Miller v. Hamm et al (DEATH PENALTY)

Filing 62

MEMORANDUM OPINION AND ORDER: It is ORDERED as follows: 1. The Motion for Preliminary Injunction (Doc. #28 ) is GRANTED as further set out in the opinion and order; and 2. The Defendants and their agents are hereby ENJOINED from executing Alan Eugene Miller by any method other than nitrogen hypoxia until further order from this Court. Signed by Honorable Judge R. Austin Huffaker, Jr on 9/19/2022. Furnished Appeals Clerk.(dmn, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALAN EUGENE MILLER,
Plaintiff,
v.
JOHN Q. HAMM, Commissioner,
Alabama Department of Corrections,
et al.,
Defendants.

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CASE NO. 2:22-cv-506-RAH
[WO]

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION

In 2018, Alabama passed a law granting death row inmates an opportunity to
elect their execution by a new method, nitrogen hypoxia, in lieu of Alabama’s default
method, lethal injection. This case presents another occasion for the Court to
consider the downstream effects of an Alabama Department of Corrections official’s
decision to distribute to death row inmates a form by which inmates could elect their
execution by nitrogen hypoxia. Plaintiff Alan Eugene Miller claims that he timely
submitted a nitrogen hypoxia election form, but the Defendants claim they have no
record of Miller’s form in their files. Miller is scheduled to be executed by lethal
injection on September 22, 2022.

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Miller is a death row inmate in the custody of the Alabama Department of
Corrections (ADOC) at Holman Correctional Facility (Holman).1 On August 22,
2022, he filed this lawsuit under 42 U.S.C. § 1983 against Defendants John Q.
Hamm, the Commissioner of the ADOC; Terry Raybon, the Warden at Holman; and
Steve Marshall, Attorney General of the State of Alabama (collectively, the State or
Defendants). All Defendants are sued in their official capacities.
In his Amended Complaint (Doc. 18), Miller alleges that the State violated his
constitutional rights by failing to honor his nitrogen hypoxia election. Miller alleges
that he timely made such an election in 2018, but the State cannot locate any record
that he did so. He seeks declaratory and injunctive relief.
This matter is before the Court on Miller’s Motion for Preliminary Injunction
(Doc. 28), wherein Miller seeks to enjoin the State from executing him by lethal
injection and a declaration that his nitrogen hypoxia election be honored. The
motion has been fully briefed (Docs. 42, 48), and the parties have submitted
hundreds of pages of evidence. On September 12, 2022, the Court conducted an
evidentiary hearing, during which it heard Miller’s live testimony and oral argument
from counsel on the motion. The State presented no live testimony in response. This
matter is ripe for review.

1

Holman is the primary correctional facility for housing death row inmates in Alabama and is the
only facility in the state that performs executions.
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For the following reasons, Miller’s Motion for Preliminary Injunction is due
to be granted.
II.

BACKGROUND

“When ruling on a preliminary injunction, ‘all of the well-pleaded allegations
[in a movant’s] complaint and uncontroverted affidavits filed in support of the
motion for a preliminary injunction are taken as true.’” Alabama v. U.S. Dep’t of
Com., 546 F. Supp. 3d 1057, 1063 (M.D. Ala. 2021) (alteration in original) (quoting
Elrod v. Burns, 427 U.S. 347, 350 n.1 (1976)). “At the preliminary injunction stage,
a district court may rely on affidavits and hearsay materials which would not be
admissible evidence for a permanent injunction, if the evidence is ‘appropriate given
the character and objectives of the injunctive proceeding.’” Levi Strauss & Co. v.
Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (quoting Asseo v. Pan
Am. Grain Co., 805 F.2d 23, 26 (1st Cir. 1986)).
A. Miller’s Capital Litigation History
In 2000, Miller was convicted of the capital murder of Lee Holdbrooks, Scott
Yancey, and Terry Lee Jarvis. By a vote of 10–2, the jury recommended that Miller
be sentenced to death. The trial court adopted the jury’s recommendation and
imposed a death sentence. Miller’s conviction and sentence were affirmed by the
Alabama Court of Criminal Appeals in 2004. Miller v. State, 913 So. 2d 1148 (Ala.
Crim. App. 2004). The Alabama Supreme Court denied certiorari, and the Alabama
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Court of Criminal Appeals issued Miller’s certificate of judgment on May 27, 2005.
Miller v. State, 99 So. 3d 349, 352 (Ala. Crim. App. 2011). The United States
Supreme Court likewise denied certiorari. Miller v. Alabama, 546 U.S. 1097 (2006)
(mem.).
On May 19, 2006, Miller filed a petition under Alabama Rule of Criminal
Procedure 32 for postconviction relief and subsequently filed an amended petition
on April 4, 2007. Miller v. State, 99 So. 3d 349, 353 (Ala. Crim. App. 2011). On
May 5, 2009, the state circuit court denied Miller’s petition, which the Alabama
Court of Criminal Appeals later affirmed. Id. at 353, 426. After initially granting
certiorari, the Alabama Supreme Court quashed the grant and denied certiorari on
June 22, 2012. Miller v. Dunn, No. 2:13-cv-154, 2017 WL 1164811, at *9 (N.D.
Ala. Mar. 29, 2017).
In January 2013, Miller filed a petition for habeas relief in the United States
District Court for the Northern District of Alabama, which was denied in March
2017. Id. The United States Court of Appeals for the Eleventh Circuit affirmed the
district court’s denial of habeas relief in August 2020. Miller v. Comm’r, Ala. Dep’t
of Corr., 826 F. App’x 743 (11th Cir. 2020) (per curiam). The United States
Supreme Court denied certiorari in October 2021. Miller v. Dunn, 142 S. Ct. 123
(2021) (mem.).

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B. Backdrop of the Present Action
1. Nitrogen Hypoxia Becomes an Alternative Method of Execution
On June 1, 2018, Alabama Act 2018-353 went into effect. See 2018 Ala.
Laws Act 2018-353; ALA. CODE § 15-18-82.1(b). This law granted death row
inmates one opportunity to elect nitrogen hypoxia as their method of execution, in
lieu of Alabama’s default method, lethal injection. ALA. CODE § 15-18-82.1(b). The
nitrogen hypoxia election process requires an inmate to make that election in writing
and deliver it to his or her warden within thirty days after a certificate of judgment
has been issued affirming the inmate’s conviction. Id. Inmates, like Miller, whose
certificates of judgment issued prior to June 1, 2018, had from June 1 until July 2,
2018,2 to elect nitrogen hypoxia in writing to the warden. Id. at § 15-18-82.1(b)(2).
Any writing from the inmate is sufficient under the statute. An inmate’s
failure to elect nitrogen hypoxia within the thirty-day period operates as a waiver of
that method of execution.

2

Alabama law states that the “[t]ime within which any act is provided by law to be done must be
computed by excluding the first day and including the last. However, if the last day is
Sunday, . . . the last day also must be excluded, and the next succeeding secular or working day
shall be counted as the last day within which the act may be done.” ALA. CODE § 1-1-4. Excluding
June 1, 2018, the day the statutory period began to run, the thirty-day period expired on July 1,
2018. July 1, 2018 was a Sunday, and thus could not be counted as the last day. Thus, under
Alabama rules of construction, the statutory period to elect nitrogen hypoxia was from June 1,
2018, through July 2, 2018.
5

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2. Background Regarding Distribution of the Election Form
On June 26, 2018, attorneys with the Federal Defenders for the Middle District
of Alabama’s Capital Habeas Unit traveled to Holman to meet with their clients,
notify them of the change in the law, and answer questions regarding nitrogen
hypoxia. During this meeting, the Federal Defenders provided a typewritten form
that their clients could sign and submit to the warden to effectuate a nitrogen hypoxia
election.
Sometime after this June 26 meeting, but before the statutory deadline of July
2, 2018, Holman’s then-warden, Cynthia Stewart, obtained the Federal Defenders’
election form, and at the direction of someone above her at the ADOC, she instructed
Correctional Captain Jeff Emberton to distribute a copy of the form along with a
blank envelope to every inmate on Holman’s death row. Captain Emberton then
distributed a blank form to each death row inmate and collected the forms from
inmates later the same day.
3. Miller’s Execution Date Is Set
With Miller’s appeals of his conviction and death sentence exhausted, on
April 19, 2022, Attorney General Marshall moved the Alabama Supreme Court to
set Miller’s execution date. (Doc. 52-22.) On May 18, 2022, Miller filed an
objection to the State’s motion, arguing that setting an execution date was premature
because Miller had timely elected execution by nitrogen hypoxia, and the State had
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not yet established a protocol for conducting nitrogen hypoxia executions. (Doc.
52-23.) In support of his objection, Miller submitted an affidavit asserting that in
June or July of 2018, a correctional officer at Holman passed out forms to individuals
on death row concerning an election to be executed by nitrogen hypoxia, that Miller
completed and signed the form, and that he returned the form to a correctional officer
“at the same time that he was collecting forms from everyone else.” (Doc. 18-1.)
Attorney General Marshall responded to Miller’s opposition on May 27, 2022,
claiming there was no evidence that Miller had elected execution by nitrogen
hypoxia. (Doc. 18-3.) To support his position, Attorney General Marshall filed an
affidavit from Warden Raybon, asserting that the ADOC’s nitrogen hypoxia file had
no record of an election form from Miller. (Id. at 8.)
Miller then filed a reply brief asserting that the State’s response created a
factual dispute regarding the existence of Miller’s election form and requesting the
case be remanded to an Alabama trial court to resolve the dispute. (Doc. 52-27.) On
July 18, 2022, the Alabama Supreme Court, over a dissent from the Chief Justice,
granted the State’s motion and set Miller’s execution for September 22, 2022.3 (Doc.
52-28.)

3

Chief Justice Parker dissented without explanation.
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4. Miller’s § 1983 Lawsuit
In his Amended Complaint, Miller brings three causes of action against the
Defendants in their official capacities.

(Doc. 18.)

