Warner et al v. Gross et al

Filing 493

ORDER DENYING IN PART and GRANTING IN PART 467 Plaintiffs' Motion to Amend, Alter and/or Vacate Judgment or, in the Alternative, for a Stay of Enforcement of Judgment. The motion is DENIED except as to plf James Coddington. As to plf Coddington, the motion is GRANTED in part and DENIED in part, as follows: The Rule 54(b) final judgment is VACATED in all respects and the grant of summary judgment on Count II is VACATED. To the extent that Coddington seeks r elief from the grant of summary judgment with respect to Count IX, his motion is DENIED. This leaves Coddington's Count II claim pending for trial. The court DENIES 457 , 458 , 459 , 460 , 463 , 479 Motions and Other Post-Judgment Filings by Wade Lay. (All as fully set out in this order.) Signed by Judge Stephen P. Friot on 10/12/2021. (llg)

Case 5:14-cv-00665-F Document 493 Filed 10/12/21 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

RICHARD GLOSSIP, et al.,
Plaintiffs,
-vsRANDY CHANDLER, et al.,
Defendants.

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Case No. CIV-14-0665-F

ORDER
(on motions at doc. nos. 467, 457, 458, 459, 460, 463, 479)
Before the court is “Plaintiffs’ Motion to Amend, Alter and/or Vacate
Judgment or, in the Alternative, for a Stay of Enforcement of Judgment,” filed on
August 30, 2021. Doc. no. 467. Defendants have responded to the motion and the
plaintiffs have filed a reply as well as a supplement to their reply. The motion, filed
by the thirty-one plaintiffs who are represented by counsel, is at issue.
Also before the court are pro se plaintiff Wade Lay’s motions and other postjudgment filings. Doc. nos. 457, 458, 459, 460, 463, 479. At the court’s direction,
defendants responded to doc. nos. 457-460. Doc. no. 480. Lay filed reply briefs.
Doc. nos. 488, 489. Lay’s motions and other post-judgment filings are at issue.
As set out below, almost all of the relief requested by the movants is denied.
The exception is plaintiff Coddington, whose motion to amend, alter and/or vacate
the judgment will be granted in part and denied in part.

Case 5:14-cv-00665-F Document 493 Filed 10/12/21 Page 2 of 29

Part One: Doc. No. 467
I. Introduction
In doc. no. 467, all plaintiffs other than Lay seek reconsideration, under Rule
59, of the court’s grant of summary judgment on Counts II and IX in the order
entered on August 11, 2021 (“the August 11 Order,” doc. no. 449).1 In addition, five
of the six plaintiffs as to whom judgment was entered in the August 11 Order under
Rule 54(b) seek reconsideration of that decision, failing which those five plaintiffs
seek a stay of enforcement of the court’s judgment.
Analytically, there are some differences among the plaintiffs–more so than
when the court entered the August 11 Order and the resulting Rule 54(b) judgments.
The present array of plaintiffs and their present contentions should be understood at
the outset. There are thirty-two plaintiffs in this case. Of those plaintiffs:
 Twenty-six plaintiffs designated at least one alternative method of
execution. Their Count II claims remain for trial.
 Five plaintiffs who are represented by counsel (Coddington, D. Grant, J.
Grant, Jones and Postelle, referred to by the parties, and now by the court,
as Five Plaintiffs) declined to designate an alternative method of execution.
 Of the Five Plaintiffs, one (Coddington) has asserted that he did not
intentionally decline to designate an alternative method.
 Of the Five Plaintiffs, three (D. Grant, Jones and Postelle) have filed
post-judgment affidavits reversing their positions as to designation of
an alternative method.
 Of the Five Plaintiffs, one (J. Grant) has not reversed his position as
to designation of an alternative method.
 One plaintiff (Lay) who is not represented by counsel has reversed his
position as to designation of an alternative method.2

1

The August 11 Order is reported at Glossip v. Chandler, ___ F.Supp.3d ___, 2021 WL 3561229
(W.D. Okla. August 11, 2021).
2
See doc. no. 457-2, in which Mr. Lay proffers execution by firing squad as his alternative method.

2

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The motion for relief from judgment filed by the Five Plaintiffs is addressed
here, in Part One of this order. Portions of Part One are also relevant to Lay, but
Lay’s motions and other post-judgment filings are primarily addressed in Part Two
of this order.
II. Standard of Review Under Rule 59
Rule 59(e), Fed. R. Civ. P., gives a district court the chance to rectify its own
mistakes in the period immediately following its decision. Banister v. Davis, ___
U.S. ___, 140 S.Ct. 1698, 1703 (2020). In keeping with that corrective function,
federal courts generally have used Rule 59(e) only to reconsider matters properly
encompassed in a decision on the merits. Id. In particular, courts will not address
new arguments or evidence that the moving party could have raised before the
decision issued. Id.; and see Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 at n. 5
(2008) (Rule 59(e) permits a court to alter or amend a judgment, but the rule may
not be used to relitigate old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment). Thus, Rule 59(e) relief is
available in limited circumstances which include: 1) an intervening change in the
controlling law, 2) new evidence submitted that was previously unavailable, and 3)
a need to correct clear error or prevent manifest injustice. Hayes Family Trust v.
State Farm Fire & Casualty Co., 845 F.3d 997, 1004 (10th Cir. 2017). When
supplementing a Rule 59(e) motion with additional evidence, movant must show the
evidence is newly discovered and, if the evidence was available at the time of the
decision being challenged, that counsel made a diligent yet unsuccessful effort to
discover the evidence. Committee for the First Amendment v. Campbell, 962 F.2d
1517, 1523 (10th Cir. 1992).
If the court denies relief under Rule 59(e), then movants ask the court,
alternatively, to stay enforcement of its judgment.

