In Re: Alabama Lethal Injection Protocol Litigation (DEATH PENALTY)(LEAD)
MEMORANDUM OPINION AND ORDER: Accordingly, for the reasons stated and those expressed by the Eleventh Circuit Court of Appeals, and in the face of a mandate, McNabb's Emergency Motion for a Stay of Execution (Doc. # 307 ), seeking injunctive relief under the traditional four-factor test is DENIED. McNabb's alternative request for injunctive relief under the All Writs Act (Doc. # 307 ) is GRANTED. McNabb's October 19, 2017 execution date is STAYED pending further proceedings in accordance with the Eleventh Circuit's instructions to the district court. Signed by Chief Judge William Keith Watkins on 10/16/2017. (kh, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CAREY DALE GRAYSON,
DAVID LEE ROBERTS,
ROBIN DION MYERS,
GEOFFREY TODD WEST,
TORREY TWANE McNABB,
RONALD BERT SMITH,
CHARLES LEE BURTON,
ROBERT BRYANT MELSON,
JEFFERY LYNN BORDEN,
JEFFERSON S. DUNN, et al.,
CASE NO. 2:12-CV-0316-WKW
CASE NO. 2:13-CV-0781-WKW
CASE NO. 2:14-CV-1028-WKW
CASE NO. 2:14-CV-1029-WKW
CASE NO. 2:14-CV-1030-WKW
CASE NO. 2:16-CV-0270-WKW
CASE NO. 2:16-CV-0284-WKW
CASE NO. 2:16-CV-0269-WKW
CASE NO. 2:16-CV-0267-WKW
CASE NO. 2:16-CV-0268-WKW
CASE NO. 2:16-CV-0733-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff Torrey Twane McNabb is scheduled to be executed by the State of
Alabama on October 19, 2017, by a three-drug lethal injection protocol, with
midazolam as the first drug administered. On October 11, 2017, at 5:52 p.m., he filed
an Emergency Motion for Stay of Execution (Doc. # 307) requesting a stay of
execution on traditional grounds. The State responded in opposition to McNabb’s
motion on October 13, 2017 (Doc. # 310). The motion was argued, without
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additional evidence being offered by either side, on October 13, 2017. At oral
argument, McNabb argued in the alternative for an All Writs Act injunction. See 28
U.S.C. § 1651(a).
Because McNabb’s circumstances and procedural posture are not materially
different from those of Plaintiff Jeffery Lynn Borden, whose execution was stayed
last week (see Doc. # 302), and in view of the Eleventh Circuit’s mandates and
expressed view of an All Writs Act injunction, McNabb’s motion for a stay of
execution will be GRANTED as an All Writs Act injunction.
I. FACTUAL AND PROCEDURAL BACKGROUND
The factual background and procedural history of this case have been
thoroughly recounted in the prior opinions of this court and the Eleventh Circuit
Court of Appeals. Following is a brief summary relevant to this opinion.
McNabb is an Alabama inmate sentenced to death. His execution is scheduled
for Thursday, October 19, 2017, at 6:00 p.m., Central Daylight Time. On April 19,
2016, McNabb filed a complaint under 42 U.S.C. § 1983 challenging the
constitutionality of Alabama’s method-of-execution under the First, Eighth, and
Fourteenth Amendments to the United States Constitution. See McNabb v. Dunn,
No. 2:16-cv-0284-WKW (M.D. Ala. 2016) (Doc. # 1). Because McNabb’s
complaint contained claims and factual allegations virtually identical to other cases
that collectively have been styled the Midazolam Litigation, his case was
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consolidated with a group of cases in the Midazolam Litigation. 1 See Grayson, et
al. v. Dunn, No. 2:12-cv-0316-WKW (M.D. Ala. 2012). On March 31, 2017, this
court granted Defendants’ Rule 12(b)(6) motion and dismissed the complaints filed
by McNabb and his co-plaintiffs, Burton, Melson, West, and Borden. (Doc. # 240.)
Plaintiffs appealed. On September 6, 2017, the Eleventh Circuit reversed the
dismissal and remanded for further proceedings, holding that, “[b]ecause the
Complaint alleges facts that, if proven true, would satisfy both prongs of the Baze
standard, we hold that the District Court erred in concluding that Appellants’ claim
was time-barred.”2 Burton v. Warden, No. 17-11536, slip op. at 24 (11th Cir. Sept.
6, 2017). The mandate issued October 5, 2017. (Docs. # 293, 299.)
Prior to issuance of the mandate, on September 15, 2017, Borden and McNabb
each filed an emergency motion in the Eleventh Circuit to stay their executions
scheduled for October 5 and October 19, respectively. On September 29, 2017, the
All plaintiffs in the Midazolam Litigation are death-row inmates who are challenging the
ADOC’s use of midazolam in the lethal-injection execution protocol as violating the Eighth
Amendment. Not all plaintiffs in the Midazolam Litigation have raised the same claims; however,
McNabb’s complaint is a carbon copy of the claims asserted in the complaints filed by Charles
Lee Burton, Robert Bryant Melson, Geoffrey Todd West, and Jeffery Lynn Borden. Melson was
executed June 8, 2017.