First, Miller claims the

Defendants violated his procedural due process rights under the Fourteenth
Amendment “by failing to ensure an adequate procedure for protecting his election
to be executed by nitrogen hypoxia.” (Id. at 15.)
Second, Miller alleges the Defendants violated his right to equal protection
under the Fourteenth Amendment by treating him differently from similarly situated
death row inmates at Holman who, like Miller, timely submitted nitrogen hypoxia
election forms. (Doc. 18 at 17.) One inmate mentioned by Miller was Jarrod Taylor,
who had his execution motion withdrawn by Attorney General Marshall in 2019
after Taylor claimed that he had elected nitrogen hypoxia. (Doc. 18-2.) Neither the
Attorney General’s Office nor the ADOC could find Taylor’s election form in their
files. (Id. at 3.) Nonetheless, the Attorney General decided to withdraw the motion
because Taylor produced documents and communications with his lawyer that,
according to the Attorney General, “support[ed] the assertion that he made a timely
election of nitrogen hypoxia,” and the ADOC was not prepared to proceed with an
execution by nitrogen hypoxia. (Id. at 2–3.)
Finally, Miller claims the Defendants’ decision to execute him by lethal
injection rather than nitrogen hypoxia is arbitrary and capricious in violation of the
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Eighth Amendment. (Doc. 18 at 18–19.) Miller does not assert a method of
execution challenge as to lethal injection or nitrogen hypoxia.
Miller asks the Court to declare that he “timely submitted his election form
pursuant to Ala. Code § 15-18-82.1(b) and opted into execution by nitrogen
hypoxia,” and that the Defendants’ decision to execute Miller by lethal injection
rather than nitrogen hypoxia violates his Eighth and Fourteenth Amendment rights.
(Id. at 19.) Additionally, Miller asks the Court to enter an injunction requiring the
Defendants to honor his nitrogen hypoxia election and enjoining the Defendants
from executing him with the current lethal injection protocol. (Id. at 19–20.) Each
Defendant has filed a motion to dismiss Miller’s Amended Complaint. (Docs. 21,
30, 35.)
On September 1, 2022, Miller filed a Motion for Preliminary Injunction
asking this Court to enjoin the Defendants from executing Miller via lethal injection
and to declare that his nitrogen hypoxia election be honored. (Doc. 28.) On
September 2, 2022, Miller filed a Motion for Expedited Discovery, (Doc. 32), which
the Defendants partially opposed, (Doc. 33). The Defendants attached to its partial
opposition messages or emails between Miller and a pen-pal, (Docs. 33-1, 33-2, 333), including one in which Miller states in relevant part: “Lawyers saying same thing
got to wait,” (Doc. 33-1). The Court ordered the Defendants to answer Miller’s
Interrogatories and Requests for Admission and to produce documents the
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Defendants had agreed in their response to produce, as well as a small subset of
email communications regarding Miller’s election form that the Defendants could
locate with reasonable diligence.

The Court also ordered Miller to produce

documents in his possession relating to his claims or request for preliminary
injunction and any documents he intended to introduce at the September 12
evidentiary hearing. On September 7, 2022, counsel for the Defendants deposed
Miller at Holman. (Doc. 52-29.)
5. Evidence Presented at the September 12, 2022 Hearing
At the evidentiary hearing, Miller presented recordings of two phone calls he
made to his brother on April 21, 2022, two days after his execution date was
requested. In the first call, he informed his brother that his execution date had been
requested. The two discussed whether Miller’s brother would be present for the
execution, as well as drafting a will, ensuring that Miller’s remains would be
cremated, and the handling of his remains. During the second call, Miller mentioned
a piece of paper about “gas stuff,” that Miller called his lawyers and told them they
needed to call “the Equal Justice and stuff, and the public defenders” and that “they
might be able to halt, put a hold on that,” and that he told his lawyers “a long time
ago” but his “lawyer did not even know what [he] was talking about.”4

4

At Miller’s deposition, the State’s counsel asked Miller if he agreed he had said, “Some other
inmates signed a piece of paper about using some kind of gas stuff. I called those lawyers and told
them they need to call the Equal Justice and stuff and the Public Defenders.” (Doc. 52-29 at 66–
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Without objection from the Defendants, Miller read into the record parts of
several depositions from another case, Smith v. Dunn, Case No. 19-cv-927-ECM
(M.D. Ala.), including those from Cynthia Stewart, who served as Holman’s warden
during the election period (Doc. 52-13); Captain Jeff Emberton, who served at
Holman during the election period (Doc. 52-14); Warden Raybon, who served at
Holman during the election period (Doc. 52-15); and Jennifer Parker, Warden
Stewart’s secretary during the election period (Doc. 52-17).
During her May 26, 2021 deposition, Cynthia Stewart testified she first
learned of the new nitrogen hypoxia law through the news, that she was told to
expect forms electing the method from inmates, and that prior to the late June
meeting between the Federal Defenders and their clients at Holman, she did not
receive any election forms. (Doc. 52-13 at 74, 78–80.) Warden Stewart testified
that her secretary, Jennifer Parker, kept track of inmates’ completed election forms
and scanned them to wherever they had to go. (Id. at 88.) Additionally, Warden

67.) Miller responded: “Federal Defenders. I meant Federal Defenders.” (Id. at 67.) The State’s
counsel then asked Miller, “But is that what you indicated to your brother?”, to which Miller
responded, “Oh, yes.” (Id.) At the evidentiary hearing, however, Miller’s counsel insisted that
Miller said he had told his lawyers a long time ago that he had chosen gas, “or something to that
effect.” (Doc. 58 at 161, 176.) The Court listened to the audio at the hearing and numerous times
after the hearing. The audio is not clear, and it is difficult to understand parts of it. The Court
cannot ascertain with certainty what was said in the call. Given the audio quality, reasonable
factfinders could reach different conclusions about the contents of the call.
Regarding the lawyer not knowing what he was talking about, Miller explained in his deposition
that “there’s many lawyers, legal counsel. And the one I talked to was just one.” (Doc. 52-29 at
68.)
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Stewart testified that she received instructions from someone higher in the chain of
command at the ADOC in Montgomery to distribute election forms to inmates so
that they could elect nitrogen hypoxia as their method of execution, but she could
not recall who gave her this instruction. (Id. at 83–84.) She instructed Captain
Emberton to distribute the forms, although she could not recall who made the copies
of the blank forms for distribution. (Id. at 84–87.) She also could not recall what
day Captain Emberton distributed the forms, and she did not know whether Ms.
Parker received the forms distributed by Captain Emberton. (Id. at 88.) Warden
Stewart testified that inmates could give their completed forms to a staff member,
give the forms to her when she made rounds through the facility, or they could place
their forms in a locked collection box, which was emptied daily and given to the
warden’s secretary. (Id. at 89–91.)
During his May 24, 2021 deposition, Captain Emberton testified that Warden
Stewart directed him to distribute election forms to every Holman death row inmate.
According to Captain Emberton, Warden Stewart told him there was a box of
election forms and envelopes on the conference room table and that he was to
distribute a form and envelope to each inmate. He said she instructed him not to
write anything down, not to write anyone’s name down, and not to keep track of who
submitted a form. (Doc. 52-14 at 52–55.) Captain Emberton could not recall what
day he distributed the forms. He testified that he went to death row, explained to the
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inmates that the law had changed and they now had a choice in their execution
method, and if they wanted to choose, they were to fill out a form and he would
return later in the day to pick it up. (Id. at 55–56.) He said he gave this “spiel” to
three or four inmates at a time because their cells were close together. (Id. at 55–
56.) He personally handed a form to each inmate unless the inmate was asleep, in
which case he knocked on the cell door to try to wake the inmate up and left the form
in the bars of the cell. (Id. at 56, 58.) Also, if the inmate was not in his cell at the
time, that inmate did not receive a form. Captain Emberton recalled distributing the
forms in the morning. He recalled coming back after lunch and collecting the forms,
and then he returned the box with the collected forms to the conference room table
and told Warden Stewart that he was finished. (Id. at 57.) However, Captain
Emberton later testified in the same deposition that he did not remember the timeline
for collection and that he may not have turned the box of forms in that evening. (Id.
at 61.) He did not count how many forms were returned to him. (Id. at 57.) He
testified that tier runners did not distribute the forms. (Id. at 58.) He also testified
that he did not recall receiving any additional forms after that day. (Id. at 60.) He
did not tell lieutenants or sergeants that he distributed the forms, and Warden Stewart
did not send out a memo to staff about it. (Id. at 61–62.) He also explained that
Holman death row inmates are locked down in their cells 23 hours a day. (Id. at 20.)

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Warden Raybon has served as a warden at Holman since 2014. (Doc. 52-15
at 18–19.) During his July 19, 2021 deposition, Warden Raybon echoed Warden
Stewart’s testimony that she had directed Captain Emberton to distribute election
forms after receiving instructions to do so from the central office. (Id. at 60–62.)
Warden Raybon recalled seeing an election form in Warden Stewart’s office, but he
could not recall if she showed it to him, if he saw it on her desk, or something else.
(Id. at 60–61.)
During her July 9, 2021 deposition, Jennifer Parker testified that she received
election forms the last week of June 2018; that she scanned and emailed a copy of
each form to ADOC’s legal counsel, Jody Stewart, in Montgomery; and that she
placed the originals of the forms in a file. (Doc. 52-17 at 6–7.) Ms. Parker recalled
receiving a stack of election forms after the Federal Defenders’ late June visit and
that she knew some forms came in the mail. (Id. at 7.) Otherwise, Ms. Parker said
she was unaware of where the forms she received came from. (Id.) Ms. Parker was
not aware that blank forms had been distributed to every death row inmate at
Holman. She said that she did not create a list of inmates who submitted an election
form. (Id. at 12.) She could not recall Warden Stewart asking her to do anything
with the forms.
Without objection from the Defendants, Miller also presented a transcript of
ADOC Assistant Deputy Commissioner Cheryl Price’s testimony from the hearing
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held by this Court on December 9, 2021, in Reeves v. Dunn, Case No. 20-cv-27RAH (M.D. Ala.). Ms. Price served as a Rule 30(b)(6) witness for the ADOC. (Doc.
52-19 at 92–93.) She testified that she was not aware of any protocol the ADOC
established regarding the nitrogen hypoxia election process, nor was she aware of
any discussion among staff about how to handle nitrogen hypoxia elections. (Id. at
97.) She also testified that she was not aware of any procedure in place regarding
how to log forms or pieces of paper from inmates who elected nitrogen hypoxia.
(Id.) She said there was no directive from the ADOC to the individual wardens. (Id.
at 98.) She said she had no knowledge of Captain Emberton keeping track of who
he gave election forms to, nor was she aware of any inmate being asked to sign a
receipt that they received the form. (Id. at 102.)
At the evidentiary hearing, Miller took the stand and testified. He testified
unequivocally that he does not like needles. He explained that, prior to June 2018,
someone at the ADOC who tried to insert a needle into his arm to draw blood had
trouble finding a vein. (Doc. 58 at 92–93.) According to Miller, they “poke” the
needle around, move it around, “sometimes they’ll nick a nerve, or they’ll pull it out
and go after the hands or the other arm.” (Id. at 93.) Miller estimated that the entire
process to draw his blood took 30 minutes. (Id. at 95.) He described the experience
as “painful” and “feeling like a pin cushion.” (Id. at 93–94.) Afterwards, Miller had

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a large bruise covering the area inside his elbow that lasted a couple days. His
testimony on this subject was uncontroverted.
In his testimony, Miller also recalled that in June 2018, a correctional officer
yelled down the hallway to announce that he was handing out forms for the inmates
to sign and that he would return later that day to collect them. Miller did not know
which correctional officer made the announcement. He explained that he was lying
in his bed with his head against the rear wall of the cell during this time. He also
said that he was unable to see out of his cell and down the hallway, and due to the
cell’s design, he could only see directly in front of his cell. Miller was told afterthe-fact that Captain Emberton had distributed forms to all the inmates.
Miller testified that he recalled receiving the form and reading it, and he said
the words “nitrogen hypoxia” reminded him of “nitrous” or “nitrous oxide,” the gas
that dentists give patients. (Id. at 99–100.) He testified that he used to deliver
medical supplies to dentist and plastic surgery offices and that is how he knew about
nitrous oxide. (Id. at 100.) As he explained, with the nitrous oxide one gets at the
dentist, “they put you to sleep.” (Id.) He explained that he wanted to elect nitrogen
hypoxia because, while he did not want to die at all, he was particularly concerned
about dying by lethal injection due to his fear of needles and his past negative
experiences with them. (Id.)

