UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SEDLEY ALLEY,

)

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Plaintiff,

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v.

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Case No. 3:06-0340

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Judge Trauger

GEORGE LITTLE, in his official capacity as

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Tennessee’s Commissioner of Correction;

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RICKY BELL, in his official capacity as Warden,

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Riverbend Maximum Security Institution;

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JOHN DOE PHYSICIANS 1-100;

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JOHN DOE PHARMACISTS 1-100;

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JOHN DOE MEDICAL PERSONNEL 1-100;

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JOHN DOE EXECUTIONERS 1-100; and

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JOHN DOES 1-100,

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Defendants.

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MEMORANDUM Pending before the court is the Motion for Preliminary Injunction filed by the plaintiff, Sedley Alley (Docket No. 23), to which defendants George Little and Ricky Bell have responded (Docket No. 24), and the plaintiff has replied (Docket No. 25). For the reasons discussed herein, the plaintiff’s motion will granted.

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FACTS and PROCEDURAL HISTORY The plaintiff is a condemned inmate at Riverbend Maximum Security Institution in Nashville, Tennessee.1 His execution has been scheduled for 1:00 a.m. on May 17, 2006. In 1989, the Tennessee Supreme Court affirmed the plaintiff’s death sentence. On January 14, 2004, that court set for the plaintiff a June 3, 2004 execution date. On May 19, 2004, the United States District Court for the Western District of Tennessee granted his request for a stay of execution based on a then-pending Sixth Circuit decision regarding whether to treat a Rule 60(b) motion as a habeas petition. (See Docket No. 16 at 4.) Following the resolution of these issues, the Tennessee Supreme Court, on March 29, 2006, set the plaintiff’s current execution date. Using § 1983 as the vehicle for his claims, he brought a challenge to Tennessee’s lethal injection protocol on April 11, 2006. On May 2, 2006, this court ordered the case held in abeyance pending the United States Supreme Court’s resolution of Hill v. McDonough, which will address whether an inmate may use § 1983 as a vehicle for such claims. (See Docket No. 22.) The plaintiff now seeks injunctive relief from his execution pending the Supreme Court’s disposition in Hill. (See Docket No. 23 at 1.)
ANALYSIS
1A full recitation of the facts is provided in this court’s Memorandum of May 2, 2006. (See Docket No. 21) Unless otherwise indicated, all facts here have been drawn from the plaintiff’s Complaint (Docket No. 1) and from his Response to Motion to Dismiss of Defendants Little and Bell (Docket No. 19).
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The defendants claim that an injunction is unnecessary because Hill “will not address the validity of any lethal injection protocol, much less Tennessee’s.” (See Docket No. 24 at 1.) Before this court may analyze the plaintiff’s challenge to Tennessee’s lethal injection protocol, however, it first must ensure that it has subject-matter jurisdiction over his claims. See Ins. Corp. of Ireland v. Compagnie de Bauxites de Guinee, 456 U.S. 694, 702 (1982). While the defendants urge the court to go directly to the merits of the plaintiff’s § 1983 claim without pausing to consider whether his challenge instead should be construed as a second habeas petition, “no action of the parties can confer subject-matter jurisdiction upon a federal court.” See id.
Were the plaintiff’s challenge to be converted to a second habeas petition, this court would lack jurisdiction over it and would be required to transfer it to the Sixth Circuit for appellate review. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (“[W]hen a second or successive petition for habeas relief is filed in the district court without § 2244(b)(3) authorization from this court, the district court shall transfer the document to this court pursuant to 28 U.S.C. § 1631.”); see also In re Sapp, 118 F.3d 460, 463 (6th Cir. 1997) (noting that a district judge had properly determined that, if an inmate’s method-of-execution challenge were to be characterized as a second habeas petition, the district court would lack jurisdiction over the claim). As explained in this court’s May 2, 2006 Memorandum, this court must await guidance from the Supreme Court before determining whether such a conversion is appropriate in this case and, consequently, whether it has jurisdiction over the plaintiff’s challenge. (See Docket No. 21 at 6-7 (holding this case in abeyance pending the resolution of Hill).)
Accordingly, a preliminary injunction is required in order to maintain the status quo pending the Supreme Court’s decision. See Hill v. Crosby, 126 S. Ct. 1189, 1190 (2006)
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(staying an inmate’s execution pending the Supreme Court’s determination as to whether § 1983 was a proper vehicle for his claims); see also Rutherford v. Crosby, 126 S. Ct. 1191, 1191 (2006) (staying an inmate’s execution pending the Supreme Court’s consideration of his petition for certiorari).2
A brief review of the four-factor analysis traditionally employed when considering whether to grant a preliminary injunction leads to the same conclusion. These factors include (1) the likelihood that the moving party will be irreparably harmed absent a preliminary injunction; (2) the prospect that others will be harmed if the court grants the preliminary injunction; (3) the public interest in granting the preliminary injunction; and (4) the likelihood that the party seeking the preliminary injunction will prevail on the merits of his claim. See Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991). These factors are not prerequisites that each must be met, but rather are “interrelated considerations that must be balanced together.” Id. at 153. The Sixth Circuit has recognized that courts applying this test to motions for preliminary injunctions must make decisions based upon “incomplete factual findings and legal research.” Id. (internal quotation omitted). Bearing this obstacle in mind, the court now turns to an analysis of each of the four factors.
Detailed discussion of the first factor clearly is not necessary in execution-related cases such as this one. Absent a preliminary injunction, the plaintiff will be executed on May 17, 2006, just weeks before a likely decision in Hill, which could give him the right to pursue the
2Unlike other defendants confronted with challenges that are identical or nearly identical to the one in this case, the defendants here do not consent to an injunction pending Hill but, instead, press for the plaintiff’s execution to occur as scheduled. Cf. Jackson v. Taylor, No. 06300-SLR (D. Del. May 9, 2006) (unpublished); Roane v. Gonzales, No. 05-2337 (D.D.C. Feb. 24, 2006) (unpublished).
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challenge the defendants now seek to dismiss. See Jackson v. Taylor, No. 06-300-SLR ¶ 4 (D. Del. May 9, 2006) (noting that the Supreme Court is expected to issue its Hill decision by June 30, 2006). The plaintiff’s case thus presents the ultimate demonstration of irreparable harm.
Next the court examines the harm to others that might result from granting this injunction. The state will incur costs from delaying the execution, and the living relatives of the plaintiff's victim may be distressed at the delay. However, in light of the fact that the Supreme Court is expected to issue an opinion in Hill before June 30, 2006, the potential harm from a few weeks' delay is far outweighed by the potential harm to the plaintiff if this injunction is not granted. See Jackson, No. 06-300-SLR ¶ 4.
Turning to the next factor, the public does, as the defendant asserts, have an interest in executing sentences. (See Docket No. 24 at 5.) However, there is an interest at stake in this case that is at least as great as Tennessee's interest in seeing the plaintiff’s death sentence carried out: the protection the Eighth Amendment affords each citizen of the United States. See DePew v. Anderson, 311 F.3d 742, 748 (6th Cir. 2002) (“[i]t is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights”) (citing Reid v. Covert, 354 U.S. 1, 45-46, (1957) (Frankfurter, J., concurring)). Taking into account the detriment caused by delaying the public's "moral judgment," see Calderon v. Thompson, 523 U.S. 538, 556 (1998), the public interest weighs in favor of maintaining the status quo until the Supreme Court rules.
The court now moves to a brief examination of the plaintiff’s ability to prevail on the merits of his challenge to Tennessee’s lethal injection protocol. In cases like this one, where the other three factors militate in the plaintiff’s favor, a district court is within its discretion to issue a preliminary injunction if the merits of his case “present a sufficiently serious question to justify
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further investigation.” See In re DeLorean Motor Co., 755 F.2d 1223, 1230 (6th Cir. 1985); Roth v. Bank of the Commonwealth, 583 F.2d 527, 537-38 (6th Cir.1978), cert. dismissed, 442 U.S. 925 (1979). One such “serious question” is at issue here. The plaintiff, by providing expert testimony that the current lethal injection protocol causes excruciating deaths, has made an adequate showing on the merits of his Eighth and Fourteenth Amendment claims to survive his relatively light burden. The preliminary injunction stage is not the time to weigh the plaintiff’s expert against the defendants’. It is in order to preserve that dispute—and the unanswered jurisdictional issue pending in Hill—that this court must grant a preliminary injunction.
Finally, it is important to note that any alleged “undue delay” on the part of the plaintiff does not warrant denial of the preliminary injunction. The plaintiff brought his first habeas petition before the federal courts in 1998 and, subsequently, brought a Rule 60(b) petition that was eventually held to be a second habeas attempt. See Alley v. Bell, 307 F.3d 380 (6th Cir. 2002) (rehearing denied Dec. 20, 2002); Alley v. Bell, 405 F.3d 371 (6th Cir. 2005) (remanding the case to the district court to determine whether the motion could be considered a proper 60(b) motion); Alley v. Bell, No. 04-5596 (W.D. Tenn, Nov. 28, 2005) (motion to alter or amend judgment denied Mar. 22, 2006) (unpublished). While those actions were pending, the plaintiff’s execution was stayed, and accordingly, it was not yet determined that the plaintiff would actually be executed. In fact, the plaintiff may well have faced ripeness issues had he challenged the lethal injection protocols before that determination was made. See MartinezVillareal v. Stewart, 118 F.3d 628, 630 (9th Cir. 1997), aff’d, 523 U.S. 637, 640 (1998) (holding that an Eighth Amendment competency challenge was premature where the execution had been
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stayed pending other challenges).3 The plaintiff cannot be said to have unduly delayed by failing to challenge his method of
execution before it was certain that the execution in the challenged manner would occur. The record demonstrates that soon after learning that an execution would in fact occur—seven days after the Western District of Tennessee denied his motion to alter or amend judgment on his Rule 60(b) motion and just one day after the Tennessee Supreme Court set a new execution date—the plaintiff wrote Commissioner George Little, expressing his objections to the lethal injection protocol. (Docket No. 25, Ex. 1.) After failing to receive a response, the plaintiff filed this action on April 11, 2006. Under such circumstances, it would be strange jurisprudence to dismiss this action for “undue delay.”
Accordingly, given the potentially dispositive nature of the Supreme Court’s upcoming decision in Hill, as well as the fact that traditional preliminary injunction analysis weighs in favor of its being granted, a preliminary injunction will issue in this case.
CONCLUSION The plaintiff’s Motion for Preliminary Injunction will be granted and his execution stayed pending further orders of the court.
3The lack of “undue delay” in this case is well illustrated by a comparison to In re Sapp, 118 F.3d 460, 464 (6th Cir. 1997). In that case, which was also a § 1983 action, the Sixth Circuit upheld the district court's determination that it lacked subject matter jurisdiction. Id. In addition, the court noted that the plaintiff had unduly delayed in bringing his action. The court projected that the plaintiff could have brought his claim anywhere between ten to fifteen years before he did so. Id. Presumably, the plaintiff before the Sixth Circuit in that case did not face the ripeness issues that Alley would have faced had he brought his Eighth Amendment challenge while his habeas petitions were outstanding.
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An appropriate order will enter. _______________________________ ALETA A. TRAUGER United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SEDLEY ALLEY,

