Hamm v. Dunn et al

Filing 30

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 2/6/18. (SAC )

FILED
2018 Feb-06 AM 10:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DOYLE LEE HAMM,

]
]
Plaintiff,
]
]
v.
]
]
JEFFERSON S DUNN, COMMISSIONER,
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ALABAMA DEPARTMENT OF
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CORRECTIONS;
]
CYNTHIA STEWART, WARDEN,
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HOLMAN CORRECTIONAL FACILITY;
]
LEON BOLLING, III, WARDEN,
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DONALDSON CORRECTIONAL FACILITY; ]
OTHER UNKNOWN EMPLOYEES AND
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AGENTS, ALABAMA DEPARTMENT OF
]
CORRECTIONS
]
]
Defendants.
]

2:17-cv-02083-KOB

MEMORANDUM OPINION
Doyle Hamm challenges the constitutionality of Alabama’s method of execution, not
generally, but as applied to him. (Doc. 15 at 1–2). As the Supreme Court of the United States
has repeatedly said, “because it is settled that capital punishment is constitutional, it necessarily
follows that there must be a constitutional means of carrying it out.” Glossip v. Gross, 135 S. Ct.
2726, 2732 (2015) (quotation marks omitted). But the Eighth Amendment forbids cruel and
unusual punishment, creating tension between imposing a constitutional death sentence and
carrying out the death sentence in a constitutional manner.
In this country, the chosen method of execution has evolved as social mores have
changed. See Baze v. Rees, 553 U.S. 35, 40–41 (2008) (plurality opinion) (“As is true with
respect to each of [the thirty-five States that impose capital punishment] and the Federal
Government, Kentucky has altered its method of execution over time to more humane means of

carrying out the sentence. That progress has led to the use of lethal injection by every
jurisdiction that imposes the death penalty.”). Today, death penalty advocates view lethal
injection, the most prevalent method of capital punishment, as a more humane means of
execution than its predecessors. See id.
Mr. Hamm contends that, as applied to him, Alabama’s method of execution—
intravenous lethal injection—crosses the line from a constitutional method of fulfilling his death
sentence to one that would cause undue and exceptional pain and suffering. He asserts that his
current medical condition, caused by years of intravenous drug use, hepatitis C, and untreated
lymphoma, renders his veins severely compromised; he contends that he does not have
peripheral veins suitable to handle the size of intravenous catheter required to properly
administer the lethal drugs. If his current medical condition includes compromised peripheral
veins, lymphoma untreated for three years, and lymphadenopathy, as he and his medical experts
believe to be true, attempts to insert the intravenous catheter would subject him to unlimited and
repeated needle sticks; the injection of fluid could “blow out” his veins with infiltration of drugs
into the surrounding tissue; and efforts to place a central line could be hindered by enlarged
lymph nodes creating a higher risk of puncturing a central artery—all resulting in severe and
unnecessary pain.
To avoid such a gruesome scenario, Mr. Hamm suggests an alternative method of lethal
injection: an “oral injection” of death-causing drug or drugs. He seeks not a total injunction
prohibiting his execution, but an injunction of execution by intravenous injection.
Defendants, who control Mr. Hamm’s access to medical treatment and evaluation, argue
that Mr. Hamm has not presented any medical proof that his condition has deteriorated as he

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asserts. Further, they argue that he has not proven that his proposed alternative method of
execution is appropriate or available. As a result, they seek summary judgment.
Too many unanswered questions in the current record preclude a determination of the
issues before the court. The heart of this case centers on Mr. Hamm’s current medical status,
particularly the condition of his peripheral veins, lymphoma, and potential lymphadenopathy.
Because Defendants control his access to medical care, Mr. Hamm cannot be faulted for being
unable to present a definitive evaluation to the court. Without knowledge of his current medical
condition, the court cannot answer the many questions raised by Mr. Hamm’s request for an
injunction or by Defendants’ motion for summary judgment.
The looming February 22, 2018, execution date leaves insufficient time to resolve these
unknowns. But Mr. Hamm has provided enough evidence to create genuine issues of material
fact about his as-applied claim. As a result, based on the record as it currently exists, Mr. Hamm
has shown a substantial likelihood of success on the merits, and the court finds that the execution
date must be stayed pending an independent medical examination of Mr. Hamm.
After allowing testimony and argument at a January 31, 2018 hearing, the court
announced its decisions: (1) to deny summary judgment as to Defendants’ timeliness challenge
of Mr. Hamm’s as-applied claim because genuine issues of material fact exist about when his
cause of action accrued; (2) to deny Defendants’ motion for summary judgment as to the merits
of Mr. Hamm’s as-applied claim; (3) to deny as premature Defendants’ motion for summary
judgment as to the merits of Mr. Hamm’s other Eighth Amendment claim; and (4) to grant a
temporary and limited stay of execution. The court now memorializes those rulings in a written
opinion and order.