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Miller could not recall how long he thought about nitrogen hypoxia before
deciding to sign the form. He testified that he signed the form and placed it in a slot
between the bars where ADOC staff could collect forms, colloquially known as the
“bean hole.” (Id. at 97, 101.) He testified, without contradiction, that he typically
left documents in the bean hole to be picked up. (Id. at 98.) He did not know who
collected the election form or what happened to the form after it was collected. He
said he had yelled down the hallway saying he wanted the form notarized and a copy
for himself, but he did not receive a copy or follow up on his request.
On cross-examination by the State, Miller testified that he lay down after
placing the form in the bean hole because he had ankle pain. Miller was unable to
describe the correctional officer who passed out the forms, and he said he was unsure
whether the same officer both dropped off and collected the form. He also discussed
the second phone call with his brother in April 2022, explaining that he had “found
out somebody signed it before me and signed it after me, and I thought it was just
one time. It was one time signing. And I’m finding out that other people was able
to . . . sign or turn it in whenever they felt like turning it in.” (Id. at 110.)
In addition, Miller explained that his attorneys had contacted the ADOC in
2021 when he was placed in “single walk” due to a stabbing incident, but he said he
was cleared of all wrongdoing by prison officials. The State introduced an email
exchange between Miller’s counsel and the ADOC regarding Miller and his
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counsel’s concerns with the ADOC’s internal disciplinary procedures. The emails
concerned the attack by another inmate which resulted in Miller’s assignment to
single walk and counsel’s concerns that Miller was being treated unfairly during the
process.
Evidence was also submitted regarding two other Holman death row inmates
who raised complaints about their completed election forms. First, Jarrod Taylor
claimed that he gave his completed election form to an ADOC staff member
(Lieutenant Franklin) during the statutory election period with instructions to give
the form to the warden, (Doc. 51-2 at 22), but the State was unable to find Taylor’s
form in its files when it moved to set his execution date in 2019. Second, Calvin
Stallworth claimed that he gave his completed election form to an ADOC staff
member (an unnamed guard) during the statutory election period, but the individual
refused to deliver the form to Warden Stewart. (Doc. 52-8 at 2–3.) Mr. Stallworth’s
form was ultimately delivered to the warden.
6. Status of Alabama’s Execution Protocol for Nitrogen Hypoxia
When the Alabama Code was amended to add nitrogen hypoxia as an
alternative method of execution, and throughout the June 2018 election period, the
ADOC had not yet developed a protocol for performing nitrogen hypoxia
executions. In a December 2021 hearing before this Court in a different case
concerning nitrogen hypoxia election forms, counsel for the ADOC represented that
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the protocol should be ready within the first three or four months of 2022. (Doc. 78
at 219 in Reeves v. Dunn, Case No. 20-cv-27-RAH (M.D. Ala.).) During the
September 2, 2022 status and scheduling conference in this case, counsel for the
State represented that prior to the filing of this lawsuit, the State anticipated making
an announcement with respect to the nitrogen hypoxia protocol in October. (Doc.
39 at 21.) Subsequently, on September 8, 2022, the State represented in its Response
in Opposition to Plaintiff’s Motion for a Preliminary Injunction that if this Court
were to issue an injunction requiring Miller’s execution by nitrogen hypoxia, the
execution still could be conducted on September 22, 2022. (See Doc. 42 at 10.) At
the September 12, 2022 evidentiary hearing, counsel for the State stated that, if the
Court enjoined Miller’s execution by lethal injection, it was “very likely” the ADOC
could execute Miller by nitrogen hypoxia on September 22, 2022. (Doc. 58 at 57–
58.) On September 15, 2022, the State filed an affidavit from Commissioner Hamm,
in which the Commissioner represented that the ADOC is not prepared to execute
Miller by nitrogen hypoxia on September 22, 2022.
Suffice it to say, the readiness of the protocol and of the ADOC to conduct
executions by nitrogen hypoxia has been a moving target. In this case specifically,
the Court has received inconsistent information along the way from the State. In any
event, the Court accepts as true Commissioner Hamm’s sworn statement that the
ADOC cannot execute Miller by nitrogen hypoxia on September 22, 2022. The
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Court notes that while nitrogen hypoxia may not be available on September 22,
2022, the State has not said when it expects the protocol to be ready. From all that
appears, the State intends to announce its readiness to conduct executions by
nitrogen hypoxia in the upcoming weeks.
III.

JURISDICTION AND VENUE

The Court has original subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331. Personal jurisdiction and venue are uncontested, and the Court concludes
that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.
IV.

DISCUSSION

“A preliminary injunction is an extraordinary remedy never awarded as of
right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Miller is
entitled to a preliminary injunction if he demonstrates (1) a substantial likelihood of
success on the merits; (2) a likelihood of suffering irreparable injury without the
injunction; (3) that the threatened injury to him outweighs the harm the injunction
would cause the Defendants; and (4) that the injunction would not be adverse to the
public interest. Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of
Jacksonville, 896 F.2d 1283, 1284 (11th Cir. 1990). Where, as here, “the [State] is
the party opposing the preliminary injunction, its interest and harm merge with the
public interest,” and thus the third and fourth elements are the same. Swain v. Junior,
958 F.3d 1081, 1091 (11th Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 435
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(2009)). A preliminary injunction is “‘not to be granted unless the movant clearly
established the “burden of persuasion”’ for each prong of the analysis.” Am.’s
Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1329 (11th Cir. 2014) (citation
omitted). Miller, as the movant, must satisfy his burden on all four elements “by a
clear showing.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam).
A. Substantial Likelihood that Miller Timely Elected Nitrogen Hypoxia
All parties agree that, to evaluate Miller’s likelihood of success on the merits,
a material issue of fact must first be resolved: whether Miller timely elected nitrogen
hypoxia—or, at this stage, whether it is substantially likely that Miller timely elected
nitrogen hypoxia. The State agrees that this Court is the proper factfinder to make
this determination.5
The Defendants have not filed answers to the Amended Complaint, instead
filing motions to dismiss. But it appears to the Court, based on a review of the
record, that Warden Raybon’s affidavit—attached to Miller’s Amended
Complaint—creates a factual dispute, at least as to whether Miller timely submitted

5

At the evidentiary hearing, the Court inquired of the State’s counsel, “If it’s a fact question, where
is the appropriate forum for that to be resolved?” (Doc. 58 at 160.) Counsel responded, “Here,
now that [Miller’s] filed his 1983, it would be this court.” (Id.)
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the form.6 Warden Raybon attests that he and his secretary looked in the file where
election forms have been stored since June 2018, and they did not find an election
form for Miller. (Doc. 18-3 at 8.) Additionally, the State produced in discovery
documents purporting to comprise all the nitrogen hypoxia election forms the ADOC
has received, none of which is a completed form from Miller. These documents
were part of Miller’s evidentiary submission at the September 12 hearing. Like
Warden Raybon’s affidavit, these documents—along with Miller’s affidavit,
deposition testimony, and hearing testimony—create a factual dispute, at least as to
whether Miller timely submitted the nitrogen hypoxia election form. The Court
notes that the State did not expressly identify either the nitrogen hypoxia file or the
completed forms as potentially rebutting Miller’s testimony. Nonetheless, in light
of this factual dispute, the Court must weigh the evidence presented and assess
Miller’s credibility in order to determine whether it is substantially likely that he
timely elected nitrogen hypoxia.

6

Miller argues that the State “ha[s] yet to provide any evidence that Mr. Miller did not submit an
election form.” (Doc. 48 at 3.) However, in the proceedings before the Alabama Supreme Court,
Miller took the position that Warden Raybon’s affidavit and Miller’s affidavit “present[ed] a
factual conflict that must be resolved,” necessitating a remand to an Alabama trial court to conduct
an evidentiary hearing and weigh the conflicting testimony. (Doc. 52-27 at 4–5.) To the extent
Miller now contends that Warden Raybon’s affidavit is insufficient to create a factual dispute, such
a contention would be inconsistent with Miller’s earlier position when litigating before the
Alabama Supreme Court.
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Having listened to Miller’s live testimony and observed his demeanor, and
having compared Miller’s live testimony with his deposition and affidavit, and with
no direct contradicting evidence from the State that is specific to Miller, the Court
finds substantially credible Miller’s testimony that he timely submitted a nitrogen
hypoxia election form. Miller says he followed the instructions for submitting an
election form that were given by the correctional officer7 who distributed the forms.
In accordance with those instructions, Miller filled out the election form and turned
it in the same day by placing it in the bars of his cell (the bean hole), where he
typically placed documents for retrieval and where it was picked up by a prison
official. At the hearing, the State did not dispute that placing a form in the bean hole
was a proper means of delivering an election form to the warden.