)

)

Plaintiff,

)

)

v

)

)

GEORGE LITTLE, in his official capacity as )

Tennessee’s Commissioner of

)

Correction;

)

)

RICKY BELL, in his official capacity as

)

Warden, Riverbend Maximum

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Security Institution;

)

)

JOHN DOE PHYSICIANS 1-100;

)

)

JOHN DOE PHARMACISTS 1-100;

)

)

JOHN DOE MEDICAL PERSONNEL 1-100; )

)

JOHN DOE EXECUTIONERS 1-100;

)

)

JOHN DOES 1-100,

)

)

Defendants.

)

No. ________________ Death Penalty Case Execution Date May 17, 2006, 1:00 a.m.

C O M P L A I N T

INTRODUCTION

1. On May 17, 2006 at 1:00 a.m., the State of Tennessee intends to kill Plaintiff Sedley

Alley by lethal injection. To kill Mr. Alley, the State intends to use a protocol whereby he would

be injected with a dose of sodium thiopental, then with a dose of pancuronium bromide (Pavulon),

and third with a dose of potassium chloride. The use of this protocol is unconstitutional. The sodium

thiopental does not sufficiently anesthetize any individual. The use of pancuronium bromide is

arbitrary, serves no legitimate interest, unreasonably risks the infliction of torture, and, at bottom,