3

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Rule 8, Fed. R. App. P., provides that a motion to stay the judgment of the
district court, pending appeal, must ordinarily be brought first in the district court.
According to 10th Cir. R. 8.1, no application for a stay or an injunction pending
appeal will be considered unless the applicant addresses the following factors which
must be considered with respect to such a motion: 1) the likelihood of success on
appeal, 2) the threat of irreparable harm if the stay or injunction is not granted, 3)
the absence of harm to opposing parties if the stay or injunction is granted, and 4)
any risk of harm to the public interest. See F.T.C. v. Mainstream Marketing
Services, Inc., 345 F.3d 850, 852 (10th Cir. 2003) (to obtain stay FTC was required
to address four factors). The first two factors are the most critical. Nken v. Holder,
556 U.S. 418, 434 (2009).
III. Discussion
A. Summary Judgment Was Appropriate on Count IX.
In doc. no. 467, all plaintiffs other than Lay (referred to in this Section A as
“plaintiffs”) move for relief from the court’s grant of summary judgment in favor of
the defendants on Count IX, the human experimentation count. Despite the fact that
plaintiffs presented only slightly more than one page of argument in response to
defendants’ motion for summary judgment on Count IX, they now present a host of
arguments in an attempt to revive this count.
As is discussed below, Count IX still fails as a matter of law. But before
getting into the legal reasons for which summary judgment was appropriate as to
Count IX, one factual matter is worth noting. Count IX is bottomed on plaintiffs’
contention that defendants “have failed to test the execution drugs” (midazolam,
followed by a paralytic and potassium chloride) on non-human animals before using
them on plaintiffs or, “more broadly that these executions are experiments on
humans.” Third Amended Complaint, doc. no. 325, at 63; Motion, at 9 (emphasis in
original). The suggestion that the use of midazolam makes execution under Chart D
4

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an exercise in human experimentation is, at the outset, set back somewhat by the
Supreme Court’s observation, six years ago and in this case, that “numerous courts
have concluded that the use of midazolam as the first drug in a three-drug protocol
is likely to render an inmate insensate to pain that might result from administration
of the paralytic agent and potassium chloride.” Glossip v. Gross, 576 U.S. 863, 881
(2015).
Plaintiffs’ first argument in the motion now before the court pertains to the
due process aspect of Count IX. (Count IX is brought under the Due Process Clause
of the Fourteenth Amendment and under the Eighth Amendment.) Plaintiffs argue
“The Due Process Clause of the Fourteenth Amendment affords a substantive due
process right to be free from human experimentation.” Motion at 5. Accordingly,
plaintiffs contend the court should not have granted summary judgment on the due
process portion of Count IX.
Plaintiffs cite three decisions, none of which help them. The two Ohio
decisions indicate that Ohio’s protocol is experimental in some sense of that term,
but these decisions do not support plaintiffs’ position that an experimental protocol
is necessarily an unconstitutional one. See In re Ohio Execution Protocol Litigation,
2017 WL 2964901 (S.D. Ohio July 12, 2017);3 In re Ohio Execution Protocol
Litigation, 994 F. Supp.2d 906, 913 (S.D. Ohio 2014).4 Plaintiffs also refer to

3

The Eighth Cause of Action asserted a claim for bodily experimentation without consent in
violation of the Due Process Clause. 2017 WL 2964901 at *14. The magistrate judge found that
changing the protocol in the way Ohio had done did not violate substantive due process rights. Id.
at *17. The Eighth Cause of Action was dismissed under Rule 12(b)(6). Id. at **17, 31.

4

Judge Gregory L. Frost recognized that Ohio’s protocol “presents an experiment in lethal
injection processes.” 994 F. Supp. 2d at 913. The new mix of drugs, employed at doses
understandably lacking actual application studies, and the unpredictable nature of human response,
made the inquiry one of probabilities. Id. The judge stated that “as odd as it sounds, this is not a
problem until it is actually a problem” because “[t]he law teaches that Ohio is free to innovate and

5

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Rochin v. California, 342 U.S. 165 (1952). Rochin is cited in the 2017 Ohio case
for the proposition that: “There is no doubt that the substantive branch of the Due
Process Clause does impose limitations on bodily intrusions by government
entities.” 2017 WL 2964901 at *17. That statement is correct as far as it goes, but
Rochin has nothing to do with execution protocols.5
Plaintiffs are entitled to no relief with respect to the due process portion of
Count IX.
Next, plaintiffs argue that Warner v. Gross, 776 F.3d 721 (10th Cir. 2015), the
Tenth Circuit’s decision entered at an earlier stage of this case, indicates this court
erred when it granted judgment on Count IX. Plaintiffs state that Warner “suggested
that such a claim is viable….”, and that Warner “affirmed that a human
experimentation claim is viable.” Motion at 5, 7. This is a stretch. Warner upheld
this court’s denial of a preliminary injunction with respect to Count 7, an earlier
version of the human experimentation claim alleged in Count IX. In doing so,
Warner rejected plaintiffs’ argument that an “evolving standards of decency”
analysis applied to Count 7. The Court of Appeals rejected that standard in favor of
the risk analysis of Baze v. Rees, 553 U.S. 35 (2008), as the standard applicable to
the human experimentation claim. Warner, 776 F.3d at 736.
Furthermore, when Warner addressed Count 7, it noted that earlier in that
decision it had considered and rejected a similar, if not identical, argument. Id. The
prior discussion which Warner was referencing includes the following passage.
to evolve its procedures….” Id. Although Judge Frost was concerned about the degree of risk
and the amount of pain involved, he held the risk “acceptable within the contours of the
Constitution.” Id.
5

Rochin held that the petitioner’s conviction was obtained by methods which offended the Due
Process Clause. 342 U.S. at 174. Those methods included the forcible extraction of the contents
of petitioner’s stomach, by government agents, to remove what was there and obtain evidence. Id.
at 172.

6

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Nothing in Baze, however, supports these arguments
[plaintiffs’ arguments about evolving standards of
decency and their complaint that Florida was the only
other state that had carried out executions using a threedrug protocol with midazolam as the first drug]. To be
sure, the protocol at issue in Baze enjoyed widespread use
at the time of the Supreme Court’s decision. But that fact
was not critical to, nor was it made a part of, the Supreme
Court’s key holdings in Baze. Indeed, if that were a
requirement, it would effectively prevent any state from
revising its execution protocol.
Id. at 733 (emphasis added).
Nothing in Warner suggests that Count IX is viable. The court rejects
plaintiffs’ argument that Warner supports plaintiffs’ Count IX claim.
Next, plaintiffs argue that summary judgment on Count IX is premature
because the risk analysis required by the Eighth Amendment under Baze has not yet
been adjudicated for purposes of Count II. Plaintiffs contend that because the risk
analysis applies to both counts, it was a mistake to grant summary judgment on
Count IX while Count II remains in the case for most plaintiffs. Plaintiffs argue that
“Count IX rises and falls with Count II, and thus the Court erred in entering summary
judgment on Count IX before deciding the merits of Count II at trial in early 2022.”
Reply brief at 1.
Plaintiffs’ argument that Counts IX and II rise and fall together is new.
Plaintiffs advanced no argument at the summary judgment stage about a relationship
between Counts IX and II, much less arguing that those counts are inseparably fated.
This is the first ground for rejecting plaintiffs’ prematurity argument.
Moreover, Counts II and IX are separable. As explained below, they are based
on distinct allegations and theories of law.
Count IX alleges that Oklahoma’s lethal injection protocol violates the Eighth
and