Miller’s

description of the instructions he received is consistent with Captain Emberton’s
testimony8 from another case that he distributed forms to all death row inmates one

7

Although Miller could not remember details about who distributed the forms and could not say
that it was Captain Emberton, the Court finds it more likely than not that it was Captain Emberton.
Another possibility is that there was a second mass form distribution event at Holman. But the
Court is aware of no evidence that would support an inference that a second form distribution
occurred at Holman. Indeed, Warden Stewart’s and Captain Emberton’s deposition testimony is
clear that the ADOC’s distribution of forms at Holman was a single event undertaken by Captain
Emberton at Warden Stewart’s direction. Nonetheless, the Court acknowledges that Miller cannot
identify Captain Emberton as the correctional officer who distributed the election form to him.
8

At the hearing, counsel for the State was quick to correct the Court when the Court suggested
that Captain Emberton was the officer who would have handed out and collected Miller’s form.
(See Doc. 58 at 162.) As such, in challenging a suggestion that Captain Emberton was the person
who handed out and collected the forms, including Miller’s form, the State has created a gap in
the chain of custody as it concerns the collection of the forms at the time Miller says he submitted
his form.
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morning and told them he would return to collect the forms later that day, and that
he did pick the forms up later that day.
A consistent theme animates Miller’s narrative regarding why he elected
nitrogen hypoxia in lieu of lethal injection: his dislike of, and desire to avoid, contact
with needles. Miller consistently testified in his deposition and at the hearing that
he elected nitrogen hypoxia to avoid being “stabbed” with needles. (Doc. 52-29 at
38, 56, 57; Doc. 58 at 100.) At the hearing, Miller elaborated that he had prior bad
experiences at Holman where someone struggled to insert a needle into his arm,
causing him to be poked and prodded in an experience he described as “painful” and
“feeling like a pin cushion” and that left him with a large bruise that lasted several
days. (Doc. 58 at 92–94.) This testimony was uncontroverted. In his deposition,
Miller explained that he had heard other inmates had allergic reactions to the lethal
injection and that by electing nitrogen hypoxia, he would avoid “allergic reactions
to the chemicals that they said was in the lethal injection.” (Doc. 52-29 at 38.) The
Court finds compelling and credible Miller’s consistent explanation that he elected
nitrogen hypoxia primarily to avoid needles.
Miller also explained that, based on some limited knowledge of “nitrous” or
“nitrous oxide” that is used at the dentist and plastic surgery offices, he thought
nitrogen hypoxia would be less painful because “you just went to sleep,” (Id. at 38–
39), “they put you to sleep,” (Doc. 58 at 100), or “you just go under,” (Doc. 52-29
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at 56). He explained the basis of his belief was hearing about others’ experiences
with gas at the dentist and his prior employment experience delivering equipment to
dentist and plastic surgery offices. Thus, Miller “thought” that nitrogen hypoxia
would be “a more humane thing.” (Id.) The Court finds this testimony compelling
and credible.
Here, the State does not articulate what circumstances legally meet the
definition of “delivery to the warden” and what circumstances do not. Nor does the
State argue that putting an election form in the bean hole is insufficient to accomplish
delivery to the warden. Nor does the State present any testimonial evidence from
Captain Emberton or any other correctional officer who affirmatively stated that
Miller did not submit a form when that officer collected the forms from death row
after having handed them out.9 The State simply argues that Miller did not do what
he now claims he did because the State does not have a copy of Miller’s completed
form in its nitrogen hypoxia file. Thus, the Court now turns to the State’s arguments
for why Miller’s testimony should be disbelieved.
Although not expressly identifying it, the State produced two pieces of
evidence suggesting that Miller did not elect nitrogen hypoxia. First, an affidavit

9

The State does not contend that Captain Emberton, Warden Raybon, or any other witness whose
testimony the State wished to present was unable to appear at the evidentiary hearing, nor does the
State contend that any such witness was unable, due to the expedited nature of the proceedings, to
provide a declaration for the State to offer into evidence.
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from Warden Raybon, who was not called as a witness at the evidentiary hearing,
states that he and his secretary looked in one place for Miller’s form and could not
find it. Second, the State produced emails where Jennifer Parker sent ADOC Legal
in Montgomery copies of completed election forms that she had received, and a form
signed by Miller was not among them. Neither piece of evidence directly rebuts
Miller’s testimony that he signed the form and put it in the bean hole; rather, each
piece only potentially indirectly rebuts Miller’s testimony that he delivered the form
to the warden by signing the form and putting it in the bean hole.
Where, as here, Miller followed the instructions he says he was given for
submitting his election form (and these instructions are consistent with those Captain
Emberton gave), and the State does not argue that his submission would be legally
insufficient, the State’s evidence that his form is not among its records “does not
mean it was not received . . . . It could have simply been misplaced after receipt or
even misfiled.” Cf. Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1241 (11th Cir.
2002) (analyzing receipt in the context of mailing a document that was properly
addressed, stamped, and mailed, which creates a rebuttal presumption of receipt); id.
at 1240 (explaining that the presumption of receipt is “not a conclusive presumption
of law, but a mere inference of fact, founded on the probability that the officers of

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the government will do their duty and the usual course of business” (citation
omitted)).10
Here, the Court has before it no evidence of a standardized policy or procedure
for ADOC officials to collect and transmit completed forms to Jennifer Parker for
logging and retention, nor is there evidence of a chain of custody from the time forms
were collected by Captain Emberton or other ADOC officials. The evidence only
reflects that Ms. Parker received completed election forms, scanned and sent copies
to Jody Stewart at ADOC Legal, and put the original forms in a file. But other than
a stack of forms she received after the Federal Defenders’ visit and forms that arrived
by mail, Ms. Parker did not know where completed election forms came from.
Ms. Parker also testified that she was unaware that blank forms had been distributed
to all death row inmates at Holman.
Thus, there is no evidence of how, or even if, forms collected by Captain
Emberton or other ADOC officials made their way to Ms. Parker for filing and
storing. Captain Emberton said he did not tell the lieutenants and sergeants that he
distributed the forms and that Warden Stewart did not send out a memo to staff. And
evidence suggests that two Holman death row inmates had problems after turning in
their election forms to ADOC staff: (1) Jarrod Taylor gave his completed election

10

The Court does not suggest that a presumption of receipt applies here. Nonetheless, the Court
finds Barnett’s discussion instructive in evaluating the weight of the State’s evidence.
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form to Lieutenant Franklin and explained it needed to be given to the warden, but
the State was unable to find Taylor’s form in its file; and (2) Calvin Stallworth gave
his completed election form to a guard, but the guard refused to deliver the form to
Warden Stewart. This evidence suggests that what Miller claims the ADOC did—
or failed to do—after he turned in his form was not unique to him. Other than
looking in a file and reviewing emails where copies of completed election forms
were transmitted, the State has not explained any efforts it undertook to collect all
of the forms from death row inmates, how all of these forms were aggregated, or
how the forms made their way into its nitrogen hypoxia file or to ADOC Legal in
Montgomery. Nor has the State showed any efforts it undertook to look for a form
signed by Miller or to investigate what might have happened to the form.
While prior deposition testimony from Captain Emberton was presented about
his collection of election forms, during the hearing, counsel for the State was quick
to argue against any inference that Captain Emberton was the individual who
collected completed forms from Miller’s tier at the time Miller claims that they were
collected.11 As such, the State has all but argued away any relevance, from the
State’s perspective, that Captain Emberton has to Miller’s election.
11

The following exchange occurred at the evidentiary hearing:
THE COURT: If you were going to play the game of technicalities, and presumably
it’s Captain Emberton, and he says, I’m going to come back by and take these forms
back up, was putting the executed form in the bean hole sufficient?
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Because Miller followed the instructions he says he was given for submitting
his election form, because there is no evidence of a chain of custody establishing
how inmates’ completed election forms made their way to Jennifer Parker and into
the nitrogen hypoxia file, and because there is evidence suggesting that the State was
unable to find Taylor’s form despite his giving the form to an ADOC official to give
to the warden, that Warden Raybon could not find Miller’s form in one location is
weak evidence that Miller did not timely submit a form. Cf. Barnett, 283 F.3d at
1242 (explaining that an office employee’s mere assertion that the office never
received a completed form in the mail is insufficient to rebut the presumption of
receipt without, for example, the employee setting forth their personal knowledge of
office procedures for processing received mail).12 Similarly, that Miller’s form was
not among the forms Ms. Parker emailed to ADOC Legal is weak evidence that
Miller did not timely submit a form. Even in the absence of testimony from Captain
Emberton or another ADOC official that Miller did not leave a form in the bean hole
or otherwise submit a form, if there was evidence that Captain Emberton and other
ADOC officials who received election forms routinely followed a particular

MR. HOUTS: I want to stop the Court right there. Absolutely inappropriate to say
the presumption is it’s Captain Emberton.
(Doc. 58 at 162 (emphasis added).)
12

Again, the Court does not suggest that a presumption of receipt applies here. Rather, the Court
finds Barnett’s discussion instructive in evaluating the weight of the State’s evidence.
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protocol, such as taking the forms directly to Ms. Parker or following some other
process to get the forms into Ms. Parker’s custody, the State’s evidence likely would
be stronger. However, the Court sees no such evidence in the present record.
Instead of rebutting head-on Miller’s testimony about submitting the form by
placing it in the bean hole, the State attacks the weight and credibility of Miller’s
testimony in six ways: (1) Miller has refused to corroborate his testimony with
attorney–client privileged communications at the time of his election in June 2018;
(2) Miller remembers very few details about the day he says he made the election;
(3) Miller purportedly testified that it is not “fair” that he be executed by nitrogen
hypoxia now because other inmates elected “before” him; (4) Miller’s second phone
call with his brother on April 21, 2022, was the first time Miller mentioned nitrogen
hypoxia in a conversation; (5) according to the State, Miller lied in his affidavit about
giving his election form to the person who was collecting forms from the other
inmates; and (6) Miller has said he does not want to die, has recently expressed
concerns about being executed by nitrogen hypoxia, and has stated that he does not
want to be executed by that method until an independent evaluation has been
performed. The Court will address each of the State’s positions in turn.
First, the State attacks the weight of Miller’s testimony on the grounds that
Miller will not corroborate his testimony by waiving the attorney–client privilege
and disclosing communications with his counsel from June 2018. The State points
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out that in 2021, Miller allowed his attorneys to communicate with the ADOC about
concerns he had shared with them about his “single walk” status, which, according
to the State, suggests that Miller has been willing to waive the privilege in the past
if he believed it would help him. Here, attorney–client privileged communications
would be probative if Miller and his attorneys discussed his decision to elect or not
elect nitrogen hypoxia. However, “[a]ny such inference would intrude upon the
protected realm of the attorney-client privilege.” Parker v. Prudential Ins. Co. of
Am., 900 F.2d 772, 775 (4th Cir. 1990) (per curiam). While corroborating evidence
can boost the weight afforded to a witness’s testimony, the Court declines to draw
any negative inference about the weight owed to Miller’s testimony based on his
decision not to waive the attorney–client privilege. “The privilege was created to
protect the right to effective counsel,” and “[t]o protect that interest, a client asserting
the privilege should not face a negative inference about the substance of the
information sought.” Id. That Miller may have waived the privilege on a different
occasion concerning a different matter does not change the analysis, nor does it bear
on Miller’s credibility.
Second, the State argues Miller is not credible because he remembers so few
details about the day he says he made his nitrogen hypoxia election. The State points
out that Miller could not identify which correctional officer distributed the forms,
nor could he recall the officer’s height, race, hairstyle, or uniform color. He also
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could not remember the exact date he signed the form or how long he thought about
it before he signed it. But as Miller explained, the election happened over four years
ago, which is why he cannot remember many details. Moreover, Miller’s level of
recollection is consistent with that of other ADOC officials involved in distributing
election forms at Holman who testified in 2021—closer in time to the election period
than now. For starters, neither Warden Stewart nor Captain Emberton could recall
the date the forms were distributed. Additionally, Warden Stewart testified that
someone above her in the chain of command told her to distribute election forms,
but she could not recall who that was. And she also could not recall who made the
copies of the blank forms to be distributed. Warden Raybon testified that he saw the
election form in Warden Stewart’s office, but he did not remember how or where he
saw it—whether she showed it to him, whether it was on her desk, or something else.
Captain Emberton testified that he collected the forms from inmates the same day
he distributed them and then returned the box of forms to the conference room table.
However, later in the same deposition, he backtracked and said he did not remember
the timeline for collection and that he may not have turned the box of forms in that
evening. When the Court asked the State’s counsel what Captain Emberton would
say if he were asked if he picked up a completed form from Miller, counsel
responded:
I believe his most recent answer would have been . . . I don’t know if I
did or didn’t. . . . [I]t’s like Mr. Miller said. It’s four years ago. . . . I
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feel the same way as Mr. Miller. I agree with him. Asking me to go
back four years and find out what happened is very unfair to the
defendants.
(Doc. 58 at 128.) In sum, key individuals in addition to Miller who were involved
in the form distribution process in 2018 generally do not recall many details—even
critical ones, like who told Warden Stewart to pass out the forms—due to the passage
of time.
Also, Miller’s testimony reflects that his primary source of information that
day was auditory rather than visual due to the design of his cell. His unrebutted
testimony demonstrates that he could not see much beyond his cell except directly
in front of the bars and that he heard a correctional officer announce that he was
about to distribute forms.