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offends the dignity of humanity: Indeed, it cannot be used in Tennessee to kill a dog. Its use violates equal protection. The potassium chloride does not stop the heart. The use of this mixture of chemicals causes a painful death experienced without total unconsciousness. This Court should, inter alia, enter a judgment declaring the use of pancuronium bromide unconstitutional and enjoining Defendants from using, seeking to obtain, ordering, writing a prescription, writing a physician’s order, prescribing, dispensing, or in any other manner transferring to Defendants Bell or any other Defendants involved in the execution process pancuronium bromide in any form whatsoever. This Court should also declare the protocol unconstitutional and enjoin its use as it is unconstitutional under the Eighth, Ninth, and Fourteenth Amendments.
PARTIES 2. Plaintiff Sedley Alley is a condemned inmate residing at Riverbend Maximum Security Institution, Nashville, Davidson County, Tennessee. 3. Defendant George Little is the Commissioner of the Tennessee Department of Corrections. Plaintiff sues Commissioner Little in his official capacity. Defendant is a state actor acting under color of state law, and his actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.1
1 In Abdur’Rahman v. Sundquist, Abdur’Rahman sued the Governor, Commissioner of the Department of Corrections, and Warden Bell challenging the lethal injection protocol. The Tennessee Supreme Court upheld the Defendants’ position in Abdur’Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005), and the state continues to defend that judgment before the United States Supreme Court, U.S.No. 05-1036 (cert. pending). Even so, on March 30, 2006, Plaintiff filed with Defendant Little objections to the lethal injection protocol, and requested a response by April 5, 2006. One was not provided. On April 6, Plaintiff again requested a response. The Commissioner followed with a letter stating that a “response will be provided, as soon as possible, following consultation with the Attorney General’s office.” As of the filing of this complaint, however, Plaintiff has yet to receive the response which he requested last month.
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4. Defendant Ricky Bell is the Warden of Riverbend Maximum Security Institution. Bell is directly in charge of executing Plaintiff. Plaintiff sues Warden Bell in his official capacity. Defendant is a state actor acting under color of state law, and his actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
5. Defendants John Doe Physicians 1-100 are any and all medical doctors involved in the prescription, procurement and/or administration of sodium thiopental, pancuronium bromide, and/or potassium chloride for use upon Plaintiff without the purpose to heal, but to cause Plaintiff’s death. Such Defendants are state actors acting under color of state law, and their actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
6. Defendants John Doe Pharmacists 1-100 are any and all persons involved in procuring, prescribing, dispensing, and/or administering sodium thiopental, pancuronium bromide, and/or potassium chloride for use upon Plaintiff without the purpose to heal, but to cause Plaintiff’s death. Such Defendants are state actors acting under color of state law, and their actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
7. Defendants John Doe Medical Personnel 1-100 are any and all persons involved in using, preparing, or otherwise handling Plaintiff or sodium thiopental, pancuronium bromide, and/or potassium chloride in any attempt to administer sodium thiopental, pancuronium bromide, and/or potassium chloride upon Plaintiff without the purpose to heal, but to cause Plaintiff’s death. Such Defendants are state actors acting under color of state law, and their actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
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8. Defendants John Doe Executioners 1-100 are any and all persons involved in using, preparing, or otherwise handling Plaintiff or sodium thiopental, pancuronium bromide, and/or potassium chloride in any attempt to administer sodium thiopental, pancuronium bromide, and/or potassium chloride upon Plaintiff without the purpose to heal, but to cause Plaintiff’s death. Such Defendants are state actors acting under color of state law, and their actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
9. Defendants John Does 1-100 are any and all other persons who are, or would be, involved in the prescription, procurement, dispensing and/or administration of sodium thiopental, pancuronium bromide, and/or potassium chloride for use upon Plaintiff without the purpose to heal, but to cause Plaintiff’s death; or otherwise involved in the actual execution of Sedley Alley through the use of sodium thiopental, pancuronium bromide, and/or potassium chloride. Such Defendants are state actors acting under color of state law, and their actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
JURISDICTION/VENUE 10. In this action, Plaintiff invokes 28 U.S.C. §§1331, 2201, and 2202; 42 U.S.C.§1983; and the Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 11. Venue is proper in this district because the Defendants would intend to procure and inject Plaintiff with chemicals and execute him in the Middle District of Tennessee. 28 U.S.C. §1391.
FACTS 12. The State of Tennessee, through Defendants, intends to execute Plaintiff by lethal injection on May 17, 2006 at 1:00 a.m. using the protocol described infra.
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Defendants’ Execution Protocol 13. The entire Tennessee Department of Correction lethal injection protocol is set forth in its “Execution Manual.” 14. Under the protocol, an execution by lethal injection requires the participation of the Commissioner, the Warden, the Deputy Warden, the Administrative Assistant, the Death Watch Supervisor and assigned officers, a Chaplain, a Medical Doctor and associate, an “Execution Team,” an “IV Team,” and an “Extraction Team.” 15. The Officer in Charge and/or the Assistant Officer in Charge is responsible for the care and maintenance of the Death Chamber and all appliances and equipment, the training of the Execution Team, and carrying out the execution of the condemned prisoner. 16. The Officer in Charge and assistant shall assemble the Execution Team in the Death Chamber four (4) days prior to a scheduled execution to prepare and test all appliances and equipment for the scheduled execution. 17. The state, claiming a privilege under T.C.A. § 10-7-504(h), has refused to reveal the identities of the various individuals involved in an execution other than the Warden. 18. There is no discussion in the protocol of the qualifications or training of the Officer in Charge or his assistant. 19. It appears that the actual lethal injection procedure is carried out entirely by the three Teams mentioned above. 20. The Execution Team consists of one (1) Officer in Charge, one (1) Assistant Officer in Charge, and seven (7) members. 21. There is no description of the “IV Team” or the “Extraction Team.”
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22. The protocol is silent on how these teams are to be selected, or whether members of these teams shall have any specialized training or qualifications.
23. The protocol prescribes the sequence of events surrounding an execution as follows: At the appointed hour, the Warden or Assistant Warden and the Extraction Team will remove the inmate from his cell, secure him on the gurney, and take him to a “designated area” in the “death chamber,” a room where the inmate is to be killed.
24. IV Technicians will insert a catheter into each arm, attach the tubing, and start an IV consisting of saline solution. The IV team will then leave the execution chamber and return to the holding cell area.
25. The physician is to be available in the designated waiting area and able to perform a cutdown procedure if the IV Technicians are unable to find a vein that is adequate enough to insert the catheters.
26. The physician, in other words, is not present during the catheterization process, but is available to perform a “cutdown,” a surgical procedure, if the IV Team, with its indeterminate background and unspecified training, is unable to successfully place the IV’s into the veins in both of the Plaintiff’s arms.
27. The protocol is equally silent as to the physician’s qualifications to perform this function.
28. After the catheterization process is completed, the witnesses will be secured, the closed circuit television camera and audio system will be activated, and the Commissioner will be contacted.
29. The Warden then signals the execution to proceed and the injection procedure will
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continue until all the chemicals have been injected into the condemned and the person is presumed dead.
30. The Execution Manual does not describe the physical configuration of the death chamber or the lethal injection device.
31. The drugs to be used in the lethal injection are as follows, in the following order and amounts:
a. Sodium Pentothal [a/k/a Sodium Thiopental] (50 cc: 5 grams diluted by 48 ml of diluent)
b. Saline (50 cc) c. Pancuronium bromide [a/k/a Pavulon] (50 cc: 5-10 cc vials containing 1 mg pancuronium bromide) d. Pancuronium bromide [a/k/a Pavulon] (50 cc: 5-10 cc vials containing 1 mg pancuronium bromide) e. Saline (50 cc) f. Potassium Chloride (50 cc)(injectable solution) g. Potassium Chloride (50 cc)(injectable solution) 32. The administration of all such drugs is to occur within a span of 2-2.5 minutes.
Defendants’ Procurement Of Drugs For Use Upon Plaintiff 33. To obtain the drugs used to kill Plaintiff, Defendant Bell will request them through Defendant(s) employed by the Department of Corrections, and such Defendant(s) will seek to secure such drugs from some pharmacy or source presently unknown to Plaintiff. 34. A physician’s order will be written by one or more of the Defendant(s) asking for the
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dispensing of the sodium thiopental, pancuronium bromide, and potassium which Defendants would intend to administer to Plaintiff to cause his death. It is unclear that such “physician’s order” is actually written by a physician who may prescribe medicine.
35. One or more of the Defendant(s) will then deliver or dispense the drugs to Defendants, including Defendant Bell, who, following receipt, will, at some point before execution, prepare the sodium thiopental, pancuronium bromide, and potassium chloride for syringes to be used upon Plaintiff.
Anesthesia And Consciousness With Sodium Thiopental 36. Anesthesia is the process of blocking the perception of pain and other sensations, creating insensibility to pain. 37. Sodium Thiopental is a short acting barbiturate. 38. In the Tennessee protocol, its alleged purpose is to cause anesthesia. 39. Induction of anesthesia using thiopental occurs quickly, but its effect wears off in a matter of minutes. 40. Sodium thiopental is used as an anesthetic in surgery because it enables an anesthesiologist to quickly awaken a patient should complications arise. 41. There are differing levels of anesthesia, and thus consciousness. 42. The human body reacts to various stimuli differs depending upon the level of anesthesia. 43. For example, when a person is administered sodium thiopental, a person will continue to have the following states of consciousness at the following serum levels of thiopental:
a. 0-13 mg/l: Consciousness
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b. 13-18 mg/l: Loss of purposeful movement in response to verbal stimulation; c. 23-28 mg/l: Loss of purposeful movement in response to tetanic nerve stimulation; d. 33-46 mg/l: Loss of purposeful movement in response to trapezius muscle squeeze; e. 45-57 mg/l: Loss of movement in response to larangoscopy; f. 63 mg/l >: Loss of movement in response to intubation See Leonidas Koniaris et al, Inadequate Anaesthesia In Lethal Injection For Execution, 365 Lancet 1412-1414 (2005). 44. In fact, one study establishes that, upon administration of thiopental, EEG brain activity peaks at 13.3 mg/l, after which it drops back to normal activity at 31.2 mg/l, and zero brain waves per second occurs only with serum levels above 50 mg/l. See Buhrer et al., Thiopental Pharmacodynamics, Anesthesiology 77: 226-236 (1992). 45. Sodium thiopental as used in the Tennessee protocol does not adequately anesthetize a person prior to the introduction of pancuronium bromide and potassium chloride. 46. This is confirmed by findings made as a result of the autopsy of Robert Coe, whose serum thiopental levels were 10 mg/l, which as recent research establishes, is inadequate to establish unconsciousness. See Leonidas Koniaris et al, Inadequate Anaesthesia In Lethal Injection For Execution, 365 Lancet 1412-1414 (2005). 47. As a result, Plaintiff would be inadequately anesthetized under the Tennessee protocol, and as shown infra, would experience a gruesome and horrifying death through the painful use of pancuronium bromide followed by the introduction of potassium chloride.
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48. The lack of inadequate anesthesia would apparently be even more pronounced in Plaintiff than in Robert Coe, as Mr. Coe only weighed 179.5 pounds when he was executed, and Plaintiff weighs significantly more than 200 pounds.
Pancuronium Bromide (Pavulon) 49. Pancuronium Bromide, marketed under the name Pavulon, is a neuromuscular blocking agent which causes paralysis of the skeletal muscles of an individual. 50. Pancuronium Bromide does not affect the brain or nervous system, nor does it block the actual reception of nerve impulses in the brain or the passage of such impulses within the brain. 51. Pancuronium Bromide does not affect consciousness or the sensation of pain or suffering. 52. An individual under the influence of pancuronium bromide, though paralyzed, still has the ability to think, to be oriented to where he is, to experience fear or terror, to feel pain, and to hear. 53. While pancuronium bromide paralyzes the diaphragm to prevent breathing, it does not affect the heart muscle. 54. Pancuronium bromide causes death by asphyxiation or suffocation. 55. If an individual is not properly anesthetized when injected with pancuronium bromide, he will consciously experience extreme pain while being completely paralyzed. 56. In this state, the person will undergo the terrorizing and excruciating experience of suffocation without the ability to move or to express the pain and suffering which he is experiencing as he is being suffocated. 57. Because pancuronium bromide paralyzes all skeletal muscles including facial muscles
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and those used to speak or communicate through noises, an observer cannot detect, from outward appearance, any expression of pain, horror, or suffering experienced because of the use of pancuronium bromide.
58. Moreover, the paralyzing effect of pancuronium bromide also prevents any expression of the pain, horror, or suffering from any other source, such as potassium chloride. See infra, ¶¶ 59-67, incorporated by reference.
59. Death caused by the use of pancuronium bromide is gruesome, horrible, and painful. The Use Of Pancuronium Bromide Is Arbitrary,
Unreasonable, Degrading To Human Dignity, And Serves No Legitimate Interest 60. Because pancuronium bromide causes paralysis, suffocation, and the suffering
attendant to such paralysis and suffocation, in 2001, Tennessee declared in the “Nonlivestock Humane Death Act” (Tenn. Code Ann. 44-17-301 et seq.) that pancuronium bromide cannot be used to euthanize animals, because its use is not humane.
61. Where the use of pancuronium bromide is not “humane” to use on non-humans, it is arbitrary to claim that its use is “humane” on humans, and its use on humans to cause death violates basic precepts of human dignity.
62. The use of pancuronium bromide in execution is arbitrary. 63. The use of pancuronium bromide in execution is unreasonable. 64. The use of pancuronium bromide in execution serves no legitimate state interest and is not narrowly tailored to any compelling state interest. 65. As Chancellor Ellen Hobbs Lyle has explained elsewhere: [T]he use of Pavulon is . . . unnecessary. . . [T]he State [has] failed to demonstrate any reason for its use. The record is devoid of proof that the Pavulon is needed. Thus, the Court concludes that . . . the State’s use of Pavulon is . . . in legal terms
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‘arbitrary.’ Abdur’Rahman v. Sundquist, No. 02-2236-III, In The Chancery Court For The State Of Tennessee, Twentieth Judicial District, p. 13 (June 2, 2003).
Potassium Chloride 66. As used in Tennessee’s execution protocol, potassium chloride is supposed to cause cardiac arrest. 67. The administration of potassium chloride is extremely painful, because it activates all the nerve fibers inside the venous system. 68. Because veins are replete with nerve fibers, the administration of potassium chloride into the veins creates extreme pain. 69. In the absence of adequate anesthesia, the introduction of potassium chloride, like the introduction of pancuronium bromide, creates extreme and excruciating pain. 70. Under Tennessee’s protocol, 200 mEq of potassium chloride are introduced into the body through a vein. 71. This method of administering this amount of potassium chloride is inadequate to stop the heart. 72. This is confirmed by the autopsy of Robert Coe, which demonstrates that his vitreous potassium was 9 mEq/l (9mmol/l). 73. It actually takes a serum concentration of more than 16 mEq/l (16mmol/l) of potassium to arrest the heart. 74. The failure to arrest Plaintiff’s heart would likely be even more pronounced vis-avis Robert Coe, as Plaintiff is significantly larger than Mr. Coe, assuming Plaintiff’s larger blood
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volume and body surface area. Death Under Tennessee’s Lethal Injection Protocol
75. The person being lethally injected under Tennessee’s protocol thus actually dies from the suffocation caused by the pancuronium bromide and the resulting anoxic state, and not from cardiac arrest due to the administration of potassium chloride.
76. Because the person being lethally injected under Tennessee’s protocol is not adequately anesthetized, he or she experiences the sensation and horror of suffocation from the pancuronium bromide, as well the excruciating pain associated with the introduction of potassium chloride.
CLAIMS FOR RELIEF A.
Violation Of Fourteenth Amendment: Due Process Of Law (Pancuronium Bromide) 77. Plaintiff incorporates paragraphs 1-76 in their entirety by reference. 78. The use of pancuronium bromide is arbitrary, unreasonable, and serves no legitimate
or compelling state interest. The use of pancuronium bromide shocks the conscience and is inhumane. The use of pancuronium bromide violates Plaintiff’s right to due process of law under the Fourteenth Amendment.
79. It is well-settled under the due process clause of the Fourteenth Amendment that a state cannot act in a way which fails to serve a legitimate state interest. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249 (1985). Likewise, when fundamental interests are involved (such as life) the state must act in a way that is necessary to promote a compelling state interest. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000).
80. Without question, there is no legitimate interest in the use of pancuronium bromide 13
Case 3:06-cv-00340 Document 1 Filed 04/11/2006 Page 13 of 19