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First, the court WILL DENY Defendants’ motion for summary judgment as to the
timeliness of Mr. Hamm’s as-applied claim. The court finds that genuine issues of material fact
exist about whether and when Mr. Hamm’s medical condition worsened to a degree that gave
rise to his as-applied challenge to Alabama’s method of execution, triggering Alabama’s twoyear statute of limitations. The court also finds that the equitable doctrine of laches does not bar
Mr. Hamm’s complaint because he reasonably sought relief in the Alabama Supreme Court
before filing his federal lawsuit.
Second, the court WILL DENY Defendants’ motion for summary judgment as to the
merits of Mr. Hamm’s as-applied claim because he has created genuine issues of material fact
about whether Alabama’s method of execution is sure or very likely to cause him needless
suffering and whether a feasible, readily implemented alternative method of execution exists that
would significantly reduce a substantial risk of severe pain.
Third, the court WILL DENY AS PREMATURE Defendants’ motion for summary
judgment as to the merits of Mr. Hamm’s other Eighth Amendment claim because the parties
have not yet had an opportunity to engage in discovery about that claim.
Fourth, the court RESERVES RULING on Mr. Hamm’s request for a preliminary
injunction enjoining Defendants from executing him by intravenous injection, because the record
is too sparse for the court to decide whether, as applied to Mr. Hamm, execution by intravenous
injection would violate his right to be free from cruel and unusual punishment. But the court
WILL STAY the execution for the purpose of obtaining an independent medical examination
and opinion concerning the current state of Mr. Hamm’s lymphoma, the number and quality of
peripheral venous access, and whether any lymphadenopathy would affect efforts to obtain

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central line access. The results of that examination will determine whether the stay should be
extended for discovery on other issues raised by Mr. Hamm’s amended complaint.
I.

PROCEDURAL HISTORY

This matter is before the court on Plaintiff’s request for a preliminary injunction (doc. 15 at
44) and Defendants’ renewed motion for summary judgment (doc. 16).
In 1987, Mr. Hamm was convicted in Alabama of robbery-murder and sentenced to
death. See Hamm v. Comm’r, Ala. Dep’t of Corr., 620 F. App’x 752 (11th Cir. 2015). In 1990,
the Alabama Supreme Court affirmed his conviction and sentence, Ex parte Hamm, 564 So. 2d
469 (Ala. 1990), and the United States Supreme Court denied certiorari. Hamm v. Alabama, 498
U.S. 1008 (1990). After exhausting his state collateral attacks in 2005, Mr. Hamm sought
federal habeas relief. Hamm, 620 F. App’x at 756–58. In 2013, this court denied him habeas
relief, and in 2015, the Eleventh Circuit affirmed. Id. at 758–59. On October 3, 2016, the
United States Supreme Court denied certiorari. Hamm v. Allen, 137 S. Ct. 39 (2016).
On June 23, 2017, the State moved the Alabama Supreme Court to set Mr. Hamm’s
execution date. (Doc. 12-1). On August 8, 2017, on the Alabama Supreme Court’s order,
Mr. Hamm filed an answer requesting that the court allow Dr. Mark Heath to examine
Mr. Hamm before deciding the State’s motion to set an execution date. (Doc. 12-2). Dr. Heath
completed that examination on September 23, 2017, and on December 13, 2017, the Alabama
Supreme Court entered an order setting Mr. Hamm’s execution for February 22, 2018. (Doc. 151 at 2; Doc. 14-17). On the same day that the Alabama Supreme Court entered that order—
December 13, 2017—Mr. Hamm filed his initial § 1983 complaint. (Doc. 1).
Because Mr. Hamm’s complaint contained a request for preliminary injunctive relief, the
court immediately set a hearing. (Doc. 3). Before that hearing, Defendants filed a motion to

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dismiss or, in the alternative, for summary judgment on Mr. Hamm’s complaint. (Doc. 12). The
court construed the entire motion as one for summary judgment and notified Mr. Hamm of the
need to submit evidence in opposition to that motion. (Doc. 13). Mr. Hamm filed a response
and an amended complaint, which reiterated his as-applied challenge and raised an Eighth
Amendment challenge to his treatment during his time on death row. (Doc. 15). Defendants
renewed their motion for summary judgment, and the parties completed briefing and the
submission of evidence on an expedited schedule. (Docs. 16, 17).
II.

BACKGROUND FACTS
1. Medical Terminology
Before discussing the disputed and undisputed facts, the court must set out some medical

terms. Under Alabama’s lethal injection protocol, lethal injection is performed by “peripheral
venous access” or, if peripheral venous access is not possible, by “central line placement.”
Peripheral venous access requires insertion of a catheter into one of the peripheral veins in the
arms, hands, legs, or feet. Central line placement is insertion of a catheter into the jugular vein in
the neck, the subclavian vein near the clavicle, or the femoral vein in the groin. According to
Dr. Heath, the anesthesiologist who testified on Mr. Hamm’s behalf, to obtain a central line, the
practitioner must apply local anesthesia; insert a small needle into the vein; thread a wire through
the needle into the vein; withdraw the needle while leaving the wire in place; cut a small
opening, large enough to allow the catheter to enter the body, in the patient’s flesh near the entry
place for the wire; thread the catheter along the wire and into the vein; withdraw the wire; and
suture the skin closed over the catheter. In the absence of an emergency, the practitioner should
use an ultrasound to monitor the placement of the needle, the wire, and the catheter.