Fourteenth

Amendments

because
7

the

protocol

constitutes

human

Case 5:14-cv-00665-F Document 493 Filed 10/12/21 Page 8 of 29

experimentation to which the subjects have not consented. See doc. no. 325, ¶ 184
(“Experimentation on human beings who have not provided consent violates an
individual’s substantive due process right to liberty and a prisoner’s right to be free
from cruel and unusual punishment and violates Plaintiffs’ rights under the Eighth
and Fourteenth Amendments to the United States Constitution.”). This
understanding of Count IX, as a count which rests its claim of unconstitutionality
solely on the experimental (i.e. new or untested) nature of a protocol to which the
subjects have not consented, is consistent with plaintiffs’ defense of Count IX at the
summary judgment stage. At that stage, plaintiffs argued: “In sum, there are genuine
disputed material facts as to whether Defendants’ execution method constitutes
impermissible human experimentation and thus violates Plaintiffs’ rights guaranteed
by the Eighth and Fourteenth Amendments.” Doc. no. 425 at 546 (emphasis added).
Accordingly, Count IX alleges a relatively narrow, stand-alone argument for
unconstitutionality under the Eighth and Fourteenth Amendments: the alleged fact
that the protocol constitutes unconsented-to experimentation.
Count II, on the other hand, brings an Eighth Amendment challenge focused
on the specifics of the three-drug protocol in question in this case. Count II alleges
that this protocol creates a substantial risk of inflicting grievous suffering and harm
which is foreseeable and significant, but which can be avoided by using alternative
methods. See doc. no. 325, ¶¶ 123-126.
Plaintiffs’ prematurity argument contends the court has not yet conducted the
Baze analysis with respect to Count IX because the court has not adjudicated that
issue for purposes of Count II. This is incorrect. The court has conducted the Baze
analysis for purposes of Count IX and has found that count lacking, resulting in
summary judgment on Count IX. The situation is different with respect to Count II.

6

Unless otherwise stated, this order cites documents by their original page numbers.

8

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But the court is aware of no rationale which would require it to keep a fatally flawed
count in this case just because a different count, which rests on different allegations,
is subject to the same analysis and remains viable for most plaintiffs.
And make no mistake, Count IX is flawed as a matter of law. Courts,
including the Supreme Court in Baze, indicate the law does not preclude a state from
using new or innovative protocols. See Baze, 553 U.S. 35, 62 (“[O]ur approval of a
particular method in the past has not precluded legislatures from taking the steps
they deem appropriate, in light of new developments, to ensure humane capital
punishment. There is no reason to suppose that today’s decision will be any
different.”); Cooey v. Strickland, 589 F.3d 210, 229-30 (6th Cir. 2009) (“That the
procedure has never before been used does not itself establish that the procedure is
cruel and unusual. The Supreme Court has previously considered various modes of
execution and has yet to find one violative of the Eighth Amendment,” citing Baze.).
The untenability of Count IX is further revealed by the following passage in
plaintiffs’ reply brief.
If the Court ultimately finds Oklahoma’s lethal injection
protocol unconstitutional based in part on evidence from
executions of the Dismissed Plaintiffs, all of whom are
nonconsenting human subjects, then the executions of the
Dismissed Plaintiffs will have been “failed” experiments
that necessarily violated the Dismissed Plaintiffs’ Eighth
Amendment rights. If the Court ultimately finds
Oklahoma’s lethal injection protocol constitutional based
in part on evidence from executions of the Dismissed
Plaintiffs, then the executions of the Dismissed Plaintiffs
will have been “successful” experiments supporting the
finding of constitutionality. Either way, the executions
will have been experiments.
Reply brief at 1-2. Thus, plaintiffs contend that even if the court ultimately rejects
the remaining plaintiffs’ arguments at trial and finds the protocol constitutional for
purposes of Count II, the protocol would be an experimental one, a characterization
9

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which Count IX alleges is sufficient to render it unconstitutional. That is not, and
has never been, the law.
For all of these reasons, plaintiffs’ prematurity argument is rejected.
Next, plaintiffs argue that when the court granted summary judgment on
Count IX it should not have relied on Warner because Warner was decided at the
preliminary injunction stage, when different standards applied. This argument is
rejected. This court’s summary judgment order set out the standards applicable to a
summary judgment motion, and the court rigorously applied those standards.
Neither the law nor the facts supported Count 7 at the preliminary injunction stage,
evaluated under the standards applicable to preliminary injunction motions. Count
IX fails at the summary judgment stage, under the standards applicable through Rule
56, Fed. R. Civ. P. In these circumstances it was not error for this court, in its order
on summary judgment, to refer to Warner or to its reasons for finding that a similar
human experimentation count had failed at an earlier stage.
Next, plaintiffs argue that the testimony of their expert witness for purposes
of the experimentation claim, Dr. Joseph Fins, is unrebutted and precludes summary
judgment on Count IX. Plaintiffs state that Dr. Fins explains in his expert report that
executions under the protocol would constitute unregulated human-subjects
experimentation. Motion at p. 8. They say Dr. Fins’ testimony demonstrates that
the use of a drug or intervention is experimentation when there is a state of genuine
uncertainty within the expert medical community regarding the comparative merits
of preferred interventions. Id. Be that as it may, such testimony does not come close
to meeting the standard for unconstitutionality set forth in Baze. Plaintiffs’ argument
for reviving Count IX based on Dr. Fins’ testimony is rejected.
Plaintiffs

next

argue

that

the

court

misunderstood

their

human

experimentation claim as a claim limited to a contention that non-human animal
testing must precede executions. Plaintiffs argue that Count IX actually claims,
10