upon Plaintiff or any other human being. As Chancellor Ellen Hobbs Lyle has held: [T]he use of Pavulon is . . . unnecessary. . . [T]he State [has] failed to demonstrate any reason for its use. The record is devoid of proof that the Pavulon is needed. Thus, the Court concludes that . . . the State’s use of Pavulon is . . . in legal terms ‘arbitrary.’
Abdur’Rahman v. Sundquist, No. 02-2236-III, In The Chancery Court For The State Of Tennessee, Twentieth Judicial District, p. 13 (June 2, 2003).
81. Further, use of pancuronium bromide violates substantive due process for the separate reason that its use shocks the conscience. See Rochin v. California, 342 U.S. 165 (1952). Without question, under Tennessee’s “Nonlivestock Animal Humane Death Act,” pancuronium bromide cannot be used to euthanize a non-livestock animal in Tennessee. Tenn.Code Ann. §44-17-301 et seq, including §44-17-303(c)(any substance which “acts as a neuromuscular blocking agent . . . may not be used on any nonlivestock animal for the purpose of euthanasia.”). If pancuronium bromide can’t be used to kill a dog or a cat because it is not “humane,” it shocks the conscience to think that it can be used in an attempt to kill a human being.
B. Violation Of Eighth And Fourteenth Amendments (Pancuronium Bromide) 82. Plaintiff incorporates paragraphs 1-81 in their entirety by reference. 83. The use of pancuronium bromide is inhumane, violates the dignity of the human person, and is contrary to the evolving standards of decency. 84. The use of pancuronium bromide violates Plaintiff’s right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. 85. The Eighth and Fourteenth Amendments prohibit punishments which do not comport with the evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles,
14
Case 3:06-cv-00340 Document 1 Filed 04/11/2006 Page 14 of 19