Nearly a week earlier, on September 1, 2017, the Eleventh Circuit vacated a grant of
summary judgment to the Defendants in five other Midazolam Litigation cases and remanded for
trial because there was a dispute of material fact. See Grayson v. Warden, No. 16-16876, slip op
at 8 (11th Cir. Sept. 1, 2017) (“After hearing from the parties in oral argument and considering
their briefs, we conclude that genuine issues of material fact preclude summary judgment. . . . We
accordingly vacate the District Court’s judgment and remand for further proceedings.”)
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Eleventh Circuit granted Borden’s emergency motion to stay his execution, rather
than require Borden to seek relief in the district court. The Eleventh Circuit reasoned
that, because his scheduled execution was to occur the same date the mandate was
to issue, the district court would not have time to consider a motion to stay. 3
However, the Eleventh Circuit denied McNabb’s emergency motion to stay his
execution because he would have time between issuance of the mandate on October
5 and his execution date, October 19, to seek relief in the district court and obtain a
ruling. He did that, and this is the ruling.
The Circuit Court went further in its order denying McNabb a stay of
If Mr. McNabb presents the District Court with an All Writs
Act injunction request, he “must simply point to some ongoing
proceeding, or some past order or judgment, the integrity of which
is being threatened by someone else’s action or behavior.” Id. at
1099-1100. In our view he clearly could meet this requirement, as
his impending execution would directly threaten the District
Court’s resolution of his § 1983 claim.
Burton v. Warden, No. 17-11536, slip op. at 5 (11th Cir. Sept. 29, 2017) (emphasis
The foregoing reveals two differences between McNabb’s circumstances and
those of Borden last week. First, Borden’s mandate and execution date were
The Supreme Court vacated the Circuit’s All Writ’s Act stay in Borden’s case, without
comment or reasoning, the day before his scheduled execution. See Dunn, Com’r, Ala. Dep’t of
Corr. v. Borden, 17A360 (U. S. Oct. 4, 2017).
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scheduled for the same day, leaving essentially no time for the district court to
consider his motion to stay execution; McNabb had 14 days between his mandate
and execution. Second, the Circuit said that McNabb would be entitled to an All
Writs Act injunction under these circumstances. That finding, or directive, or
holding, has not been disturbed. Otherwise, the circumstances of Borden and
McNabb are identical; the issues match perfectly; and the Eleventh Circuit has
mandated litigation on the merits of those issues. Borden was granted an injunction
by this court staying his execution, and the State did not appeal. Borden and McNabb
thus are very similarly situated legally.
II. STANDARD OF REVIEW
This opinion addresses solely McNabb’s motion to stay his execution, under
traditional considerations and under the All Writs Act.
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
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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 traditional 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 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-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
Further, the movant must clearly carry the burden of persuasion in order for the court
to grant a stay. Id.
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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, the Eleventh Circuit has instructed this court to “consider
that Mr. McNabb was not responsible for the delay in bringing the litigation of his
claim to its present posture . . . .” (Doc. # 307-1, at 6.) Based on the Circuit’s
instructions, and its statement that McNabb’s “motion to enjoin [his] . . . execution
. . . could hardly be described as ‘dilatory,’” id., the present exigency is not due to
McNabb’s actions or lack thereof. 4 This court agrees. Thus, this analysis will
McNabb’s emergency motion to stay was filed seven days after the mandate issued. The
length of this delay is insufficient to imply an attempt at manipulation of the process in view of
the unequivocal mandate of the Eleventh Circuit and the unique posture of this case.
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proceed without the strong equitable presumption against entry of a stay because
inexcusable delay is not attributable to McNabb.
Substantial Likelihood of Success on the Merits
Like Borden last week, the major weakness in McNabb’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,
McNabb points to the expert report of Michael Froelich, M.D., M.S., as evidence
that midazolam does not relieve pain and can enhance the perception of pain. (See
Doc. # 307-2.) At best, that evidence establishes a dispute of fact on the first Baze
As to the second prong, McNabb points to evidence tending to establish 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. # 307-4.) And the
Eleventh Circuit, writing about the availability of pentobarbital for executions, has
highlighted the testimony of Gaylen M. Zenter, Ph.D., that because “pentobarbital
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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, 5 at least from the vantage of the likelihood of success prong.
As for the first Baze prong, the State has highlighted other expert evidence to
argue that McNabb cannot satisfy this prong, and that evidence has heft. For
instance, the State cites Dr. Froelich’s testimony that a 500-mg bolus of midazolam
would put a person in a coma within five minutes or faster, and that “most people
would probably say, well, I doubt a person who is rendered unconscious to that deep
level would register pain in a meaningful fashion.” (Doc. # 310, at 3-4) Moreover,
Dr. Froelich admitted:
Q. How would you define the term coma in a drug-induced context?
A. A lack of responsiveness to arousal with a variety of intense
Q. Would you agree or disagree with a definition of a coma as,
quote, a state of unconsciousness where a person cannot be
awakened, fails to respond normally to painful stimuli, light or
Per the Death Penalty Information Center website, for the calendar years 2014 through
2017 to date, the states of Georgia, Missouri, and Texas, collectively, have conducted a total of
seventy (70) executions using pentobarbital in a one-drug execution protocol. (See
www.https://deathpenaltyinfo.org/executions-unitedstates (last visited Oct. 12, 2017).