Again, this testimony is consistent with Captain

Emberton’s testimony that he did not speak to each inmate individually, although
the State’s attorney was quick to correct the Court that it cannot be inferred that
Captain Emberton was the one who collected the forms on Miller’s tier. Thus,
Miller’s inability to produce a physical description of the officer who passed out the
forms is also attributable to Miller’s limited ability to see outside of his cell. Also,
although Miller cannot remember how long he thought about the form before signing
it, his testimony demonstrates that he had a small window of time to do so, as the
officer announced that he would be back later in the day to collect the forms. Thus,

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it is not surprising that Miller cannot recall more details given the short time in which
the process occurred.
The Court has also considered whether the gravity of the decision embodied
in signing the election form would leave a strong impression on an inmate who
signed it, such that an inmate would or should have a better recollection than Miller
of the circumstances surrounding his election. Maybe, maybe not. In this particular
case, Miller’s testimony reflects a fairly straightforward decision-making process
about electing nitrogen hypoxia that was primarily animated by a desire to avoid
being stabbed with needles, as opposed to a complex or thoughtful decision or desire
to affirmatively elect nitrogen hypoxia as his method of execution. Thus, the Court
finds Miller’s inability to recall details to be consistent with his single-minded focus
on avoiding contact with needles, and no different from the nature of the deposition
testimony provided by ADOC officials. In sum, under the circumstances presented
here, Miller’s inability to recall more details about his election does not undermine
the weight or credibility of his testimony.
Third, the State contends that Miller “subconsciously” admitted that he did
not timely elect nitrogen hypoxia because he testified in his deposition that it would
not be “fair” to execute him by hypoxia at the present moment because other inmates,
such as Bobby Waldrop, Jarrod Taylor, and Eugene Clemons, elected “before” him.
(Doc. 42 at 6.) According to the State, Miller admitted that he does not have personal
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knowledge of when other inmates elected and that he does not remember exactly
when he elected. (Id.) Thus, according to the State, he could only be talking about
those who elected “before” him because he knows he did not elect in 2018. (Id.)
The Court’s examination of Miller’s deposition transcript reveals that the
State has misrepresented Miller’s testimony. Miller did not say it would be unfair
to execute him now because other inmates elected before him.13

Instead, Miller

testified: “There’s people who were prior to me whose appeals have run out, you
know, they signed it like I did. Why are they not here going through the same thing
I am doing with the Court Reporter recording this.” (Doc. 52-29 at 82–83.)
Elsewhere, Miller stated that “other people signed it like [he] did” and their
executions have been “put on hold.” (Id. at 76.) Miller did specifically mention
Jarrod Taylor, but Miller said: “Did you question Jarrod Taylor? They never found
his [form], but did he go through this deposition like I’m going through?” (Id.)
Thus, Miller’s actual deposition testimony is that he believes it is unfair for the State
to treat him differently than other inmates who elected nitrogen hypoxia by making
only him sit for a deposition and putting others’ executions on hold but not his.
Moreover, Miller testified that he learned after the election period that some inmates
elected before him and some elected after him, when he had previously thought it

13

It would be one thing if the State had argued that the Court should draw those inferences from
Miller’s testimony, but the State represented these statements as Miller’s actual testimony. (See
Doc. 42 at 6.)
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was a “one time signing.” (Doc. 58 at 110.) This is supported by the record, which
reflects that inmates submitted election forms on different days within the statutory
period. Thus, to the extent Miller’s comment about inmates “who were prior to me”
refers to inmates who elected before him,14 the Court cannot construe this comment
as an admission that Miller elected after the statutory period expired. The Court
perceives nothing in Miller’s deposition testimony that would support the inference
that Miller subconsciously admitted that he elected nitrogen hypoxia after June 2018,
and thus the Court finds the State’s argument unconvincing.
Fourth, the State argues that Miller’s second April 21, 2022 phone call with
his brother undermines Miller’s testimony. The State points out that this second
phone call is the first time “gas stuff”—nitrogen hypoxia—had come up in
conversation. According to the State, if Miller had truly elected nitrogen hypoxia,

14

It could also refer to inmates who elected nitrogen hypoxia and who exhausted their appeals
before Miller did, such as Bobby Waldrop, Jarrod Taylor, and Eugene Clemons. For Bobby
Waldrop, the Eleventh Circuit affirmed the district court’s denial of federal habeas relief on
September 26, 2017. Waldrop v. Comm’r, Ala. Dep’t of Corr., 711 F. App’x 900 (11th Cir. 2017)
(per curiam). The U.S. Supreme Court denied certiorari on October 1, 2018. Waldrop v. Dunn,
139 S. Ct. 118 (2018) (mem.). For Jarrod Taylor, the district court denied federal habeas relief
and denied a certificate of appealability (COA) on January 25, 2018, Taylor v. Dunn, No. 14-cv0439, 2018 WL 575670 (S.D. Ala. Jan. 25, 2018), and denied Taylor’s motion to alter or amend
on March 12, 2018, Taylor v. Dunn, No. 14-cv-0439, 2018 WL 1308947 (S.D. Ala. Mar. 12, 2018).
The Eleventh Circuit denied Taylor’s motion for a COA on October 5, 2018. Taylor v. Ala. Dep’t
of Corr., No. 18-11523-P, 2018 WL 8058904 (11th Cir. Oct. 5, 2018). The U.S. Supreme Court
denied certiorari on May 13, 2019. Taylor v. Dunn, 139 S. Ct. 2016 (2019) (mem.). Finally, for
Eugene Clemons, the Eleventh Circuit affirmed the district court’s denial of federal habeas relief
on July 30, 2020. Clemons v. Comm’r, Ala. Dep’t of Corr., 967 F.3d 1231 (11th Cir. 2020). The
U.S. Supreme Court denied certiorari on June 7, 2021. Clemons v. Dunn, 141 S. Ct. 2722 (2021)
(mem.). These inmates’ appeals all were exhausted before Miller’s appeals, which were exhausted
in October 2021. See Miller v. Dunn, 142 S. Ct. 123 (2021) (mem.).
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he would have brought it up immediately in the first call with his brother. The State
also contends that Miller’s purported reference to “some other inmates” electing
nitrogen hypoxia and having their executions put on hold is evidence that Miller did
not elect and that he is claiming he elected to try to delay his execution. The Court
does not agree. First, on this record, that Miller’s first call with his brother in April
2022 did not mention a method of execution and instead was an emotional discussion
of logistics surrounding Miller’s death does not, in the Court’s view, undermine
Miller’s testimony that he elected nitrogen hypoxia in June 2018. Second, even
assuming the State’s interpretation of the call is correct (and the Court maintains that
the audio is unclear), this is not definitive evidence that Miller did not timely elect.
Indeed, a reference to “some other inmates” would be consistent with Miller’s
narrative that the State has not set execution dates for other inmates who elected
nitrogen hypoxia and the State is treating him differently because it has set his
execution date.
Fifth, according to the State, Miller also lied in his affidavit about giving his
election form to the official who was collecting forms from the other inmates
because Miller later testified that he did not actually see the official and did not see
anyone else turn in the form. Not so. Miller testified that he knew the official was
collecting forms because the official had announced he would return later to collect
the forms. And as noted above, Miller’s testimony demonstrates that much of the
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information he gathered is auditory rather than visual. Given that Miller is confined
to his cell 23 hours a day, it is reasonable for him to believe that prison officials do
what they say they will do. Thus, if an official told Miller, “here’s this form, fill it
out, I’m going to come back later today day and pick it up,” Miller can reasonably
rely on that statement and infer that the official did in fact return to pick it up, because
Miller cannot leave the four walls of his cell. Thus, the Court cannot agree with the
State that Miller lied in his affidavit on this basis.
Sixth, the State argues that Miller is not credible because he says he does not
want to die and recently expressed concerns about being executed by nitrogen
hypoxia, pointing out that there is no protocol and expressing his belief that it would
not be fair to execute him by nitrogen hypoxia until an independent expert evaluates
and approves the protocol.