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Another set of important medical terms is lymphoma and lymphadenopathy. Lymphoma
is a blood cancer, and lymphadenopathy is enlargement of lymph nodes. A number of things can
cause lymphadenopathy, including lymphoma and “less common illnesses.” Lymphadenopathy,
Taber’s Medical Dictionary Online, https://www.tabers.com/tabersonline/view/TabersDictionary/768963/all/lymphadenopathy?q=lymphadenopathy; (Doc. 15-1 at 4). Dr. Heath
attests that lymphoma is a progressive disease, meaning that a past diagnosis of lymphoma can
indicate “significant involvement and enlargement of lymph nodes in other areas of
[Mr. Hamm’s] body, including his neck, chest, and groin.” (Doc. 15-1 at 4). According to
Dr. Heath’s testimony, lymphadenopathy can greatly complicate central line access because the
largest clusters of lymph nodes are located around the jugular, femoral, and subclavian veins.
Swelling of those lymph nodes can distort the tissues surrounding the veins, making accessing
those veins more difficult.
2. Alabama’s Lethal Injection Protocol
Alabama’s confidential, sealed lethal injection protocol provides that, as soon as possible
after arrival at Holman Correctional Facility, where all Alabama executions occur, a physician
will make an assessment of the inmate’s vein structure. An IV team will also view the inmate’s
veins before the execution. Aside from non-medical staff, two trained medical professionals,
usually Emergency Medical Technicians (“EMTs”), and, as needed, one physician, are part of
the IV team.
On the day of the execution, two IV lines will be placed in the inmate’s veins. If the IV
team cannot access peripheral veins, medical personnel will use a central line to obtain
intravenous access. After two team members check the IV lines, one leaves the execution
chamber and gives the Warden a signal to proceed; one team member remains in the chamber at

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the inmate’s left side. The Warden administers the lethal injection solution from another room.
The solution consists of midazolam hydrochloride, two other drugs, and saline, administered
sequentially.
The lethal injection protocol describes the process by which the remaining IV team
member—who is not one of the trained medical professionals—can check whether the inmate is
conscious after the Warden has started administering the midazolam hydrochloride. But the
protocol does not describe how long the IV team may attempt to obtain peripheral access, how
many times the team may attempt peripheral venous access, how the team determines if
peripheral access is unobtainable, or what sort of medical equipment or medical specialist is
available in the event the team must attempt to obtain a central line.
3. Mr. Hamm’s Medical History
No one disputes that Mr. Hamm has a long and complicated medical history, which
includes intravenous drug use, hepatitis C, and a 2014 diagnosis of B-cell lymphoma with a
tumor behind Mr. Hamm’s left eye. And no one disputes that Mr. Hamm’s history of
intravenous drug use complicates the accessibility of his peripheral veins. Instead, the essential
factual disputes in this case revolve around (1) whether, despite the undisputed inaccessibility of
many peripheral veins, Mr. Hamm still has enough good quality peripheral veins for the State to
execute him using the procedures described in its confidential lethal injection protocol; (2) when,
if ever, Mr. Hamm’s lymphoma went into remission; (3) whether Mr. Hamm is currently
experiencing lymphadenopathy; and (4) when, if at all, the condition of Mr. Hamm’s veins
worsened to an extent to give rise to his as-applied challenge.
In April 2014, a doctor conducted a CT scan of Mr. Hamm’s abdomen and found “[n]o
pathologically enlarged lymph nodes.” (Doc. 14-4 at 18). But a May 2014 report from another

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doctor reported “numerous abnormal lymph nodes” in Mr. Hamm’s chest. (Doc. 14-3 at 6). The
physician noted, however, that “[t]here [were] no palpable nodes in the cervical, supraclavicular
[above the clavicle], axillary [armpit], or inguinal [groin] areas.” (Id. at 7). The court notes that
a lack of palpable lymph nodes does not prove a lack of lymphadenopathy; Dr. Heath testified
that lymphadenopathy can occur internally in areas that a physician would not be able to feel by
palpation.
Although physicians noted potential lymph node issues in those 2014 reports, Mr. Hamm
never received any further medical examinations or treatment relating to those issues. (Doc. 191 at 1). And according to Dr. Charles Blanke, an oncologist who testified on Mr. Hamm’s
behalf, “[b]ased on the medical consultations done to date, it is impossible to state with any
degree of certainty whether or not [Mr. Hamm] has active lymphoma overall.” (Id. at 2).
Mr. Hamm, in an affidavit, stated that since March or April 2017, nurses at Donaldson
Correctional Facility had been able to draw blood only by using a small butterfly needle on a
vein in his right hand. (Doc. 14-6 at 1). He attests that they “have had problems drawing blood
from there,” but it is the only vein from which they have had any success drawing blood. (Id. at
1–2). He states that in October and November 2017, nurses had unsuccessfully tried to draw
blood from his hands, arms, and legs, “each time pricking [him] about 4 or 6 times.” (Id. at 2).
By contrast, nurses from Donaldson attested that they were able to draw blood on October 3,
2017, on the second attempt; on November 7, 2017, on the third attempt; on November 14, 2017,
on the first attempt; and on December 18, 2017, on the first attempt. (Doc. 12-6 at 2; Doc. 12-7
at 2). Nurses were unable to draw blood on October 31, 2017. (Doc. 12-6 at 2). Dr. Heath
explains that drawing blood with a small butterfly needle is easier than obtaining intravenous
access with a catheter, as a catheter is larger than a butterfly needle. (Doc. 14-5 at 2–3).