356 U.S. 86 (1959). 86. In 2001, the State of Tennessee declared as inhumane – and illegal – the use of
pancuronium bromide or any other neuromuscular blocking agent on nonlivestock animals. Tenn. Code Ann. §44-17-303(c); 44-17-303(j)(criminal sanctions for violation of Humane Death Act). A fortiori, the legislative judgment of Tennessee establishes the fundamental baseline concerning the evolving standards of decency applicable to human beings. Especially where the Tennessee Legislature passed the Nonlivestock Humane Death Act in 2001 – after Defendants’ established their protocol – the very existence of the Act establishes an Eighth Amendment violation of the evolving standards of decency.
87. Further, where Tennessee has already determined that use of pancuronium bromide to kill animals is not “humane,” using such a substance to kill a human being is not humane either. It is likewise degrading to humanity itself to allow the Defendants to do what they would intend to do. It sends a message that the State can treat human being with the type of contempt and cruelty that is not befitting an animal.
C. Violation Of Fourteenth Amendment: Equal Protection (Pancuronium Bromide)
88. Plaintiff incorporates paragraphs 1-87 in their entirety by reference. 89. The use of pancuronium bromide upon Plaintiff while its use is legally prohibited for use on animals because it is not “humane,” is inhumane, arbitrary, unreasonable, and serves no legitimate interest, nor is it narrowly tailored to serve a compelling state interest. The use of pancuronium bromide violates Plaintiff’s right to the equal protection of the laws under the Fourteenth Amendment. 90. By procuring and using pancuronium bromide upon Plaintiff, Defendants would
15
Case 3:06-cv-00340 Document 1 Filed 04/11/2006 Page 15 of 19