The State also contends that, when asked at his

deposition if he would agree to allow a correctional officer to fit him with a mask as
a planning precaution for a nitrogen hypoxia execution, Miller refused. According
to the State, Miller’s statements demonstrate that his true goal is to delay his
execution. But an inmate’s decision to elect nitrogen hypoxia over lethal injection
does not preclude the possibility that the inmate would have concerns about a
nitrogen hypoxia execution. This is especially so in this case, given Miller’s
testimony that he elected nitrogen hypoxia because he wanted to avoid needles and
“thought” nitrogen hypoxia meant he would just go to sleep. It simply does not
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follow from Miller’s election of nitrogen hypoxia in June 2018 that he would have
no reservations about whatever protocol the State eventually adopted. In the Court’s
view, Miller’s recent statements expressing concern about being executed by
nitrogen hypoxia have little bearing on the veracity of Miller’s testimony that he
made a timely election in June 2018.
And as for the mask-fitting, the State once again has misrepresented Miller’s
testimony. Counsel for the State asked Miller if fitting a mask to his face was
“something that you would be cooperative with, or is that something that would
upset you?” (Doc. 52-29 at 86.) Miller responded, “It could be something that
would upset me,” explaining that it was “[b]ecause why ain’t nobody else going
through the same thing? Why are people prior to me, who signed like I did, are
people who they didn’t find theirs? As in Jarrod Taylor, . . . Why they are not doing
this and you asking the same question of them? I want to be treated fairly.” (Id. at
87.) In the Court’s view, this exchange does not reflect Miller’s refusal to cooperate
with the ADOC in the execution process broadly or the nitrogen hypoxia protocol
development more specifically. Instead, Miller said he would be upset because no
one else who elected nitrogen hypoxia is being subjected to mask-fitting. Moreover,
the Court agrees with Miller’s counsel that it is a natural human reaction to be upset
about the prospect of being fitted with the means of one’s own execution. Thus, in
the Court’s view, Miller’s statements in response to the query about mask-fitting
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have no bearing on the veracity of his testimony that he made a timely election in
June 2018.
In sum, both in live testimony before the Court and in deposition testimony,
Miller has presented consistent, credible, and uncontroverted direct evidence that he
submitted an election form in the manner he says was announced to him by the
ADOC. His testimony about how forms were distributed and then collected on the
same day is consistent with Captain Emberton’s testimony in an earlier case. Miller
has also presented evidence that the ADOC lacked any standardized protocol or rules
regarding the collection and transmittal of inmates’ completed election forms, which
is circumstantial evidence supporting Miller’s theory that the ADOC lost or
misplaced his form after he turned it in. Miller has also presented evidence that the
ADOC has likely lost or misplaced an inmate’s completed election form on another
occasion, which further circumstantially credits his narrative. On the other hand, the
State does not directly rebut Miller’s sworn, and consistent, testimony. Nor has the
State established a chain of custody for the election forms, which could have called
into doubt the veracity of Miller’s testimony. Rather, the State’s arguments are
based on weak circumstantial evidence (that Miller’s form is not in the State’s files
and Miller’s phone call with his brother), improper inferences (about Miller’s
invocation of the attorney–client privilege), misrepresentations about Miller’s

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testimony, and—at bottom—the State’s subjective belief that Miller did not timely
elect because he has a motive to try to delay his execution.
The Court has seriously considered the possibility that Miller did not in fact
timely elect nitrogen hypoxia but now claims to have done so only to delay his
looming execution. The Court cannot definitively rule out this possibility. But at
this stage, an inmate in Miller’s position is not required “to prove his case once and
for all.” Hamm v. Comm’r, Ala. Dep’t of Corr., No. 18-10473, 2018 WL 2171185,
at *4 (11th Cir. Feb. 13, 2018). The Court has considered and weighed all of the
evidence, including Miller’s own testimony, which was not directly rebutted by the
State with any testimony from an ADOC official, including Captain Emberton,
stating that Miller did not leave a form in the bean hole when the official collected
election forms, nor indirectly rebutted by the State with evidence of a chain of
custody for submitted forms or a standardized procedure followed by ADOC
officials in collecting and transmitting completed election forms to Ms. Parker. The
Court has also assessed Miller’s credibility at this stage in light of the evidence
presented, and in light of the evidence not presented by the State, and it has carefully
considered the State’s arguments about Miller’s credibility separately and together.
Having carefully considered the foregoing, the Court concludes that, on this record
as it currently exists, it is substantially likely that Miller timely elected nitrogen
hypoxia. Further discovery and evidence may result in a different outcome on the
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election issue, but that is a different inquiry for a different day under a different
standard.
B. Substantial Likelihood of Success on Miller’s Legal Claims
Resolving the factual dispute over whether Miller timely elected does not end
the substantial-likelihood-of-success inquiry. The Court must now evaluate the
merits of his legal claims. To obtain a preliminary injunction, a plaintiff “must
demonstrate a substantial likelihood of prevailing on at least one of the causes of
action he has asserted.” Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117,
1134 (11th Cir. 2005).15
1. Equal Protection
A plaintiff may successfully allege a violation of his equal protection rights
as a “class of one” by showing “that [he] has been intentionally treated differently

15

Each Defendant filed a motion to dismiss for failure to state a claim, raising several arguments.
None of their arguments persuade the Court that Miller is not substantially likely to succeed on the
merits of his equal protection and procedural due process claims. For example, Defendant
Marshall’s invocation of prosecutorial immunity is misplaced because the immunity applies only
to claims for money damages, see Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000), and Miller
does not seek money damages from Defendant Marshall (or any Defendant). Additionally,
Defendant Raybon’s argument that he cannot be held liable under a respondeat superior theory is
misplaced because that argument is relevant only to an individual capacity claim for money
damages. See Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Again, Miller does not
seek money damages from Defendant Raybon; rather, Miller is suing Defendant Raybon in his
official capacity because Raybon stands in the shoes of Warden Stewart for purposes of official
capacity liability and because Raybon is Miller’s statutory executioner. See Hafer v. Melo, 502
U.S. 21, 25 (1991) (“Suits against state officials in their official capacity . . . should be treated as
suits against the State. Indeed, when officials sued in this capacity in federal court die or leave
office, their successors automatically assume their roles in the litigation.” (citation omitted)).
Additionally, the Court addresses, and ultimately rejects, Raybon’s and Hamm’s statute of
limitations argument below.
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from others similarly situated and that there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). “[W]here the
challenged governmental decision is simple or one-dimensional—for example,
where the decision involves the application of a single criterion to a single issue—
making out a ‘class of one claim’ is generally easier than in cases where
governmental action is ‘multi-dimensional, involving varied decisionmaking criteria
applied in a series of discretionary decisions made over an extended period of time.’”
Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1307 (11th Cir.
2009) (citation omitted).

When the governmental decision is simple or one-

dimensional, the “similarly situated requirement” may be analyzed “succinctly and
at a high order of abstraction.” Grider v. City of Auburn, 618 F.3d 1240, 1265 (11th
Cir. 2010) (citation omitted). The plaintiff must nevertheless show that he is similar
to the party of comparison in all legally relevant respects. See Griffin Indus., Inc. v.
Irvin, 496 F.3d 1189, 1204–07 (11th Cir. 2007).
Since no fundamental right is at stake here, nor do the parties assert such, the
rational basis test applies to Miller’s equal protection claim. “The rational basis test
asks (1) whether the government has the power or authority to regulate the particular
area in question, and (2) whether there is a rational relationship between the
government’s objective and the means it has chosen to achieve it.” Leib, 558 F.3d
at 1306.
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The parties focus heavily on whether Miller is similarly situated to Jarrod
Taylor. But Miller also makes the broader argument that he is similarly situated to
all inmates who timely elected nitrogen hypoxia, (Doc. 18 at 17, ¶ 94; Doc. 58 at
181), and that there is no rational basis to treat him differently than any inmate who
timely elected, (see Doc. 58 at 22–23). The Court finds that this is the proper inquiry.
The State’s arguments focus on why it withdrew its motion to set Taylor’s
execution but declined to withdraw the motion to set Miller’s execution. But the
question is whether it would violate Miller’s equal protection rights if the State
executed him by lethal injection even though he timely elected nitrogen hypoxia,
while not pursuing execution by lethal injection for other inmates who timely elected
nitrogen hypoxia. It is substantially likely, if not certain, that it would.
All § 15-18-82.1(b) requires for a nitrogen hypoxia election is an inmate’s
writing delivered to his or her warden within the proscribed time period. An inmate
who complies with the statutory requirements is similarly situated in all legally
relevant respects to every other inmate who complies with the statutory
requirements. See Griffin Indus., 496 F.3d at 1204–07; see also Price v. Comm’r,
Ala. Dep’t of Corr., 920 F.3d 1317, 1325 (11th Cir. 2019) (per curiam) (suggesting
that inmates who timely elected nitrogen hypoxia are similarly situated to one
another). Thus, having timely elected nitrogen hypoxia, Miller is similarly situated
to every other inmate who timely elected nitrogen hypoxia. There is no evidence or
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argument that the State has executed by lethal injection any inmate who timely
elected nitrogen hypoxia. The Court can conceive of no rational basis to treat Miller
differently. The State’s belief that Miller has not proven his case to the State’s
satisfaction is irrelevant. The State is not the exclusive arbiter of whether an inmate
has made a proper and timely election. The State does not argue otherwise, and it
agreed that this Court is the proper factfinder to determine whether it is substantially
likely that Miller timely elected.