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Difficulties obtaining access with a butterfly needle can indicate even more difficulty obtaining
access with a catheter. (Id.).
On March 4, 2017, around the same time that Mr. Hamm noticed nurses having difficulty
drawing blood, he also submitted a sick call request stating “need to see the doctor. I have lumps
in my chest . . . .” (Doc. 14-4 at 12). On March 5, 2017, a nurse noted four “knots” on
Mr. Hamm’s chest near his clavicle, armpits, and above his navel. (Id. at 11). Dr. Roy Roddam,
a prison physician, filled out a “progress note” on March 7, 2017, stating that Mr. Hamm was
complaining of “mildly tender” knots on his chest. (Id. at 10). The handwriting is difficult to
read, but appears to say that Mr. Hamm had “subcutaneous nodules” below the right clavicle and
chest, among other areas. (Id.). Dr. Roddam wrote: “These feel like lymph nodes but could be
[illegible] as their location is against lymphadenopathy.” (Id.). Dr. Roddam noted the need for
an X-ray and wrote “may need biopsy if continues to enlarge.” (Id.). The record before the
court on the motion for summary judgment contains no information about any X-ray or followup.
Dr. Heath examined Mr. Hamm on September 23, 2017. (Doc. 15-1). The Donaldson
Correctional Facility staff would not permit him to bring in his medical equipment, but he reports
that “Mr. Hamm has extremely poor peripheral venous access.” (Id. at 3). He states that
Mr. Hamm has no usable peripheral veins on his left arm and hand or either of his legs or feet.
(Id.). On his right hand, he has one “small, tortuous vein . . . that is potentially accessible with a
butterfly needle.” (Id.). Dr. Heath could not evaluate the accessibility of Mr. Hamm’s jugular,
supraclavial, or femoral vein because he lacked medical equipment. (Id. at 4).
Prison physician Dr. Roddam attests that he conducted a medical examination of
Mr. Hamm on January 2, 2018, and found “no evidence of lymphadenopathy in the cervical,

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supraclavical, or axillary areas of Mr. Hamm’s body.” (Doc. 12-4 at 2). But Dr. Roddam’s
affidavit does not state whether he conducted any imaging tests, or merely palpated those areas
of Mr. Hamm’s body. Dr. Roddam also states that, in his opinion, “Mr. Hamm has two
superficial veins in his right wrist that would be available for venous access.” (Id.). Finally, and
in contrast to almost every other medical professional who has examined Mr. Hamm, prison
nurse Dennis Butler attests that Mr. Hamm has numerous peripheral veins suitable for peripheral
intravenous access with a catheter. (Doc. 12-5 at 2).
4. Proposed Alternative Method of Execution
Mr. Hamm proposes, as an alternative method of execution, “oral injection” of either:
(1) 10 grams of secobarbital; or (2) “DDMP II,” which is composed of 1 gram of diazepam, 50
milligrams of digoxin, 15 grams of morphine sulfate, and 2 grams of propranolol. (Doc. 15 at
23). The proposed alternative procedure follows the procedure used under Oregon’s Death with
Dignity Act. Dr. Blanke, who specializes in end-of-life care and medical-aid-in-dying, testified
at the evidentiary hearing that each of these drugs is common and readily available for
prescription in the United States.
Dr. Blanke described a method of administering the proposed alternative drugs: a
nasogastric tube, which is a thin tube placed up the nasal cavity and down into the stomach. He
testified that the drug or drug combination would be placed into a syringe, which would then be
inserted into the end of the nasogastric tube. The person administering the drugs would
compress the plunger of the syringe, pushing the fluid through the tube and directly into the
stomach; i.e., the drugs would be injected into the person through the nasogastric tube. He
testified that patients lose consciousness within five minutes and die within twenty-five minutes.

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III.

DISCUSSION
The court has before it Mr. Hamm’s request for preliminary injunctive relief enjoining

Defendants from executing him using intravenous injection. (Doc. 15 at 44). The court also has
before it Defendants’ motion for summary judgment on Mr. Hamm’s amended complaint. (Doc.
16). The court will address Defendants’ motion for summary judgment first, followed by
Mr. Hamm’s request for injunctive relief. Finally, the court will discuss the need for a brief stay
of execution, even though Mr. Hamm has not requested one.
1. Motion for Summary Judgment
Summary judgment allows a trial court to decide cases when no genuine issues of
material fact are present and the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). When a district court reviews a motion for summary judgment it must
determine two things: (1) whether any genuine issues of material fact exist; and if not,
(2) whether the moving party is entitled to judgment as a matter of law. Id. In deciding a motion
for summary judgment, the court “draw[s] all inferences and review[s] all evidence in the light
most favorable to the non-moving party.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d
1316, 1318 (11th Cir. 2012) (quotation marks omitted).
Mr. Hamm raises two claims in his amended complaint. (Doc. 15 at 21, 30). Defendants
move for summary judgment, contending that the statute of limitations and the equitable doctrine
of laches bar his amended complaint, and that Mr. Hamm has failed to create a genuine issue of
material fact about a substantial risk of serious harm to him or about a known and available
alternative method of execution. (Doc. 16; Doc. 12 at 26–35; Doc. 18 at 19–30).
The court notes that, because Mr. Hamm’s execution is scheduled for February 22, 2018,
it expedited briefing and submission of evidence. Neither party has had an opportunity to

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conduct discovery. The court finds that, based on the record that currently exists, genuine issues
of material fact exist about whether Mr. Hamm’s amended complaint is timely filed and whether
Alabama’s method of execution is unconstitutional as applied to him. But the court notes that
once Mr. Hamm has had an independent medical examination and/or once the parties have had
an opportunity to conduct discovery, evidence may negate the genuine disputes of material fact
that currently exist.
a.