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“more broadly[,] that these executions are experiments on humans.” Motion at 9
(emphasis in original). At this point, the court is not sure whether, at the summary
judgment stage, it was clear to the court that Count IX as a claim based solely on a
lack of non-human animal testing. (A case can be made for either interpretation of
Count IX.)7 Regardless, at this stage, the court has reviewed Count IX with the
presumption that when Count IX characterizes the protocol as experimental it refers
to something broader than a protocol which has not been tested on non-human
animals. Having done so, the court adheres quite readily to its conclusion that Count
IX fails for lack of support in the law.
Next, plaintiffs argue that the court’s order on summary judgment invited
defendants to execute the six plaintiffs whose claims failed at the summary judgment
stage (the Five Plaintiffs represented by counsel plus Wade Lay) and to then offer
evidence at trial to inform the court’s determination of the risk posed by Oklahoma’s
protocol. Plaintiffs contend that this proposed sequence of events shows that the
court does not know how the executions will unfold, thereby establishing that the
court is permitting human experimentation. This argument is rejected. First of all,
the Constitution does not require precise fore-knowledge regarding exactly how an
execution will unfold. Secondly, if executions do occur before trial, they will be a
potential source of evidence, but they will have no impact on the correctness or
incorrectness of the grant of summary judgment on Count IX.8

7

Paragraph ¶ 181 of the Third Amended Complaint alleges that defendants have failed to test the
drugs or procedures “on non-human animals.” Paragraph 182 alleges that without the benefit of
“animal-testing results,” the use of the drugs and procedures “constitute high-risk experimentation
with lethal drugs on human subjects.” Paragraph 183 refers to “experiments without any
scientifically sound expectation that these experiments will succeed in producing an execution that
does not inflict severe pain….”
8

If executions do take place before trial and if they generate evidence favorable to the plaintiffs,
there is little doubt the remaining plaintiffs would be quick to offer that evidence.

11

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Finally, the court notes plaintiffs’ statement that the fact that Count 7 did not
succeed in Warner, or that a human experimentation claim did not succeed in some
other case, “does not mean that no human experimentation claim could ever succeed
under any circumstances.” Reply brief at 3, n. 1. The court agrees. Neither the
Court of Appeals in Warner, nor this court, have ruled that no human
experimentation claim could ever succeed. If a state were to propose an execution
method such as injecting gasoline into a person’s veins to see what would happen (a
hypothetical raised in plaintiffs’ brief in response to defendants’ motion for
summary judgment), a human experimentation claim along the lines of Count IX
might be viable. But that is not this case. In the context of this case, Count IX fails
as a matter of law.
After careful consideration of plaintiffs’ Rule 59 arguments, the court finds
no basis for altering, amending or vacating its grant of summary judgment on Count
IX.9 Plaintiffs’ Rule 59 motion will be denied with respect to Count IX.10
B. Summary Judgment Was Appropriate on Count II as to Those Plaintiffs Who
Expressly Declined to Designate an Alternative Method of Execution.
1. Controlling authority requires the prisoner, in a method-of-execution
challenge, to designate a feasible and readily implemented alternative
method for carrying out his sentence. Pleading a theoretically available
method, while declining to designate that method for actual use and
reserving the right to litigate its constitutionality, does not suffice.

9

The court’s grant of summary judgment on Count IX does not preclude the remaining plaintiffs
from offering, at trial, evidence relevant to Count II which might have also been relevant to Count
IX, so long as such offer is consistent with the court’s ruling, set forth in this order, that a protocol’s
arguably new or untested nature is not something which, in and of itself, renders it unconstitutional.
The relevance and admissibility of any such evidence can and will be determined at trial.
10

Given that relief has been denied under Rule 59, plaintiffs ask the court, in the alternative, to
stay enforcement of its ruling on Count IX. That aspect of plaintiffs’ motion is addressed in Part
“D,” where the court addresses plaintiffs’ request for a stay of the court’s rulings on both Counts
IX and II.

12

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Citing the relevant passage in the Third Amended Complaint, the Five
Plaintiffs rely on their counsel to plead theoretically available alternative methods
while, individually, they decline to designate an alternative method11 and reserve the
right to litigate any alternative method which might be attempted.12 Motion at 11.
In this scheme of things, entry of judgment in any given round of method-ofexecution litigation does nothing more than tee up the next round.
Writing with increasingly pointed prose, the Supreme Court, in the BazeGlossip-Bucklew series of decisions,13 made it abundantly clear that the prisoner
must designate a “feasible and readily implemented” alternative method for carrying
out his sentence. Bucklew at 1125. In the Court’s words, this must be “the inmate’s
proposal” for carrying out the sentence of death “relatively easily and reasonably
quickly.” Id. at 1129 (emphasis added). There is no other reason that Justice
Gorsuch would have written, in Bucklew, that method-of-execution litigation must
proceed on the assumption “of course, that the inmate is more interested in avoiding
unnecessary pain than in delaying his execution.” Id. There is no need to repeat
here the court’s discussion on p. 17 of the August 11 Order. The short of the matter,
as discussed there, is that designation of an alternative is no mere formality; failure
to do so is a “dispositive shortcoming.” Bucklew at 1121.14

11

Ignoring, for the moment, the post-judgment reversal of position by three of the five and Lay.
See doc. no. 425 at 42. (“[W]hether the alternative might be considered constitutional when
assessed against a proffered alternative to that alternative . . . is a question for another day and
not at issue here.”).
13
Baze v. Rees, 553 U.S. 35 (2008); Glossip v. Gross, 576 U.S. 863 (2015); Bucklew v. Precythe¸
139 S.Ct. 1112 (2019).
14
The Five Plaintiffs’ argument for a religious exemption was rejected a year ago, because it is
“foreclosed by the standards set forth in Glossip and Bucklew.” Doc. no. 349 at 10. The notion
that the Supreme Court, in repeating the requirement to designate an alternative method in no less
than three cases, was oblivious to a possible religious liberty argument, is wholly untenable.
12

13

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2. The reversal of position by D. Grant, Jones, Lay and Postelle with respect
to designation of an alternative method is unavailing.
In four sentences, with no citation of authority or developed argument, D.
Grant, Jones and Postelle ask the court to “reconsider its granting of summary
judgment with respect to Count II” because they have filed affidavits reversing their
previous refusals to designate an alternative method. Motion at 12-13. As has been
noted, pro se plaintiff Wade Lay has also reversed his position. (Lay’s motions and
other post-judgment filings are addressed in more detail in Part Two of this order.)
The court concludes that reconsideration is unwarranted with respect to this set of
plaintiffs.
First, this request for reconsideration is rejected because it is not supported by
developed argument. Wall v. Astrue, 561 F.3d 1048, 1065 (10th Cir. 2009). See
also Higgins v. New Balance Athletic Shoe, Inc. 194 F.3d 252, 260 (1st Cir. 1999)
(district court is free to disregard arguments that are not adequately developed).
Secondly, whether this change of litigation strategy is viewed as a basis for
vacation of the Rule 54(b) judgments, or as an argument for reconsideration of the
underlying order granting summary judgment, it comes too late. As defendants
correctly argue, the Supreme Court has repeatedly told the plaintiffs they are obliged
to designate an alternative method, and this court gave them several opportunities to
do so. Doc. no. 476 at 7. Their reversal of position is not premised on a change in
the law, or on newly-discovered evidence that was previously unavailable, or on a
need to correct a clear error. See Part II, above (Standard of Review).
As a garden-variety matter of reconsideration (as distinguished from relief
from a judgment under Rule 59), the result is the same. A motion for reconsideration
is appropriate where the court has “misapprehended the facts, a party's position, or
the controlling law.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). At the summary judgment stage, the facts as to Messrs. D. Grant, Jones, Lay
14