invidiously discriminate against Sedley Alley: Under Tenn. Code Ann. §44-17-303(h) & §39-14201(3), the State of Tennessee has protected the following animals against the use of pancuronium bromide: any “pet normally maintained in or near the household or households of its owner or owners, other domesticated animal, previously captured wildlife, an exotic animal, or any other pet, including but not limited to, pet rabbits, a pet chick, duck, or pot bellied pig that is not classified as "livestock" pursuant to this part.” Tenn.Code Ann.§44-17-201(3). There is no legitimate basis – let alone a compelling state reason – for Tennessee to provide dogs, cats, chicks, ducks, and pot-bellied pigs more protection from cruelty than it would Sedley Alley, who is a human being who retains a fundamental right to life. This classification is arbitrary, unreasonable, and serves no legitimate interest, let alone a compelling state interest. Defendants’ procurement and use of pancuronium bromide is therefore unconstitutional.
D. Violation Of Eighth and Fourteenth Amendments: Cruel And Unusual Punishment
91. Plaintiff incorporates paragraphs 1-90 in their entirety by reference. 92. Defendants’ use of sodium thiopental, pancuronium bromide, and potassium chloride under the Tennessee protocol causes unnecessary pain and suffering and does not conform with evolving standards of decency. 93. Defendants’ use of the protocol violates the dignity of the human person and Plaintiff’s right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments.
E. Violation Of Eighth and Fourteenth Amendments: Cruel And Unusual Punishment
94. Plaintiff incorporates paragraphs 1-93 in their entirety by reference.
16
Case 3:06-cv-00340 Document 1 Filed 04/11/2006 Page 16 of 19

95. Defendants’ inadequate procedures in the use of sodium thiopental, pancuronium bromide, and potassium chloride under the Tennessee protocol creates the risk of unnecessary pain and suffering and does not conform with evolving standards of decency.
96. Defendants’ use of the protocol violates the dignity of the human person and Plaintiff’s right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments.
F. Violation Of Ninth Amendment 97. Plaintiff incorporates paragraphs 1-96 in their entirety by reference. 98. Defendants’ use of sodium thiopental, pancuronium bromide, and potassium chloride under the Tennessee protocol causes unnecessary pain and suffering and torture. 99. Defendants’ use of the protocol violates the dignity of the human person and Plaintiff’s right to human dignity under the Ninth Amendment.
PRAYER FOR RELIEF WHEREFORE, based on the foregoing complaint (paragraphs 1-99 incorporated herein by reference) this Court should do the following: 100. Enter an order granting a declaratory judgment to Plaintiff declaring unconstitutional the use of pancuronium bromide by Defendants under the circumstances, and prohibiting Defendants from using, seeking to obtain, ordering, writing a prescription, writing a physician’s order, prescribing, dispensing, or in any other manner transferring to Defendants Bell or any other Defendants involved in the execution process pancuronium bromide in any form whatsoever. 101. Enter an order granting a declaratory judgment to Plaintiff declaring unconstitutional the use of pancuronium bromide by Defendants under the circumstances, and enjoin Defendants
17
Case 3:06-cv-00340 Document 1 Filed 04/11/2006 Page 17 of 19

from seeking to execute, or executing, Plaintiff using the above-described protocol which employs pancuronium bromide.
102. Enter an order granting a declaratory judgment to Plaintiff declaring unconstitutional the execution protocol because it utilizes inadequate anesthesia through the use of sodium thiopental, and grant an injunction against the use upon Plaintiff of this execution protocol which uses sodium thiopental.
103. Enter an order granting a declaratory judgment to Plaintiff declaring unconstitutional the execution protocol, and grant an injunction against the use of the protocol upon Plaintiff.
104. Grant further relief that this Court finds necessary and just. Respectfully submitted,
Paul R. Bottei Kelley J. Henry Christopher M. Minton Gretchen L. Swift Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 FAX (615)736-5265
By: /s/ Paul R. Bottei
CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served upon the Defendants Little and Bell this 11th day of April, 2006.
18
Case 3:06-cv-00340 Document 1 Filed 04/11/2006 Page 18 of 19

/s/ Paul R. Bottei
19 Case 3:06-cv-00340 Document 1 Filed 04/11/2006 Page 19 of 19

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SEDLEY ALLEY, Plaintiff,
v GEORGE LITTLE, et al.,
Defendants.

)

)

)

)

No. 3:06-340

)

Judge Trauger

)

)

)

)

MOTION FOR PRELIMINARY INJUNCTION

Pursuant to 42 U.S.C. §1983, Plaintiff has filed a complaint seeking injunctive relief

prohibiting Defendants from executing him on May 17, 2006 employing their proposed lethal

injection protocol. R.1:Complaint. On May 2, 2006, noting that Hill v. McDonough, U.S. No. 05-

8794 will address whether Plaintiff’s complaint may proceed under 42 U.S.C. §1983 or should be

considered a habeas corpus petition, this Court has issued a memorandum and order holding this

case in abeyance pending disposition of Hill. R. 21, 22. Under the circumstances, it is now

appropriate for this Court to issue a preliminary injunction prohibiting Defendants from executing

Plaintiff using the protocol described in the complaint. This Court should grant a preliminary

injunction for the following reasons:

1. The Supreme Court itself granted a stay of execution in Hill to permit resolution of

the exact jurisdictional question presented in this case: Whether Hill’s challenge to a particular lethal

injection protocol may proceed under §1983 or must proceed in habeas. See Hill v. Crosby, 546 U.S.

___, 126 S.Ct. 1189 (Jan. 25, 2006)(granting stay of execution and petition for writ of certiorari);1

1 While the plaintiff in Hill sought an injunction under 42 U.S.C. §1983, the Supreme Court order granted a stay of execution.
Case 3:06-cv-00340 Document 23-1 Filed 05/04/2006 Page 1 of 7