Statute of Limitations

Defendants contend that, under binding Eleventh Circuit precedent, Alabama’s two-year
statute of limitations bars Mr. Hamm’s complaint. (Doc. 12 at 20). They contend that his claim
accrued no later than July 2004, two years after Alabama adopted its current execution protocol.
(Id. at 20–22). And they contend that Mr. Hamm’s unique medical condition does not change
that analysis because the factual allegations underlying his as-applied challenge have not
changed in the last two years. (Id. at 22–24).
Because Mr. Hamm’s as-applied claim challenges Alabama’s method of execution,
Alabama’s two-year statute of limitations for personal injury actions applies to that claim. Boyd
v. Warden, Holman Corr. Facility, 856 F.3d 853, 872 (11th Cir. 2017). Typically, an inmate’s
“method of execution claim accrues on the later of the date on which state review is complete, or
the date on which the capital litigant becomes subject to a new or substantially changed
execution protocol.” McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). Under either of
those triggering dates, Mr. Hamm’s lawsuit would be untimely because the state courts
completed review in 1990, (doc. 1 at 5–6), and Alabama enacted its current execution protocol
on July 1, 2002. See West v. Warden, Comm’r, Ala. Doc, 869 F.3d 1289, 1291 (11th Cir. 2017).

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But Mr. Hamm does not raise a facial challenge to Alabama’s method of execution.
Instead, Mr. Hamm contends that, because of his unique medical condition, which arose years
after the limitations period for a facial challenge expired, Alabama’s method of execution is
unconstitutional as applied to him. The Eleventh Circuit has indicated that the triggering date for
an as-applied challenge is different from the triggering date for a facial challenge.
For example, in Siebert v. Allen, the plaintiff raised a facial challenge to Alabama’s
method of execution, and while his lawsuit was pending, he received a diagnosis of hepatitis C
and pancreatic cancer. 506 F.3d 1047, 1048 (11th Cir. 2007). The plaintiff “immediately” filed
an amended complaint adding an as-applied claim. Id. The district court dismissed the facial
challenge based on the plaintiff’s unreasonable delay in bringing the claim, but concluded that
the as-applied claim was not barred by the statute of limitations or the doctrine of laches because
the plaintiff filed it “as soon as he could have brought it.” Id. at 1049. The Eleventh Circuit
agreed. See id. at 1050 (“Given the timeliness of the filing of Siebert’s ‘as-applied’ claim . . . .”).
And in Gissendaner v. Commissioner, Georgia Department of Corrections, the Eleventh
Circuit affirmed the dismissal as untimely of a plaintiff’s as-applied claims because “they rely on
factual conditions that have not changed in the past twenty-four months.” 779 F.3d 1275, 1281
(11th Cir. 2015). The only reason to count back twenty-four months from filing would be if
specific factual conditions could trigger a new statute of limitations for an as-applied challenge.
The court rejects Defendants’ argument that Mr. Hamm’s cause of action for his as-applied
challenge expired in 2004, two years after Alabama last significantly changed its lethal injection
protocol.
Mr. Hamm filed his complaint on December 13, 2017. So the question is whether
Mr. Hamm’s as-applied claim accrued within the preceding two years; i.e., after December 13,

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2015. Mr. Hamm contends that his peripheral vein access worsened in the spring of 2017,
meaning that Defendants would have to resort to a central line to execute him; but his
lymphadenopathy makes central line placement extremely risky. If that contention is true, then
his as-applied challenge is timely.
The court finds that genuine disputes of material fact exist about whether and, if so, when
Mr. Hamm’s medical condition changed in a way that gave rise to his as-applied challenge.
Mr. Hamm states in a sworn affidavit that nurses at Donaldson began having trouble even
drawing blood—a process that is easier than inserting a catheter—starting in March or April
2017. (Doc. 14-6). That affidavit is sufficient to create a genuine issue of material fact about
when medical professionals began having trouble gaining peripheral venous access.
Defendants contend that “Hamm provides no evidence, outside of his self-serving
affidavit, to support” the assertion that his peripheral venous access began manifesting in 2017.
(Doc. 18 at 6 n.1) (emphasis added). But as the en banc Eleventh Circuit reminded us a few days
ago, “an affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an
issue of material fact and preclude summary judgment even if it is self-serving and
uncorroborated.” United States v. Stein, slip op. 16-0914, at 2 (11th Cir. January 31, 2018) (en
banc) (emphasis added); see also Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th
Cir. 2013) (“To be sure, Feliciano’s sworn statements are self-serving, but that alone does not
permit us to disregard them at the summary judgment stage.”); Price v. Time, Inc., 416 F.3d
1327, 1345 (11th Cir.) (“Courts routinely and properly deny summary judgment on the basis of a
party’s sworn testimony even though it is self-serving.”), modified on other grounds on denial of
reh’g, 425 F.3d 1292 (11th Cir. 2005).