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and Postelle were clear and their unequivocally-expressed positions declining to
designate alternative methods were unmistakable. There was no misapprehension
of the facts. The controlling law was not misapprehended and has not changed.
3. Plaintiff Coddington has demonstrated a meritorious basis for vacation of
the Rule 54(b) judgment entered against him.
Plaintiff Coddington has plausibly asserted–with credible corroboration from
an independent evidentiary source–that, at the time he signed the document
indicating that he declined to designate an alternative method of execution, he
thought he had already effectively communicated his choice of a firing squad. Doc.
no. 467-5. The court credits his assertion that he “had already chosen firing squad”
and that he “didn’t want to pick anything else.” Id. These assertions are backed by
an email dated the day the plaintiffs’ alternative method designations were due, as
had been required by an order of the court. See doc. no. 401 (April 2, 2021 Order)
and doc. no. 467-5 (May 3, 2021 email). In the court’s view, this sequence of events
gave rise to a “misapprehension” of the facts, a misapprehension which occurred for
reasons not attributable to Coddington himself or to dilatory tactics of counsel. The
Rule 54(b) judgment will be vacated as to Coddington.
C. Entry of Final Judgment Under Rule 54(b) Was Appropriate.
In their motion to amend or alter or vacate the court’s judgment, five15 of the
six plaintiffs as to whom judgment was entered under Rule 54(b) (Lay being the
sixth) argue that entry of final judgment under that rule was clearly erroneous.
Motion at 14. They advance two main arguments. They argue, first, that the court’s
15

Again, the Five Plaintiffs who are represented by counsel and as to whom judgment was entered,
are Coddington, D. Grant, J. Grant, Jones and Postelle. However, the Rule 54(b) judgment will be
vacated as to Coddington, so this argument presents a live issue only as to the four other movants
against whom judgment was entered plus Lay. Lay is not a movant for purposes of doc. no. 467.
But he objects to having been included in the group of plaintiffs as whom the court entered a Rule
54(b) certification. Accordingly, the court’s discussion of its Rule 54(b) certification applies to
him.

15

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finding of “clear cleavage” between the legal posture of the Five Plaintiffs plus Lay
and the other twenty-six ignores the fact that all of the plaintiffs are in the same
position as to the other nine counts. Motion at 15. Second, they argue that the
equities militate against entry of final judgment. Id. at 17. The court disagrees.
Rule 54(b), Fed.R.Civ.P., by its own terms, authorizes entry of final judgment
as to “one or more, but fewer than all, claims or parties,” but only “if the court
expressly determines that there is no just reason for delay.” The Five Plaintiffs
emphasize that there are nine counts in addition to Count II and, essentially, that all
of the plaintiffs are in the same boat as to those nine counts. This, they argue, cuts
against Rule 54(b) certification because “judicial administrative interests” weigh “in
favor of not entering partial, final judgments.” Motion at 15.
If the authorities applying Rule 54(b) teach district courts anything, they teach
that the court should take a practical approach to determining whether certification
under that rule is appropriate. E.g., United Bank of Pueblo v. Hartford Acc. &
Indem. Co., 529 F.2d 490, 492 (10th Cir. 1976). A district court ought to have a
very good reason for making a Rule 54(b) certification, lest (among other
undesirable consequences) the reviewing court be saddled with piecemeal appeals.
A practical look at the claims asserted in this case tells us that, by far, the most
consequential claim is the challenge to execution with midazolam under Chart D.
As required by no less than three Supreme Court decisions, some of the plaintiffs
designated alternative means of execution; others did not. The other nine claims are
boutique end-stage capital litigation claims that, virtually without exception, have
gotten no traction in the federal courts in cases presenting facts resembling the
operative facts of the case at bar. They are based on matters such as failure to
disclose sufficient information (Count I), deliberate indifference to plaintiffs’
medical needs by carrying out execution under Chart D (Count III), denial of access
to counsel during the execution (Counts IV and V), ex post facto and due process
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violations because of substitution of midazolam (Counts VI and VII), religious
freedom violation in the requirement to designate an alternative method (Count
VIII), human experimentation (Count IX) and denial of access to governmental
information (Count X). Thus, a quick look at these nine claims, all of which have
been resolved against the plaintiffs as a matter of law (and none of which will be the
subject of any further litigation in this court prior to entry of final judgment as to the
remaining plaintiffs), undermines the Five Plaintiffs’ contention that “Count II is so
similar to the other nine Counts that the final judgments under Rule 54(b) will create
inefficient, piecemeal appeals . . . .” Motion at 16. Count II, the single remaining
substantial claim, awaits trial for the twenty-seven plaintiffs (previously twenty-six,
but with the addition of Coddington, this group now numbers twenty-seven) who
have raised serious, triable issues as to the constitutionality of execution under Chart
D. Movants D. Grant, J. Grant, Jones and Postelle, as well as Lay, having chosen a
course that runs directly afoul of Supreme Court precedent, have raised no such
triable issues. Having chosen that course, they have placed themselves in a radically
different category than the other twenty-seven plaintiffs.
As for the equities, the Supreme Court has made it unmistakably clear, as was
discussed in the August 11 Order at 21-22, that after decades of direct and collateral
review of a capital conviction and sentence have run their course, the interest of the
state and the victims in timely enforcement of a sentence must, at long last, be
recognized. Those like D. Grant, J. Grant, Jones and Postelle, as well as Lay, who
have expressly declined to do that which the Supreme Court has said they must do,
cannot plausibly claim the equitable high ground.