Thus, what matters here is the Court’s

determination that Miller timely elected in compliance with the statute (or, more
accurately, that it is substantially likely he did). Because there is no rational basis
for the State to execute Miller by lethal injection where he has provided sufficient
evidence at this stage that he timely elected nitrogen hypoxia, Miller is substantially
likely to succeed on his equal protection claim.
2. Procedural Due Process
Although it is sufficient that Miller has demonstrated a substantial likelihood
of success on his equal protection claim, the Court also concludes that he has
demonstrated a substantial likelihood of success on his procedural due process claim.
The Court will first address Raybon’s and Hamm’s arguments that Miller’s
procedural due process claim is barred by the statute of limitations,16 as a

16

Attorney General Marshall did not advance a statute of limitations argument in his motion to
dismiss.
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determination that the claim is time-barred would affect Miller’s ability to
demonstrate entitlement to a preliminary injunction, cf. Henyard v. Sec’y, DOC, 543
F.3d 644, 647 (11th Cir. 2008) (per curiam) (concluding the district court did not err
in determining that the plaintiff’s claims were barred by the statute of limitations and
that thus the plaintiff had not shown a substantial likelihood of success on the
merits). As explained below, the Court concludes that this argument is unavailing
because Miller brought this claim well within the applicable two-year statute of
limitations.
Raybon and Hamm bear the burden to establish the applicability of a statute
of limitations affirmative defense. See Blue Cross & Blue Shield of Ala. v. Weitz,
913 F.2d 1544, 1552 (11th Cir. 1990). A plaintiff is not required to negate a statute
of limitations defense in his complaint. See La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004). “[A] Rule 12(b)(6) dismissal on statute of limitations
grounds is appropriate only if it is ‘apparent from the face of the complaint’ that the
claim is time-barred.” Id. (citation omitted).
The statute of limitations for a § 1983 claim is governed by the personal injury
law of the state in which the cause of action arose. Wallace v. Kato, 549 U.S. 384,
387 (2007). Here, the parties agree that, under Alabama law, the limitations period
is two years. ALA. CODE § 6-2-38(1). The parties also agree that the statute begins
to run, or a claim accrues, when Miller “knew or should have known of his injury
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and its cause.” Carter v. City of Montgomery, 473 F. Supp. 3d 1273, 1307 (M.D.
Ala. 2020) (quoting Burt v. Martin, 193 F. App’x 829, 830 (11th Cir. 2006)); see
also Rozar v. Mullis, 85 F.3d 556, 561–62 (11th Cir. 1996) (holding that a claim
accrues when “the facts which would support a cause of action [were] apparent or
should [have been] apparent to a person with a reasonably prudent regard for his
rights”). The parties disagree, however, as to exactly when Miller “knew or should
have known” that his claim had accrued.
On one hand, Miller asserts that he knew or should have known of his injury
on May 27, 2022—when the State told Miller for the first time that they did not have
his election form and would not honor his nitrogen hypoxia election. On the other
hand, Raybon and Hamm contend that Miller should have known that he was injured
years ago, outside of the statute of limitations, in three ways: (1) Miller should have
known that the State lost his election form because he was not given a notarized copy
of his election form like he requested in 2018; (2) Miller should have known that the
State lost his election form because, as Miller claims, the 2018 form collection
process was “extremely disorganized”; and (3) Miller should have known the State
lost his election form after the proceedings in Alabama Supreme Court on the State’s
motion to set an execution date for Jarrod Taylor.
Raybon’s and Hamm’s arguments miss the mark. Their accrual theories
operate under the same basic logic: Miller should have known that the State had lost
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his election form because of the “inadequacies in the [election form] processes and
procedures.” (Doc. 30 at 10.) But this argument ignores the elements of Miller’s
due process claim. While a procedural due process claim requires a showing of a
“constitutionally-inadequate process,” it first requires a “deprivation of a
constitutionally-protected liberty interest,” that is, an injury. Grayden v. Rhodes,
345 F.3d 1225, 1232 (11th Cir. 2003). And here, Miller had no reason to know that
the State had refused to honor his right to elect nitrogen hypoxia until the moment
the State informed him that it had no record of his election form.17
While the disorganized process could give rise to the third element of a
procedural due process claim (procedural inadequacy), it would not have given rise
to a viable action, as required for the statute to run, because this information does
not make “apparent” to a “reasonably prudent” person that Miller himself had been

17

Raybon and Hamm repeatedly assert that proceedings involving the State’s attempt to set an
execution date for another death row inmate, Jarrod Taylor, put Miller on notice that the
Defendants lost or misplaced Miller’s election form. But those proceedings provided Miller no
such notice. First, Raybon and Hamm cite no authority for the proposition that Miller has a duty
to investigate his own injuries by surveying Alabama Supreme Court proceedings pertaining to
the setting of another death row inmate’s execution. Second, even if Miller had reviewed the
public filings in Taylor’s proceedings—and nothing in the Amended Complaint suggests that he
did—nothing in those public filings affirmatively indicates that the ADOC lost Taylor’s election
form. Third, even if those public filings did establish that the ADOC lost Taylor’s election form
and caused Miller to have concerns about the safety of his election, the outcome of Taylor’s case
likely would alleviate concerns for a reasonable person in Miller’s position. After all, the State
recognized Taylor’s nitrogen hypoxia election and withdrew its motion to set his execution. An
inmate in Miller’s shoes analyzing Taylor’s proceedings reasonably would have presumed the
same treatment would be afforded to him if the State were also unable to locate his election form.
Accordingly, Raybon’s and Hamm’s argument that Taylor’s proceedings put Miller on notice that
he was injured is misguided.
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deprived of his protected interest in electing nitrogen hypoxia, i.e., that Miller
himself had been injured. See Rozar, 85 F.3d at 562. After all, Miller says he turned
in the election form in the manner announced to him, and therefore Miller would
have been “justifiably ignorant” as to whether the State subsequently would be
unable to locate his election form, especially since the State did not notify the
inmates, their attorneys, or anyone else of the outcome or status of their hypoxia
elections. Cf. id. at 560–62 (holding that plaintiffs “should have known” of a
constitutional injury—thereby triggering the statute of limitations—because they
were not “justifiably ignorant” to the injury, where one of the plaintiffs observed the
injury, the injury was published in a local newspaper, the injury was posted at a
courthouse, and a public meeting was held concerning the injury). It defies credulity
for the State to say Miller should have known that he was injured in 2018 on the
basis that Miller should have known that the State was likely to lose or be unable to
locate Miller’s election form, refuse to honor his election, move for his execution,
and deprive Miller of his protected liberty interest.18

18

The essence of Raybon’s and Hamm’s accrual theory boils down to their belief that Miller had
an affirmative duty to ask his attorneys to confirm with the ADOC that Miller’s election form had
not been lost. In other words, Raybon and Hamm request a rule that has a presumption that the
State erroneously lost an election form, even though the form was submitted the way the State’s
agent asked for it to be submitted and the State does not argue that the way Miller submitted the
form is legally defective. The Court will not entertain such a rule that requires inmates to speculate
as to whether they have been injured despite following their custodian’s instructions.
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Raybon and Hamm have failed to meet their burden of demonstrating that the
statute of limitations bars Miller’s claim. At this stage, the Court finds that Miller’s
procedural due process claim accrued on May 27, 2022, when a reasonable inmate
in Miller’s shoes would have known that he was injured and that he had a viable
cause of action. And because Miller filed suit four months after his claim accrued,
Miller’s claim is within the applicable two-year statute of limitations and is not timebarred. The State provides no persuasive argument otherwise.
Moving to the claim itself, “[p]rocedural due process imposes constraints on
governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests
within the meaning of” the Fourteenth Amendment’s Due Process Clause. Mathews
v. Eldridge, 424 U.S. 319, 332 (1976). A successful procedural due process claim
requires “proof of three elements: (1) the deprivation of a constitutionally-protected
liberty or property interest; (2) state action; and (3) constitutionally-inadequate
process.” Grayden, 345 F.3d at 1232.
Miller contends that his protected liberty interest is his statutorily-permitted
choice to be executed by nitrogen hypoxia. The Court concludes that this is a
protected liberty interest, although the State’s counsel at the evidentiary hearing
would not concede this issue. The Court also notes that, while Miller’s cause of
action accrued in May 2022 when he first learned the State would not honor his
nitrogen hypoxia election, the deprivation of this interest is state action and is not
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complete unless and until the State executes Miller by lethal injection in
contravention of his nitrogen hypoxia election.
Where the State can feasibly provide a predeprivation hearing before
depriving a person of liberty, it generally must do so regardless of the adequacy of a
postdeprivation remedy. See Zinermon v. Burch, 494 U.S. 113, 132 (1990); Barr v.
Johnson, 777 F. App’x 298, 301 (11th Cir. 2019) (“Generally speaking, procedural
due process requires that the state give the individual notice and an opportunity to
be heard before a deprivation.” (emphasis added)). “Conversely, in situations where
a predeprivation hearing is unduly burdensome in proportion to the liberty interest
at stake, or where the State is truly unable to anticipate and prevent a random
deprivation of a liberty interest, postdeprivation remedies might satisfy due process.”
Zinermon, 494 U.S. at 132 (citation omitted). Thus, predeprivation process is the
general rule. Turning to adequacy, courts consider three factors in determining
whether the process provided is adequate:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal administrative
burdens that the additional or substitute procedural requirement would
entail.
Mathews, 424 U.S. at 335; accord Worthy v. City of Phenix City, 930 F.3d 1206,
1223 (11th Cir. 2019).
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Executing Miller by lethal injection when he has timely elected nitrogen
hypoxia is substantially likely to violate his procedural due process rights.
Assuming without deciding that predeprivation process would be unduly
burdensome or not feasible, no adequate postdeprivation remedy exists.

An

execution is final; there are no do-overs or give-backs. Thus, an order directing the
State to posthumously honor Miller’s election would be utterly inadequate.
Compensation to Miller’s estate also would not be an adequate remedy, as the harm
is not monetary in nature.
To the extent it is relevant what could have been done up to this point to
prevent the deprivation of Miller’s liberty interest, the Court finds it substantially
likely that Miller was entitled to predeprivation process and that the predeprivation
process afforded here, which is virtually none, is constitutionally inadequate. The
private interest at stake is great—a person’s choice in the way he will die at the
State’s hands. Given the procedures used, the risk of erroneous deprivations is high.
There was no established process for collecting election forms. There is no chain of
custody establishing how forms submitted in any fashion made their way to Ms.
Parker for logging and retention. Other than looking in two places (the nitrogen
hypoxia file and the emails), the State has presented no evidence of any investigation
into what might have happened to Miller’s form. It has not even presented any
evidence that it queried Captain Emberton or any other pertinent correctional
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officers about Miller and his claimed submission of an election form. Additional
safeguards would be of obvious value in ensuring that all properly submitted
nitrogen hypoxia election forms are retained, that all properly submitted elections
are honored, and that no inmate who properly elected nitrogen hypoxia is executed
by lethal injection. The State does not argue that additional safeguards would be
unduly burdensome or costly, nor does the State argue that it is not feasible to
provide predeprivation process.19 Rather, the State argues that the statute imposes
no duty on the State to do anything.20 But the Alabama statute does not dictate the
constitutional due process floor.

Therefore, the Court finds that Miller is

substantially likely to succeed on the merits of his procedural due process claim.21
Because Miller must show a substantial likelihood of success on only one of
his claims for purposes of his preliminary injunction motion, the Court pretermits
any discussion of his Eighth Amendment claim.

19

The State does argue that the negligent loss of an election form does not give rise to an actionable
due process claim because predeprivation process is not feasible in those circumstances. But the
deprivation Miller complains of is about more than the negligent loss of a form. It is about the
deprivation of his right to choose a nitrogen hypoxia execution and the State’s plans to carry out
his execution by lethal injection in contravention of his choice.