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Defendants argued at the hearing that the court should disregard Mr. Hamm’s affidavit
because it is a sham affidavit. “The Eleventh Circuit, in limited circumstances, allows a court to
disregard an affidavit as a matter of law when, without explanation, it flatly contradicts his or her
own prior deposition testimony for the transparent purpose of creating a genuine issue of fact
where none existed previously.” Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1306 (11th
Cir. 2016). Defendants have not pointed to any prior deposition testimony from Mr. Hamm
stating that his peripheral veins were inaccessible before 2017. And in any event, the court notes
that Mr. Hamm underwent at least one MRI with contrast in 2014, indicating that medical
professionals were able to insert a catheter at that time. (See Doc. 14-4 at 16). The court
declines to find that Mr. Hamm’s affidavit is a sham.
The court also notes that genuine disputes of material fact exist about how many of
Mr. Hamm’s peripheral veins are accessible for drawing blood. Dr. Heath says Mr. Hamm might
have one vein; Dr. Roddam says Mr. Hamm has two; and Mr. Butler says Mr. Hamm has
multiple accessible veins. But as Dr. Heath testified, veins that are accessible for drawing blood
may not be accessible for inserting an intravenous catheter. Even if Mr. Hamm has peripheral
veins that can support insertion of a butterfly needle for the purpose of drawing blood, the court
finds a genuine dispute of material fact about whether peripheral venous access exists for the
purpose of inserting an intravenous catheter.
Next, the court finds the existence of a genuine dispute of material fact about whether
Mr. Hamm’s lymphoma is active and whether he is currently experiencing lymphadenopathy.
According to Dr. Heath, lymphoma is a progressive disease. According to the medical records
available to the court on this motion for summary judgment, aside from the tumor in his head,
Mr. Hamm has received no medical treatment for his lymphoma since 2015 at the latest. It is not

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a stretch to infer that an untreated (and unmonitored) progressive disease could worsen over the
course of time and finally manifest in later years.
The court finds that Mr. Hamm presented sufficient evidence to create a genuine dispute
of material fact about whether the cumulative effect of his lymphoma, history of intravenous
drug use, and untreated abnormal lymph nodes in his chest and abdomen resulted in worsened
peripheral veins that manifested in spring 2017. The court WILL DENY Defendants’ motion to
dismiss Mr. Hamm’s complaint as time-barred under the statute of limitations.
b. Laches
Defendants contend that, even if Mr. Hamm’s complaint is timely under the statute of
limitations, the court should dismiss it based on the doctrine of laches because Mr. Hamm
unreasonably delayed filing his complaint, causing the State undue prejudice. (Doc. 12 at 9–10).
The court finds that, if Mr. Hamm’s condition truly worsened in March 2017, a ninemonth delay is not unreasonable in this case, especially in light of his efforts to exhaust his
claim. Mr. Hamm contends that, based on principles of federalism and comity, he could not
have filed his § 1983 complaint until after the Alabama Supreme Court rejected his as-applied
claim. And the Alabama Supreme Court requested Mr. Hamm’s response to the State’s motion
to set an execution date.
Indeed, the Supreme Court in Nelson v. Campbell stated that the Prison Litigation
Reform Act, which applies to death sentenced inmates challenging the method of their execution,
“requires that inmates exhaust available state administrative remedies before bringing a § 1983
action challenging the conditions of their confinement.” 541 U.S. 637, 650 (2004). But the
court doubts that opposing the State’s motion to set an execution date qualifies as exhausting
administrative remedies under the Prison Litigation Reform Act, or that Mr. Hamm’s federal

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case was not ripe until the Alabama Supreme Court set the execution date. Nevertheless, the
court finds that Mr. Hamm reasonably believed that he needed to make his argument to the
Alabama Supreme Court before making it to this court.
In addition, the court notes that, despite the diligent efforts of Mr. Hamm’s counsel to
obtain Mr. Hamm’s medical records from Defendants, they did not provide those medical
records to him until June 2017. Nor did Defendants permit Dr. Heath to examine Mr. Hamm
until September 2017. It was not unreasonable for Mr. Hamm to wait to file his complaint until
he had some evidence to support his allegations. Because laches is an equitable doctrine, and the
equities in this case play both ways, the court WILL DENY Defendants’ motion to dismiss
Mr. Hamm’s complaint based on laches.
c. Merits
“The Eighth Amendment, made applicable to the States through the Fourteenth
Amendment, prohibits the infliction of ‘cruel and unusual punishments.’” Glossip v. Gross, 135
S. Ct. 2726, 2737 (2015). The Supreme Court has noted that “because it is settled that capital
punishment is constitutional, it necessarily follows that there must be a constitutional means of
carrying it out.” Id. at 2732 (quotation marks omitted).
Alabama Code § 15-18-82.1 provides that “[a] death sentence shall be executed by lethal
injection, unless the person sentenced to death affirmatively elects to be executed by
electrocution.” Ala. Code § 15-18-82.1(a). Mr. Hamm did not elect execution by electrocution
within the time period required by the statute, so he has waived that method of execution. See
id. § 15-18-82.1(b) (requiring the prisoner to elect execution by electrocution within 30 days
after July 1, 2002); (Doc. 1 at 3–4). As a result, under Alabama law, the only currently lawful