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D. Stay of the Effectiveness of the Rule 54(b) Judgments Is Neither Required Nor
Appropriate.
The Five Plaintiffs (now four plaintiffs as a result of the court’s grant of Rule
59 relief to Coddington)16 argue that if the court denies the Rule 59 motion,
enforcement of the judgment should be stayed. Motion at 18.
It should be noted at the outset that it is not clear, as a practical matter, what
the practical consequence of a stay of “enforcement” of the Rule 54(b) final
judgments would be. The judgments do not order or otherwise require anyone to do,
or refrain from doing, anything. They finalize the court’s determinations, on the
motions to dismiss and for summary judgment, that the plaintiffs’ claims are without
merit as a matter of law. The court has not granted or denied stays of execution or
other provisional relief in the present, post-Glossip phase of this case (and no such
relief has been sought by the Five Plaintiffs).17 Third Amended Complaint, doc. no.
325 at 66-67. But regardless of what result would ensue from granting a stay of
“enforcement” of the Rule 54(b) final judgments, the court concludes a stay should
be denied.
Likelihood of success on the merits. As for likelihood of success on the
merits, further elaboration on the August 11 Order, or on the discussion in Part One,
sections III (A) and (B) of this order, is unnecessary. These orders make clear this
court’s view that there is no likelihood of success on the merits.
Irreparable harm. Plaintiffs’ irreparable harm argument is premised in part on
the assumption that a grant of a stay would amount to a stay of execution. Motion
at 19. That is incorrect, as has been noted. Plaintiffs’ other main premise under the

16

For the sake of simplicity, the four plaintiffs (D. Grant, J. Grant, Jones and Postelle) will be
referred to simply as plaintiffs in this discussion.
17

Lay has filed a motion for a stay of execution, addressed in Part Two.

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heading of irreparable harm is that denial of a stay would expose plaintiffs to the
possibility of execution “with a protocol that this Court may still find is not effective
to protect prisoners from pain and suffering violative of the Eighth Amendment.”
Motion at 20. That argument obviously collapses into an argument on the merits of
these plaintiffs’ Count II claims–claims which could be viable, if at all, only if these
plaintiffs had designated alternative methods of execution. It is difficult to equate
self-inflicted harm (viz., execution under Chart D while the rest of the plaintiffs
litigate the constitutionality of execution under Chart D) with irreparable harm.
Harm to the opposing party; the public interest. As plaintiffs correctly point
out, these latter two factors governing consideration of a stay are secondary to the
first two. Nken, 556 U.S. at 434. Nevertheless, as this court has noted several times,
the Supreme Court has made it plain (increasingly plain–see Bucklew, at 1133-34)
that once direct and collateral review of the underlying conviction and sentence have
run their course, the interests of the state, the victims and the general public come to
the fore. In end-stage capital litigation, if there is not a substantial merits-based
reason for the court to suspend the effectiveness of its judgment, there is, almost by
definition, a substantial reason for the court to decline to do so. That much was made
clear by the Court of Appeals in this case, when that court, having concluded that
“plaintiffs failed to establish a significant possibility of success on the merits,”
expressly declined to address the other three factors, declined to disturb this court’s
denial of a stay, and denied an emergency motion for a stay pending appeal. Warner,
776 F.3d 721, 736.
IV. Conclusion: Part One
For the foregoing reasons, the motion (doc. no. 467) is DENIED except as to
plaintiff James Coddington. As to plaintiff Coddington, the motion is GRANTED
in part and DENIED in part, as follows: The Rule 54(b) final judgment is

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VACATED in all respects and the grant of summary judgment on Count II is
VACATED. To the extent that Coddington seeks relief from the grant of summary
judgment with respect to Count IX, his motion is DENIED.

This leaves

Coddington’s Count II claim pending for trial (along with the Count II claims of the
other plaintiffs as to whom a Rule 54(b) judgment was not entered).
Part Two: Lay’s Motions and Other Post-Judgment Filings:
Doc. Nos. 457, 458, 459, 460, 463, 479
I. Introduction
After the court entered summary judgment against plaintiff Wade Lay in its
August 11 Order, Lay filed doc. nos. 457, 458, 459, 460, 463 and 479.18
In their response to doc. nos. 457-460, defendants object to any relief.
However, they also state that if the court agrees with Lay’s argument that he was
improperly joined as a plaintiff in the Third Amended Complaint, it may be
appropriate to dismiss Lay from this action, without prejudice, and to modify the
court’s judgment against Lay to reflect his dismissal.19 Doc. no. 480. Lay filed reply
briefs. Doc. nos. 488, 489. His reply briefs do not take the defendants up on what
is basically an invitation to Lay to seek dismissal from this action. Lay’s reply briefs
say nothing about a motion or a request or a wish to be dismissed from this action.
To the contrary, they express Lay’s wish to participate in the trial. Lacking a clearcut motion from Lay asking to be dismissed from this action, it would be
inappropriate to do so.

18

This order describes some of the arguments made by Lay in his filings, but it makes no attempt
to describe all of them. Whether or not reviewed in this order, the court has considered all of Lay’s
arguments.

19

The government brings this up because Lay’s filings assert (as he has before) that he does not
wish to bring the claims alleged in the Third Amended Complaint. Lay continues to rely on another
version of the complaint, which was brought solely by him, and which was stricken long ago. See
doc. no. 357 (order).

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Moving on, of the filings by Lay, only doc. nos. 458 and 479 clearly indicate,
by their titles, that they are intended as motions. That said, Lay appears pro se and
his pleadings are liberally construed. Moreover, the issues discussed in Lay’s postjudgment filings overlap. In addition, the court must construe any motion which
challenges the court’s judgment, and which is filed within the appropriate timeperiod (twenty-eight days), as a motion brought under Rule 59(e). See In re Hayes
Family Trust, 845 F.3d at 1004 (“No matter how styled, a motion will be deemed a
Rule 59(e) motion if it is served within the specified time period and seeks relief
appropriate to Rule 59(e) by questioning the correctness of the underlying
judgment”); Price v. Philpot, 420 F.3d 1158, 1167, n. 9 (10th Cir. 2005) (generally,
a motion for reconsideration may be construed in one of two ways: if filed within
the time limits for a Rule 59(e) motion it may be treated as a motion to alter or amend
the judgment under that rule; if filed after that period, it is treated as a motion for
relief from judgment under Rule 60(b), Fed. R. Civ. P.)
For these reasons, the court has reviewed all of Lay’s filings addressed in this
order, no matter how labelled, to determine whether relief from the court’s grant of
summary judgment against Lay is warranted under Rule 59(e) or Rule 60(b), as
applicable. Other than doc. no. 479,20 the filings listed above were made within
twenty-eight days of the court’s entry of summary judgment against Lay and are
therefore considered under Rule 59(e). Doc. no. 479 is considered under Rule 60(b).
Having conducted that review, the court finds, for the reasons set out below, that
Lay is entitled to no relief.