See also Rutherford v. Crosby, 546 U.S. ___, 126 S.Ct. 1191 (2006)(granting stay of execution).2 2. The Supreme Court is not alone in granting a preliminary injunction or stay under
such circumstances. Thus, in Roane v. United States, No. 05-2337, given the pendency of Hill, the United States District Court for the District of Columbia issued a preliminary injunction barring the United States from executing the plaintiffs using a lethal injection protocol essentially identical to the one at issue here. See Exhibit 1 (order granting preliminary injunction pending Hill). See also Taylor v. Crawford, No. 06-1379 (8th Cir. Feb. 1, 2006)(en banc)(granting stay of execution on plaintiff’s challenge to lethal injection protocol involving thiopental, pancuronium bromide, and potassium chloride)(Exhibit 2).
3. The stay or preliminary injunction orders in Hill, Rutherford, and Roane are not unlike various orders issued by courts which recently confronted a similar jurisdictional question, viz. a district court’s jurisdiction to hear a habeas petitioner’s motion for relief from judgment under Fed.R.Civ.P. 60(b):
a. For example, in In Re Abdur’Rahman, 6th Cir. Nos. 02-6547, 02-6548, the Sixth Circuit granted a stay of execution to allow it to consider the continued vitality of McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1997), which held that a district court lacked jurisdiction to consider such motions filed under Rule 60(b). See Exhibit 3 (Abdur’Rahman order granting stay of execution).
b. Afterwards, pending the decision in Abdur’Rahman, district courts granted stays of execution pending Abdur’Rahman, and each stay was upheld as not being an abuse of
2 In Abdur’Rahman v. Bredesen, U.S.No. 05-1036, the Supreme Court has pending before it the constitutionality of the same lethal injection protocol described in the complaint.
2
Case 3:06-cv-00340 Document 23-1 Filed 05/04/2006 Page 2 of 7

discretion. See e.g., Johnson v. Bell, W.D.Tenn.No. 97-3052, Nov. 9, 2004, R. 109 (granting stay pending Abdur’Rahman)(Exhibit 4) and Johnson v. Bell, No. 04-6361 (6th Cir. Nov. 15, 2004)(denying motion to vacate stay without prejudice to renewal following decision in Abdur’Rahman)(Boggs, C.J., Norris, Clay, JJ.)(Exhibit 5);3 Workman v. Bell, W.D.Tenn.No. 942577, Sept. 1, 2004, R. 162 (granting stay pending Abdur’Rahman)(Exhibit 6) and Workman v. Bell, Nos. 04-6037, 6038 (6th Cir. Sept. 20, 2004)(denying motion to vacate stay without prejudice to renewal following Abdur’Rahman)(Siler, Cole, Sutton, JJ.)(Exhibit 7); Alley v. Bell, W.D.Tenn.No. 97-3159, May 19, 2004, R. 131 (granting stay pending Abdur’Rahman)(Exhibit 8) and Alley v. Bell, No. 04-5596 (6th Cir. May 28, 2004)(denying motion to vacate stay)(Boggs, C.J., Batchelder, Ryan, JJ.)(Exhibit 9).4
4. The situation here is essentially identical: Confronted with a question of jurisdiction, this Court may properly grant a preliminary injunction pending the Supreme Court’s resolution of the jurisdictional issue.
5. The appropriateness of a preliminary injunction is also confirmed by the traditional four-part test governing injunctive relief:
a. Under that test, a court is required to assess: (a) the movant’s likelihood of
3 As this Court has recognized, In Re Sapp, 118 F.3d 460 (6th Cir. 1997) appears to indicate that this Court lacks jurisdiction. Sapp’s vitality is called into question by Hill, however, and it is clear that Sapp may indeed be overturned, much like McQueen was by Abdur’Rahman. If Hill determines that §1983 is a proper jurisdictional vehicle for Plaintiff’s challenge, then this Court would be required to address Plaintiff’s complaint in the first instance. Compare Alley v. Bell, 405 F.3d 371 (6th Cir. 2005)(en banc)(where district court had yet to decide merits of Rule 60(b) motion, case remanded for district court to address petition in first instance).
4 After upholding the stay, the panel issued its opinion after Abdur’Rahman was decided. Alley v. Bell, 392 F.3d 822 (6th Cir. 2004), vacated 405 F.3d 371 (6th Cir. 2005)(en banc).
3
Case 3:06-cv-00340 Document 23-1 Filed 05/04/2006 Page 3 of 7

success on the merits; (b) irreparable harm to the movant absent a stay; (c) the prospect that others will be harmed; and (d) the public interest. See e.g., Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir. 2000)(granting stay pending appeal); Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
b. These four factors “are factors to be balanced, not prerequisites that must be met.” Nader, 230 F.3d at 834; Michigan Coalition of Radioactive Material Users, Inc., 945 F.2d at 153; In Re Delorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).
c. “The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay. Simply stated, more of one excuses less of the other.” Michigan Coalition of Radioactive Material Users, Inc., 945 F.2d at 153; In Re Delorean Motor Co., 755 F.2d at 1229.
d. Thus, it has long been the law of this Circuit that a stay is appropriate where the movant “at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued.” Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982) (emphasis supplied). See also Family Trust Foundation of Kentucky, Inc. v. Kentucky Judicial Conduct Commission, 388 F.3d 224, 227 (6th Cir. 2004).
e. Here, these four considerations require a preliminary injunction. 1) Plaintiff’s complaint (R. 1) is far from frivolous, and there is clear
evidence that, in violation of the Eighth and Fourteenth Amendments, the only person executed by the State of Tennessee was, indeed, conscious and suffering terror and excruciating pain during the
4
Case 3:06-cv-00340 Document 23-1 Filed 05/04/2006 Page 4 of 7

execution process.5 Plaintiff’s claims are properly before this Court,6 and he will likely prevail on
the merits.
2) It is also apparent that Plaintiff would suffer irreparable injury absent
5See e.g., R. 11, Ex A, ¶20 (Affidavit of David Lubarsky, M.D.: “Mr. Coe was probably awake, suffocating in silence, and felt the searing pain of injection of intravenous potassium chloride.”).
6 See e.g., R. 19, Plaintiff’s Response To Motion To Dismiss, pp. 2-11 (incorporated in full by reference). Ultimately, Defendants misapprehend the scope of Article III, which requires a justiciable and ripe controversy with the threat of imminent harm. Sedley Alley has not faced the imminent harm which is the subject of his complaint until: (1) On March 29, 2006 the Tennessee Supreme Court set a May 17, 2006 execution date; (2) Commissioner Little overruled Plaintiff’s objections to the protocol on April 13, 2006; and (3) Lethal injection was established as the method of execution on April 19, 2006.
Significantly, on January 6, 2005, the Tennessee Supreme Court refused to set an execution date given the pendency of Plaintiff’s federal Rule 60(b) proceedings (Exhibit 10: Order refusing to set execution date), and later held the state’s November 2005 motion to reset execution “in abeyance pending disposition of the Rule 59(e) motion” (Exhibit 11) which Plaintiff had pending before the District Court (That case is now on appeal). The Tennessee Supreme Court’s actions make clear that from January 2005 through March 2006, Plaintiff faced no prospect of imminent harm from the Defendants, because Plaintiff would not face execution at all, at least until the 60(b) proceedings had been decided by the District Court, and a Rule 59 motion denied. And indeed, had the Rule 60 motion or the Rule 59 motion been granted, there would be no justiciable controversy at all, and Sedley Alley simply would not be facing the imminent harm he now faces. His claims have only recently ripened. The fact that he may have previously faced a threat which since dissipated makes no difference. Anderson v. Green, 513 U.S. 557 (1995). The question here is the imminent harm which is the subject of the complaint now before this Court.
It is also significant that Defendant Bell has discretion to change the protocol at any time. See R. 19, p. 7 & Ex. C: Bell deposition excerpts. It was not until Defendant Little responded to Plaintiff’s objections to the apparent protocol that it became clear that, notwithstanding Plaintiff’s objections and new research from Dr. Koniaris, et al., Defendants intended, in May 2006, to use what apparently is the same protocol used previously (although absent discovery, even that is not completely clear). Defendant Little could have upheld Plaintiff’s objections and stated that he would not use the protocol, and the present Article III controversy would not exist. Little, however, overruled the objections, which has created the case and controversy now pending before this Court. Again, this establishes that Plaintiff’s claims did not ripen until April 13, 2006, at the earliest, when Little finally responded to Plaintiff’s objections. As Plaintiff has noted, in reality, his suit did not fully ripen until April 19, 2006, when Defendant Bell sought to have Plaintiff choose a method of execution, Plaintiff refused, and this refusal conclusively established lethal injection as the method.
5
Case 3:06-cv-00340 Document 23-1 Filed 05/04/2006 Page 5 of 7