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method to execute Mr. Hamm is by “lethal injection.” The Alabama Code does not define
“lethal injection.”
To prevail on an Eighth Amendment challenge to a State’s method of execution, a
prisoner must demonstrate that “the method presents a risk that is ‘sure or very likely to cause
serious illness and needless suffering, and give rise to sufficiently imminent dangers.’” Glossip,
135 S. Ct. at 2737 (quoting Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion) (some
quotation marks omitted) (emphases in original). In addition, “prisoners must identify an
alternative that is feasible, readily implemented, and in fact significantly reduce[s] a substantial
risk of severe pain.” Id. (quoting Baze, 553 U.S. at 52) (second alteration in original); see also
Gissendaner v. Comm’r, Ga. Dep’t of Corr., 803 F.3d 565, 569 (11th Cir. 2015) (applying the
readily-available alternative requirement to an as-applied challenge of a State’s method of
execution). The proposed alternative method “must significantly reduce a substantial risk of
severe pain.” Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1299 (11th Cir. 2016).
Glossip’s ‘known and available’ alternative test requires that a petitioner must
prove that (1) the State actually has access to the alternative; (2) the State is able
to carry out the alternative method of execution relatively easily and reasonably
quickly; and (3) the requested alternative would in fact significantly reduce a
substantial risk of severe pain relative to the State’s intended method of
execution.
Id. at 1299 (quotation marks and alteration omitted). The Eleventh Circuit has interpreted the
“known and available” prong of Glossip’s test to require that the plaintiff first show that the
State’s statutorily authorized method of execution is unconstitutional before proposing any other
method that is not statutorily authorized. Id. at 1316–17; see also Boyd, 856 F.3d 853, 867 (11th
Cir. 2017).
A genuine dispute of material fact exists about whether Mr. Hamm has adequate
peripheral venous access to allow Defendants to execute him without resorting to a central line.

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And a genuine dispute of material fact exists about whether Mr. Hamm has lymphadenopathy in
areas of his body that would make a central line placement extremely dangerous. As a result, the
court finds that a genuine dispute of material fact exists about whether executing Mr. Hamm
using the intravenous injection method described in Alabama’s lethal injection protocol
“presents a risk that is ‘sure or very likely to cause serious illness and needless suffering, and
give rise to sufficiently imminent dangers.’” Glossip, 135 S. Ct. at 2737. If his medical
condition is as he alleges, then his execution would be unnecessarily painful and dangerous.
Mr. Hamm has offered two alternative methods of execution: (1) 10 grams of
secobarbital; or (2) “DDMP II,” which is composed of 1 gram of diazepam, 50 milligrams of
digoxin, 15 grams of morphine sulfate, and 2 grams of propranolol. (Doc. 15 at 23). Dr. Blanke,
a physician who specializes in medical-aid-in-dying, attests that he has used those methods for
patients in Oregon. (Doc. 15-3). He attests that they cause death in “more than 99% of cases”
and that complications are “extremely rare.” (Id. at 1–2).
The court finds that, if Mr. Hamm can prove the inaccessibility of his peripheral and
central veins, his proposed alternative “significantly reduce[s] a substantial risk of severe pain.”
Arthur, 840 F.3d at 1299. He has offered at least some evidence that, as applied to him,
Alabama’s method of execution may be ineffective and painful, while his proposed alternative is
very likely to be effective and painless.
Defendants contend that Mr. Hamm’s alternative is not feasible or readily implemented
because Mr. Hamm would have to drink either of the proposed drug combinations, so they
cannot be considered “lethal injections.” See Ala. Code § 15-18-82.1(a) (requiring execution by
“lethal injection”).

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As Dr. Blanke testified and as Taber’s Medical Dictionary states, the medical definition
of “injection” does not require a needle piercing the body; it requires only “[t]he forcing of a
fluid into a vessel, tissue, or cavity.” Injection, Taber’s Medical Dictionary Online,
https://www.tabers.com/tabersonline/view/Tabers-Dictionary/757723/all/injection?q=injection
(emphasis added). Non-medical dictionaries appear to agree. See Inject, Merriam-Webster’s
Dictionary, https://www.merriam-webster.com/dictionary/injecting (“[T]o force a fluid into”);
Inject, Oxford English Dictionary,
http://www.oed.com/view/Entry/96079?redirectedFrom=inject#eid (“To drive or force (a fluid,
etc.) in a passage or cavity, as by means of a syringe, or by some impulsive power; said esp. of
the introduction of medicines or other preparations into the cavities or tissues of the body.”).
The court finds that administration of the proposed alternative drugs through a
nasogastric tube would comply with Alabama’s statute requiring execution by “lethal injection”
because it would involve forcing the liquid into Mr. Hamm’s body. But the court also finds that,
even if Alabama’s statute requiring “lethal injection” required a needle piercing the inmate’s
skin, Mr. Hamm has presented sufficient evidence to create a genuine issue of material fact about
whether that type of “lethal injection” would be unconstitutional as applied to him. As a result,
even if administration of the drugs by nasogastric tube is not statutorily allowed under Alabama
law, the court finds that, at this stage, Mr. Hamm has presented sufficient evidence to defeat
summary judgment. The court WILL DENY summary judgment as to Mr. Hamm’s as-applied
claim.
The court notes that Mr. Hamm raised an Eighth Amendment deliberate indifference
claim in his amended complaint, which he filed during the expedited briefing schedule on his
initial complaint. The court finds that ruling on Defendants’ motion as to Mr. Hamm’s second