20

Lay signed doc. no. 479 on September 8, 2021, which is within the twenty-eight day period
necessary for review under Rule 59(e), Fed. R. Civ. P. However, there is nothing to indicate
compliance with the prison mailbox rule. Doc. no. 479 is therefore considered filed when it was
received by the court, Price v. Philpot, 420 F.3d 1158, 1166-67 (10th Cir. 2005), which occurred
on September 13, 2021. Doc. no. 479-1 (envelope).

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II. Doc. No. 457
Doc. no. 457 (docketed as a notice) is entitled: “Plaintiff Wade Lay Acting
Pro-Se Submits This Alternative to Execution as Initially Prompted by the Court in
Doc. No. 444, Exhibit “A,” with Understanding of its Legal Import (with Brief in
Support).”
In his reply brief (doc. no. 488), Lay repeatedly argues that doc. no. 457 is not
a motion for relief under Rule 59(e) but is, instead, an amendment of his original
response to the court’s order which asked him to identify an alternative means of
execution. Lay argues this amendment is permitted by Rule 15(a)(1)(A), Fed. R.
Civ. P. Rule 15, however, does not apply in this situation. Accordingly, Lay is
entitled to no relief under Rule 15.
Despite his protestations, the court, as a protection to Lay, goes on to consider
whether doc. no. 457 presents a basis for relief under Rule 59(e).
In this filing, Lay argues he did not understand the meaning and consequences
of his failure to identify an alternative execution method for purposes of defendants’
summary judgment motion; that he was misled about the significance and import of
that issue; and that although other plaintiffs were visited by counsel who discussed
the election with them, Lay was kept in the dark. As a part of this document, Lay
submits a new election form in which he chooses: “Execution by firing squad as
described in Plaintiffs’ Third Amended Complaint paragraph 114(d).” Doc. no.
457- 2.
For the same reasons which apply to D. Grant, J. Grant, Jones and Postelle,
(see Part One, sections III(B)(1) and (2) of this order) Lay’s new election form is not
new evidence in any sense which would entitle him to relief under Rule 59. Nor is
relief necessary to prevent any clear error or manifest injustice with respect to Lay
or for any other reason. Lay previously had counsel in this action, which he
terminated. As he now appears pro se, he cannot complain that he was not privy to
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legal advice given to the other plaintiffs. As already covered in this order, the law
makes clear that a plaintiff must identify a proposed alternative means of execution
to bring an Eighth Amendment challenge to a state’s method of execution.
Moreover, the court basically put Lay on notice that this is the law.21 While Lay is
correct that he is in a category of his own because he now pursues his claims pro se,
he cannot use that status, and his resulting lack of access to legal advice, to obtain
relief from the court’s entry of summary judgment against him.

While Lay

obviously lacked the depth of understanding on these issues that counsel might have
provided to him, that is an inevitable disadvantage of a decision to proceed pro se, a
decision Lay made long ago.
Nothing stated in doc. no. 457 entitles Lay to relief from the judgment entered
against him.
III. Doc. No. 458
Doc. no. 458 is entitled “Plaintiff Wade Lay Acting Pro-Se Notice of Appeal
with Motion to Vacate Judgment Towards Wade Lay (Doc. No. 4) (with Brief in
Support).” This document includes a notice of appeal as well as a motion addressed
to this court, asking it to vacate the judgment it entered against Lay. As previously
stated, the motion is considered under Rule 59(e).
In this filing, Lay refers to his new election form. He asks the court to accept
his “amendment.” He argues he had no knowledge or understanding of the
significance of his original refusal to elect an alternative method of execution. He
complains that this court has manipulated the rules and laws against him.

He

complains that the warden has deprived him of pertinent documents necessary to his
litigation of this case. He complains about his exclusion from a purported meeting

21

See doc. no. 444 at 4, n.1 (citing legal authority for the proposition that the prisoner must identify
a feasible, readily implemental alternative procedure; emphasis in original).

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in which advice was given to the other plaintiffs by their attorneys. He expresses
his dissatisfaction with the fact that he is named as a plaintiff in the Third Amended
Complaint where an Eighth Amendment argument is raised which he has long
disavowed. He complains about his inclusion as one of six plaintiffs (now five) as
to whom the court has entered a Rule 54(b) certification. He asserts that the
certification and this court’s rulings in its summary judgment order are a mistake.
He complains that he was misguided by the federal public defender’s office, and
states that he was entrapped and given erroneous information about his election. He
complains that he has been unable to communicate with his family. He complains
that he was purposefully left in the dark about the issues related to his election form.
He argues that the court lacks jurisdiction. He argues the other plaintiffs knew the
significance of their election, but he did not. He complains that he is in a separate
category from the other plaintiffs because he proceeds pro se. He claims he is
suffering abuse and deprivations at the hands of corrections officers. In closing, Lay
asks the Court of Appeals and this court to vacate and reconsider the judgment
against him.
These issues, some of which have already been addressed, are rejected as a
basis for relief under Rule 59(e).
As for Lay’s displeasure at being joined with the other plaintiffs in the Third
Amended Complaint, the court has made clear to Lay, many times, that the Third
Amended Complaint defines the issues in this action for Lay along with all of the
other plaintiffs named (as Lay is) in that pleading. If, rather than proceed under the
Third Amended Complaint and the Eighth Amendment argument made in Count II,
Lay preferred to be dismissed from this action, he could have moved for dismissal,
something he has not done. Lay cannot wait for the court to determine a motion for
summary judgment, then, once the court rules against him, seek relief from that
judgment on the ground that he never wanted to allege an Eighth Amendment claim
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in the first place. Furthermore, the fact that Lay (with D. Grant, J. Grant, Jones and
Postelle) has lost on the claim alleged in Count II of the Third Amended Complaint,
leaves Lay no worse off than if he had not joined Count II.
Nothing in doc. no. 458 entitles Lay to relief from the judgment which has
been entered against him.
IV. Doc. No. 459
Doc. no. 459 (docketed as a notice) is entitled “In re: To Inform the Court of
the Amended Response to Doc. No. 448 with Exhibit-A, i.e., the Court’s Order Doc.
No. 444-1 Concerning the Alternative to Execution Protocols.”
The primary purpose of this document appears to be to inform the court that
Lay has filed a new election as part of his purported amended response to the court’s
order to identify an alternative method of execution. That order (doc. no. 444) noted
that Lay is included in the Third Amended Complaint, which pleads the existence of
alternative methods of execution. That order also tendered a form to Lay so that he
could advise the court as to which alternative method of execution he prefers, as a
known and available alternative method of execution.