20

The Court disagrees that the statute imposes no duty. The statute at least imposes a duty upon
the State to accept an inmate’s written election form that is delivered to his or her warden.
21

To the extent that predeprivation process was not feasible or would be unduly burdensome, or
if the predeprivation process afforded here was constitutionally adequate, the Court agrees with
the State that Miller has an adequate postdeprivation remedy because he could seek a writ of
mandamus in a state circuit court. But, for the reasons explained earlier, the Court emphasizes
that no adequate postdeprivation remedy exists to cure the deprivation of Miller’s liberty interest
once the deprivation is complete: when an execution by lethal injection is carried out.
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C. Irreparable Injury
Miller will likely suffer irreparable injury if an injunction does not issue
because he will be deprived of the ability to die by the method he chose and instead
will be forced to die by a method he sought to avoid and which he asserts will be
painful. “An injury is ‘irreparable’ only if it cannot be undone through monetary
remedies.” City of Jacksonville, 896 F.2d at 1285. Money would not remedy
Miller’s injury because his injury is not monetary. Rather, it is the loss of his “final
dignity”—to choose how he will die. See Smith v. Comm’r, Ala. Dep’t of Corr., No.
21-13581, 2021 WL 4916001, at *5 (11th Cir. Oct. 21, 2021) (Pryor, J., concurring);
cf. Ramirez v. Collier, 142 S. Ct. 1264, 1282 (2022) (concluding that inmate likely
faced irreparable injury in the absence of an injunction allowing his spiritual advisor
to audibly pray and lay hands on him during his execution; explaining that
“[c]ompensation paid to [the inmate’s] estate would not remedy this harm, which is
spiritual rather than pecuniary”). And according to his unrebutted testimony, Miller
dislikes needles and has had bad experiences with them because it has been difficult
to find a vein. The State does not contest that executing Miller by lethal injection as
opposed to nitrogen hypoxia would cause him irreparable injury. Accordingly, the
Court finds that the likelihood of irreparable injury weighs in favor of injunctive
relief.

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D. Balance of Harms
The balance of harms also weighs in Miller’s favor. Miller does not seek an
“open-ended stay of execution”; rather, he requests a tailored injunction effectively
requiring the State to execute him by nitrogen hypoxia. Cf. Ramirez, 142 S. Ct. at
1282 (reaching a similar conclusion in a case involving an inmate’s request to engage
in religious exercise with a spiritual advisor during the execution). Also, the State
and the public have an interest in conducting executions in a manner that does not
violate an inmate’s constitutional rights. See Ray v. Comm’r, Ala. Dep’t of Corr.,
915 F.3d 689, 702 (11th Cir. 2019). The State and the public also have an interest
in the State following its own law generally and in the State honoring an inmate’s
valid election of nitrogen hypoxia more specifically—an election afforded to
inmates by the Alabama Legislature.
The State represented through Commissioner Hamm’s recent affidavit that the
ADOC is not prepared to execute Miller by nitrogen hypoxia on September 22, 2022,
although the State’s response to Miller’s Motion for Preliminary Injunction and
counsel’s statements during the evidentiary hearing suggested the State could
conduct the execution by nitrogen hypoxia. Thus, the Court recognizes the practical
reality that granting the relief Miller seeks will likely have the incidental effect of
delaying Miller’s execution. But that delay is attributable to the State, not Miller,
and it appears to be a short delay. After all, the State allowed inmates to elect
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nitrogen hypoxia in June 2018 and has since slowly moved to create a method and
protocol of performing executions by nitrogen hypoxia, and the State just recently
appears to be ready to announce its plan to begin conducting executions by nitrogen
hypoxia. Thus, as soon as the State announces is readiness, the State can move
forward with Miller’s execution by his chosen method.
The Court concludes that any delay resulting from granting the relief sought
here will minimally harm the State and the public, and that any such harm is greatly
outweighed by the harm to Miller if an injunction does not issue. To be sure, “[b]oth
the State and the victims of crime have an important interest in the timely
enforcement of a sentence.” Hill v. McDonough, 547 U.S. 573, 584 (2006). But the
State has not argued that the harm to the public interest counsels against injunctive
relief here. The State “will get its man in the end,” see Gomez v. U.S. Dist. Ct. for
N. Dist. of Cal., 966 F.2d 460, 462 (9th Cir. 1992) (Noonan, J., dissenting), and any
delay in carrying out Miller’s execution is attributable to the State’s continued
inability to perform executions by nitrogen hypoxia. That the State is not yet
prepared to execute anyone by nitrogen hypoxia does not mean it will harm the State
or the public to honor Miller’s timely election of nitrogen hypoxia. By contrast, if
an injunction does not issue, Miller will be irrevocably deprived of his choice in how
he will die—a choice the Alabama Legislature bestowed upon him. Additionally,
Miller will be in no different position than the other death row inmates who elected
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nitrogen hypoxia, including inmates whose appeals were exhausted prior to Miller’s
appeals (e.g., Waldrop, Taylor, and Clemons).
In sum, the Court concludes that any potential harm to the State or the public
in granting Miller his requested relief is greatly outweighed by the harm that will
likely befall Miller in the absence of such relief.
E. Delay
The Court must also address the State’s argument that Miller is not entitled to
a preliminary injunction because he intentionally delayed in bringing this lawsuit.
“A court considering a stay [of execution] must . . . apply ‘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.’”
Hill, 547 U.S. at 584 (citation omitted). In support of its argument, the State cites
emails or instant messages between Miller and a pen-pal where, according to the
State, Miller told the pen-pal that his lawyers said he has to “wait” to file his legal
challenge.
A closer examination of the messages does not support the State’s contention.
In the first message, Miller states in relevant part: “Lawyers saying same thing got
to wait.” (Doc. 33-1.) In response, Miller’s pen-pal writes: “Your attorney say we
have to wait…?” (Doc. 33-2.) Miller responds: “No I have not heard from my layers
[sic] after a I [sic] called last.” (Doc. 33-3.) Importantly, the State did not ask Miller
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about these messages either in his deposition or at the evidentiary hearing, despite
the State’s procurement of them prior to both events.
All the messages indicate is that Miller’s lawyers said they “got to wait.”
They do not reference nitrogen hypoxia or lethal injection. These messages simply
do not support the conclusion or inference that Miller or his lawyers were waiting to
file this lawsuit. Even if they did, that would not compel the conclusion or inference
that the “wait” was undertaken in order to intentionally delay or prejudice the State
or the Court. Thus, the messages do not support the State’s position that Miller
intentionally delayed bringing this lawsuit.
The State also points to Miller’s testimony that he thinks he should not be
executed until after the inmates who elected “before” him and after an independent
expert approves Alabama’s nitrogen hypoxia system. According to the State, this
evidence shows that Miller’s true goal is to delay his execution, and that the timing
of his lawsuit sought to help achieve that goal. First, as explained above, Miller did
not testify that he thinks he should not be executed until after the inmates who elected
“before” him. Moreover, the Court finds Miller’s statements to be weak evidence
that he intentionally delayed filing this lawsuit.

And his statements are not

dispositive because the prayer for relief in his Amended Complaint, along with his
Motion for Preliminary Injunction, expressly request that his hypoxia election be
honored and that the State be enjoined from executing him by lethal injection.
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Considering all of the circumstances, the Court concludes that Miller did not
inexcusably delay filing this lawsuit such that it militates against granting his
requested relief. As an initial matter, Miller does not seek a stay of execution; rather,
he seeks a tailored injunction effectively requiring the State to execute him by
nitrogen hypoxia. Turning to the circumstances preceding the filing of this lawsuit,
Miller first learned the State could not locate a record of his election form and did
not intend to honor his election on May 27, 2022. Thereafter, Miller asked the
Alabama Supreme Court to remand the matter to an Alabama trial court for a hearing
to resolve the factual dispute. On July 18, 2022, the Alabama Supreme Court entered
an order setting Miller’s execution for September 22, 2022. Miller filed this lawsuit
thirty-four days later and four weeks before his scheduled execution. Miller argues
that it would have offended traditional principles of federalism and comity if he had
run to federal court while the matter was being litigated before the Alabama Supreme
Court. The State does not argue otherwise.
The Court agrees with Miller and concludes that “it was not unreasonable for
[him] to attempt to exhaust his state remedies by completing litigation on the State’s
motion to set his execution date before filing his section 1983 lawsuit here.” See
Hamm, 2018 WL 2171185, at *2.22 Additionally, Miller argues that after his
execution date was set, his lawyers needed time to research and evaluate his

22

While the Court recognizes that Hamm is nonbinding, the Court finds its analysis persuasive.
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constitutional claims, perform due diligence, and secure local counsel. The State
does not argue that his lawyers took an unreasonable amount of time to perform
those tasks.

Under these circumstances, the Court finds that Miller did not

unreasonably delay bringing this lawsuit.
Again, Miller filed this lawsuit four weeks before his scheduled execution. In
the interim, the Court was able to hold an evidentiary hearing during which Miller
testified and was subject to cross-examination. Additionally, the State was able to
depose Miller before the hearing. The State does not argue that it was prejudiced by
the timing of the briefing on the preliminary injunction motion or the evidentiary
hearing. The State does not argue, for example, that the timing rendered the State
unable to secure evidence it wished to introduce or the attendance of witnesses to
testify at the hearing.
Additionally, and most importantly, Miller has met his burden of showing a
substantial likelihood that he timely elected and that he can succeed on his claims,
that he likely faces irreparable injury, and that the balance of harms weighs in his
favor. Consequently, any delay in bringing this lawsuit does not militate against the
entry of injunctive relief. Cf. Smith v. Comm’r, Ala. Dep’t of Corr., 844 F. App’x
286, 294 (11th Cir. 2021) (in case where an inmate sought to have his spiritual
advisor in the room during his execution, explaining that a delay is not dispositive
and concluding that “any delay [was] not so weighty” because the inmate was likely
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to succeed on his legal claim and, without an injunction, the ADOC would likely
execute the inmate without his spiritual advisor present as he passes, and that there
is “no do-over in this scenario”). And Miller filing suit earlier would not change the
reality that the State is not ready to execute anyone by nitrogen hypoxia.
Miller has shown, based on the evidence presented, a substantial likelihood of
success on the merits of his Fourteenth Amendment claims, a likelihood of
irreparable injury without an injunction, and that the balance of harms weighs in his
favor. Therefore, Miller has established his entitlement to a preliminary injunction
that prevents the State from executing him by any method other than nitrogen
hypoxia.
V. CONCLUSION
For the foregoing reasons, it is ORDERED as follows:
1. The Motion for Preliminary Injunction (Doc. 28) is GRANTED; and
2. The Defendants and their agents are hereby ENJOINED from executing Alan
Eugene Miller by any method other than nitrogen hypoxia until further order
from this Court.
DONE, on this the 19th day of September, 2022.
/s/ R. Austin Huffaker, Jr.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE

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