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claim would be premature because the parties have not had an adequate opportunity to conduct
discovery. See WSB-TV v. Lee, 842 F.2d 1266, 1269 (11th Cir. 1988) (“[S]ummary judgment
may only be decided upon an adequate record.”). The court WILL DENY AS PREMATURE
the motion for summary judgment on the merits of Mr. Hamm’s second Eighth Amendment
claim.
2. Request for Injunctive Relief
Mr. Hamm has not moved this court to stay his execution, but he does seek an injunction
enjoining Defendants from executing him by intravenous injection. (Doc. 15 at 44). But “[t]he
standard for granting a temporary restraining order or a stay of execution is the same.”
Gissendaner, 779 F.3d at 1280. The movant must show that “(1) he has a substantial likelihood
of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the
stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be
adverse to the public interest.” Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir. 2011). In
addition, “[a] court considering a stay must also 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 v. McDonough, 547 U.S.
573, 584 (2006) (quoting Nelson, 541 U.S. at 650).
The court reserves ruling on Mr. Hamm’s request for preliminary injunctive relief
because the court lacks sufficient information to determine whether execution by intravenous
injection would violate Mr. Hamm’s right to be free of cruel and unusual punishment. At this
stage, Mr. Hamm has presented sufficient evidence to defeat Defendants’ motion for summary
judgment, but he has not presented evidence establishing that he lacks the number and quality of
peripheral veins needed for Defendants to execute him under Alabama’s lethal injection

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protocol. Nor has he presented evidence establishing that he is experiencing lymphadenopathy,
such that Defendants could not safely resort to the protocol’s alternative method of execution
using a central line. The court notes that Defendants control Mr. Hamm’s ability to obtain such
information and the medical examinations that will be necessary for Mr. Hamm to prove those
facts (or for Defendants to disprove them).
As a result, although the court declines to enter a preliminary injunction at this time, the
court will enter a stay of execution so that an independent medical examiner can be appointed to
examine Mr. Hamm and report to the court about his current medical condition. The court
acknowledges that Mr. Hamm has not requested a stay of execution, but the court sua sponte
finds that a stay is necessary. See Grayson v. Allen, 499 F. Supp. 2d 1228, 1234 (M.D. Ala.
2007), affirmed by 491 F.3d 1318 (11th Cir. 2007) (“‘Consideration of the merits’ means more
than a hurried hearing by a harried judge and counsel. As the Eleventh Circuit intimated in
Jones [v. Allen, 485 F.3d 635, 640 n.2 (11th Cir. 2007)], consideration of the merits in this circuit
means full adjudication, entailing a sufficient period to conduct discovery, depose experts, and
litigate the issue on the merits, including any appeals. . . . [I]f full adjudication is not possible on
a fast-track schedule here, then the issue of a stay of execution arises . . . .”).
The court has considered the equities and has concluded that, under the information
currently available to Mr. Hamm and to the court, he has shown a substantial likelihood of
success on the merits, a risk that he will suffer irreparable injury absent a stay, no substantial risk
of harm to Defendants, and that the stay would not be adverse to the public interest.
As discussed above, Mr. Hamm has created genuine issues of material fact about whether
Alabama’s method of execution is unconstitutional as applied to him in light of his unique
medical conditions. If, with the benefit of discovery, he can substantiate the inferences the court

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was required to draw in his favor at the summary judgment stage, he would prevail on his asapplied claim. At this stage, Mr. Hamm has shown a substantial likelihood of success on the
merits. The risk that Mr. Hamm will suffer irreparable injury absent a stay is self-evident, and
the court will not dwell on it.
The court will, however, briefly dwell on the risk of harm to Defendants. The State of
Alabama has a legitimate interest in carrying out the execution of Mr. Hamm’s sentence. The
family of Mr. Hamm’s victim also has a significant interest in the execution of Mr. Hamm’s
sentence. The court is mindful of those important considerations. But the court notes that both
of those interests will be satisfied; Mr. Hamm will be executed, either by intravenous injection or
by “oral injection.”
The court has also considered whether a stay would be adverse to the public interest. The
court finds that, in this case, a stay could not be adverse to the public interest. The public interest
requires constitutional punishments. An execution that is carried out in a cruel and unusual
manner is decidedly adverse to the public interest.
Finally, the court has considered the “‘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. As discussed above, at this stage, and
on the record currently before the court, the court finds that Mr. Hamm brought his complaint in
a timely manner. If he brought it later than the court would have preferred, it was not due to lack
of diligence or in a bad faith attempt to delay his execution.
As soon as possible after the entry of this opinion and order, the court will appoint an
independent medical examiner who will examine Mr. Hamm and report the medical findings
back to the court. The medical examiner will evaluate the accessibility of Mr. Hamm’s

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peripheral veins as well as the current status of his lymphoma and whether he is currently
experiencing lymphadenopathy, or any medical condition that would interfere with Mr. Hamm’s
execution by lethal intravenous injection. Once the court has received the medical examiner’s
report, the court will reevaluate the necessity for a stay or a preliminary injunction.
IV.

CONCLUSION
The court WILL DENY Defendants’ motion for summary judgment on timeliness

grounds. The court WILL DENY Defendants’ motion for summary judgment on the merits of
Mr. Hamm’s as-applied claim. The court WILL DENY AS PREMATURE Defendants’ motion
for summary judgment on the merits of Mr. Hamm’s other Eighth Amendment claim. The court
RESERVES RULING on Mr. Hamm’s request for a preliminary injunction. The court WILL
STAY Mr. Hamm’s execution.
DONE and ORDERED this 6th day of February, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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