For reasons already

explained, Lay’s proposed amended response, by which he asks the court to
disregard his earlier refusal to elect an alternative means of execution and substitute
an election of death by firing squad, entitles Lay to no relief under Rule 59(e).
Doc. no. 459 also raises other matters, already addressed. This document
refers to Lay being excluded from meetings between the other plaintiffs and their
lawyers. This document complains that Lay was deliberately given bad legal advice
regarding the election by the federal public defender’s office, which Lay says was
different from advice given other plaintiffs. Lay argues that his pro se status puts
him in a class of his own. He argues that he has been cut off from his family. He
argues that the court’s statement that the operative statement of the claims is the
Third Amended Complaint, entitles him to have been included in meetings with the
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other plaintiffs. He argues that the court should reverse its judgment as to him and
include him in the trial of this action.
Nothing stated in doc. no. 459 entitles Lay to relief from the judgment which
has been entered against him.
V. Doc. No. 460
Document no. 460 (docketed as a supplement to Lay’s other papers) is entitled
“Addendum to Plaintiff’s Response to Doc. No. 444, With Exhibit-A, Response
Filed at O.S.P. on August 05, 2021 at 2:15 P.M. Submitted to O.S.P. Legal Mail Rep
Sherry Day (See Attachment No. 1) and Doc. No. 447.”
This document states Lay’s concerns about interference with his filings or
mail and attaches an addendum to his “amended” election form. Defendants state
that they have not interfered with any filings or mailings and that all of Lay’s
submissions have reached the court and have been filed of record. The addendum
attached to this filing focuses on political and historical arguments. Doc. no. 460-1.
Lay argues that requiring an inmate to suggest a means of execution makes Lay
complicit in the process and is wrong. Lay made a similar argument in a filing which
he submitted with his original refusal to identify an alternative method of execution.
Doc. no. 448 at 11. That argument was rejected at the summary judgment stage and
is rejected again now. See discussion of the Five Plaintiffs’ request for a religious
exemption, supra at n. 14.
Nothing in doc. no. 460 entitles Lay to relief from the judgment which has
been entered against him.
VI. Doc. No. 463
This document (docketed as a supplement to Lay’s other papers) is entitled
“Notice of Appeal. Plaintiff Wade Lay’s Amended Response to Doc. No. 448–

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Plaintiff’s Response to Doc. No. 444, With Its Exhibit-A (Alternative to Execution
Protocols)–With Notice of Appeal.”22
Lay makes many arguments in this document, most of which have already
been considered and rejected. He argues he was blindsided about the significance
of the election form regarding his proposed alternative method of execution. He
argues he was given bad advice regarding the election form. He takes issue with the
court’s statement that the operative version of the complaint is the Third Amended
Complaint. He argues that if he is grouped with the other plaintiffs for purposes of
the claims alleged in the Third Amended Complaint, he should have been provided
with the same legal advice which was provided to them. He complains that the court
did not permit him to respond, out of time, to defendants’ motion for summary
judgment. See doc. no. 399 (order). He complains that his lack of access to a phone
and to his sister have kept him uninformed and show there is a conspiracy to deceive
him and to cause his execution.23
Lay’s “repeat” arguments are rejected.

To the extent Lay makes new

arguments in this filing, they likewise provide no basis for relief. Nothing in doc.
no. 463 entitles Lay to relief from the judgment which has been entered against him.
VII. Doc. No. 479
Doc. no. 479 is entitled “Plaintiff Wade Lay Motion for Stay of Execution and
Injunctive Relief (Brief in Support).”

22

Although doc. no. 463 was docketed as a supplement to Lay’s other moving papers, it appears
to be aimed, at least in part, at the Court of Appeals. Accordingly, the clerk is DIRECTED to
docket this filing as both a supplement to Lay’s moving papers filed in this court and as a notice
of appeal.
23

He also asks for an evidentiary hearing, here and in other documents. No sufficient basis for a
hearing has been shown and that request is denied.

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This document appears to be not so much a motion for relief from judgment
as a request for a stay of execution. Nevertheless, in an abundance of caution, the
court has considered it for both purposes.
Construed as a motion for relief from the judgment, this document, filed more
than twenty-eight days after the court’s entry of judgment against Lay, is evaluated
under Rule 60(b) Fed. R. Civ. P.24 This document refers to a purported conspiracy
among the courts and various officials. This document also presents what Lay
contends is the truth regarding matters relevant to the issue of his competency. That
said, this document emphatically states, with underlining, that it is not Lay’s
response to Ms. Kemp’s petition to be appointed as his next friend. This document
makes arguments related to Lay’s contentions that he is not receiving proper medical
treatment, and that his MP4 player and hot-pot were stolen and cannot be replaced.
(Lay has raised matters like this before and has always been advised that such
matters are outside the pleadings in this case.) None of the arguments made in doc.
no. 479 entitle Lay to relief from the judgment under Rule 60(b).
This document fares no better considered as a motion for a stay of execution.
The court has rejected Lay’s arguments for relief from the judgment which has been
entered against him. Accordingly, it is not clear what Lay would point to as an asyet-unaddressed basis for a stay of execution. The court also notes that it denied a
preliminary injunction in this case long ago, a ruling which was affirmed by the
Court of Appeals and the Supreme Court. No basis for a stay of Lay’s execution or
for a hearing on this issue has been established.

24

If Lay were to show that he complied with the prison mailbox rule so that Rule 59 applied to
doc. no. 479, no relief would be granted under Rule 59. Thus, the result reached in this order
would be the same under Rule 59 or Rule 60.

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VIII. Conclusion: Part Two
For the foregoing reasons, none of plaintiff Wade Lay’s motions or other postjudgment filings (doc. nos. 457, 458, 459, 460, 463, 479) entitle him to relief from
the judgment which has been entered against him or to any other relief. These
motions and post-judgment filings are therefore DENIED.
IT IS SO ORDERED this 12th day of October, 2021.

14-0665p122 rev _.docx

29