is GRANTED. Mr. Borden’s October
5, 2017 execution date is STAYED pending further proceedings in his case, in
accordance with the Eleventh Circuit’s instructions to the district court.
DONE this 5th day of October, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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