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sound, lacks a normal wake/sleep cycle, and does not initiate
A. I would say that characterizes a coma.
Q. So part of the definition of a coma is that a person is so deeply
unconscious that they cannot respond to noxious stimuli?
A. That’s what I would understand, yes sir.
(Doc. # 310, at 7-8). That testimony is from McNabb’s own witness.
Considering all the evidence pointed to by both parties, the evidence is
roughly in equipoise at this stage, which is to say, disputed. Plaintiff’s burden for a
traditional stay is much more rigorous. Without improperly prejudging the case, the
disputed evidence does not demonstrate a substantial likelihood of success on the
merits (or a “lesser showing” for which McNabb advocates). Thus, McNabb’s
motion for a traditional stay of execution is DENIED.
All Writs Act Injunction
The court finds itself between Scylla (the Eleventh Circuit’s findings,
observations and mandate) and Charybdis (McNabb’s unsuccessful display of a
substantial likelihood of success on the merits). McNabb alternatively requests the
All Writs Act injunction strongly suggested by the Circuit Court. He relies on the
Circuit Court’s observation that the “Act is an extraordinary remedy that, under
exceptional circumstances, provides a court broad authority to issue an appropriate
Mr. McNabb has demonstrated that his case presents exceptional
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circumstances.” (Doc. # 307-1, at 3). There is support in the full record, and in the
law of this case, for such a remedy.
First, the court adopts the Eleventh Circuit’s reasoning in Borden’s case (Doc.
# 298-1) and the implied finding in McNabb’s case (Doc. # 307, at 6-7), that the
equities, in this emergency setting and in view of the issues to be resolved, favor
McNabb. There is insufficient time prior to October 19 to address deliberatively the
full panoply of weighty, life-involved issues presented. Because the prejudice to
McNabb –– his execution –– is so great, the equities strongly outweigh the State’s
interest in executing McNabb as scheduled on October 19. Moreover, while the
State and victims have, as always, a strong interest in seeing the State’s judgments
executed, the State has no protectable interest –– nor does the public –– in an
Second, in denying without prejudice McNabb’s emergency motion to stay,
the Eleventh Circuit has conveyed clearly its expectation that, on remand, this court
must resolve McNabb’s § 1983 claim. It would be impracticable, more accurately,
impossible, to give due consideration to and resolve the merits of McNabb’s action
prior to his October 19 execution date, given the extensive directives and mandates
the Eleventh Circuit has issued in these consolidated actions. McNabb’s and his coplaintiffs’ complaints are in shambles and must be repaired (see Doc. # 293, at 14
n.13; Doc. # 289, at 14–23, 75–77); the Answers are not much better (Doc. # 289, at
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79–81); a “shaping [of] the issues for trial” must occur (Doc. # 289, at 80); and this
court must perform “its gatekeeping function under Daubert” in the event an expert
is subject to challenge (Doc. # 289, at 81). In addition, of course, a trial date must
be set; the issues must be tried; and a ruling on the merits must be entered.
A status conference was held prior to the argument on the motion for stay to
address these and other matters. Every available resource is being devoted to the
accomplishment of the mandate. But there are more matters than minutes in the day,
and resolving the merits of McNabb’s action in the days that now precede McNabb’s
scheduled execution would require nothing short of Circe’s magical powers.
Third, another equitable consideration is at play. Borden, in almost identical
circumstances, received a stay of execution. Defendants did not appeal, admittedly
in part because of the late litigation hour. The court, in equity and good conscience,
cannot treat McNabb differently than Borden when the stakes are this high. There is
no evidentiary justification for disparate treatment of McNabb.
The Eleventh Circuit has remanded McNabb’s case for further proceedings.
This court is not authorized to ignore those instructions, which still stand. If
McNabb is executed as scheduled, this court will be unable to comply with the
mandate. Given the unusual procedural posture of this case –– like Borden’s ––
preservation of this court’s ability to comply with the clear directives of the Eleventh
Circuit requires issuance of the alternative All Writs Act injunction as requested.
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Accordingly, for the reasons stated above and those expressed by the Eleventh
Circuit Court of Appeals, and in the face of a mandate, McNabb’s Emergency
Motion for a Stay of Execution (Doc. # 307), seeking injunctive relief under the
traditional four-factor test is DENIED. McNabb’s alternative request for injunctive
relief under the All Writs Act (Doc. # 307) is GRANTED. McNabb’s October 19,
2017 execution date is STAYED pending further proceedings in accordance with
the Eleventh Circuit’s instructions to the district court.
DONE this 16th day of October, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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