the requested relief: He would face the loss of life under cruel and torturous circumstances.7 This
is especially true where Defendants’ counsel has stated to Plaintiff’s counsel that, absent an
injunction, Defendants would proceed with the execution as planned.
3) In addition, there is little potential harm to the Defendants, who would
merely be required to temporarily refrain from engaging in cruel and inhumane actions, pending a
decision in Hill which will be decided in weeks.
4) Finally, the public manifestly has no interest in allowing state agents
to willfully inflict a most gruesome death on one of its citizens. The public interest lies with a proper
and deliberate examination of the complaint.
5) In the balance of these factors, therefore, a preliminary injunction is
appropriate.
6. As in Hill, Rutherford, and Roane, and much like the stays entered and upheld
pending Abdur’Rahman, this Court acts well within its powers to issue a preliminary injunction to
await the decision in Hill, especially given Plaintiff’s likelihood of success on the merits, the
irreparable harm he faces, and the public’s interest in avoiding wanton cruelty.
7 This disturbing reality strikes home after Ohio’s recent 90-minute botched execution of Joseph L. Clark, who raised his head from the gurney following the initial administration of the drugs and announced: “It don’t work.” See “Execution of Joseph Lewis Clark Fails To Go Smoothly,” Copley News Service, May 2, 2006. Clark then “could be heard ‘moaning, crying out and making guttural noises’ after technicians closed a curtain so that” no one could “observe them trying to set up a new IV line.” “Ohio Execution Briefly Delayed Over Problems With Lethal Injection,” Agence France Presse, May 3, 2006. Even after the execution resumed after nearly ninety minutes, “Clark raised his head more than a dozen times as the three-drug fatal cocktail was pumped into a vein.” Copley News Service, supra. It thus clearly appears, exactly as Sedley Alley has maintained in his complaint, that Clark was not immediately or adequately anesthetized during either attempt to kill him. Compare Complaint, R. 1, ¶¶1, 43-48, 91-99. According to the New York Times, after this debacle, Ohio officials intend “to review our policies and our protocol.” See “Trouble Finding Inmate’s Vein Slows Lethal Injection In Ohio,” New York Times, May 3, 2006.
6
Case 3:06-cv-00340 Document 23-1 Filed 05/04/2006 Page 6 of 7

CONCLUSION This Court should grant a preliminary injunction prohibiting Defendants from executing Plaintiff under Defendants’ protocol, pending resolution of Hill v. McDonough, U.S.No. 05-8794 and pending final disposition of this case.
Respectfully submitted,
Paul R. Bottei Kelley J. Henry Christopher M. Minton Gretchen L. Swift Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 FAX (615)736-5265
By: /s/ Paul R. Bottei
CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served upon Joseph Whalen, Office of the Attorney General, 425 5th Avenue North, Nashville, Tennessee 37243 this 4th day of May, 2006.
/s/ Paul R. Bottei
7
Case 3:06-cv-00340 Document 23-1 Filed 05/04/2006 Page 7 of 7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SEDLEY ALLEY,

)

)

Plaintiff,

)

)

v

)

)

GEORGE LITTLE, in his official capacity as )

Tennessee’s Commissioner of

)

Correction;

)

)

RICKY BELL, in his official capacity as

)

Warden, Riverbend Maximum

)

Security Institution;

)

)

JOHN DOE PHYSICIANS 1-100;

)

)

JOHN DOE PHARMACISTS 1-100;

)

)

JOHN DOE MEDICAL PERSONNEL 1-100; )

)

JOHN DOE EXECUTIONERS 1-100;

)

)

JOHN DOES 1-100,

)

)

Defendants.

)

No. 3:06-340 Judge Trauger

MOTION TO RECONSIDER ORDER TRANSFERRING CASE

This is a §1983 action, not a habeas corpus proceeding. It is clear that Plaintiff and the named

Defendants are all residents of the Middle District of Tennessee and that the actions or occurrences

challenged in the complaint would occur in the Middle District of Tennessee. 28 U.S.C. §1391(b)

makes clear that this action can be brought “only in” this District, as all the Defendants are residents

of this District (§(b)(1)), the claims arise out of activity in this District (§b(2)), and it is the district

in which the Defendants are found. §b(3). There is no venue in the Western District of Tennessee.

To be sure, in a habeas proceeding, venue can lie in two different districts: The district of

Case 3:06-cv-00340 Document 8 Filed 04/12/2006 Page 1 of 3

conviction, and the district of incarceration. 28 U.S.C. §2241(d). For this reason, Sedley Alley’s habeas petition was transferred to the Western District, which is the district of conviction.1
Because this is a suit under 42 U.S.C. §1983, however, the venue provisions which apply are those of 28 U.S.C. §1391(b), not §2241(d). Venue, therefore, properly lies in the Middle District, not the Western District.
This Court should reconsider its order transferring the case, retain the case, and set the case for further proceedings.
Respectfully submitted,
Paul R. Bottei Kelley J. Henry Christopher M. Minton Gretchen L. Swift Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 FAX (615)736-5265 By: /s/ Paul R. Bottei
1 In transferring this case, this Court noted that the Western District has before it a pending §1983 action. However, under §1391, the Western District is the proper venue for that §1983 because Sedley Alley is suing for release of evidence located in the Western District of Tennessee which is in the custody of Defendant(s) who reside in the Western District.
2
Case 3:06-cv-00340 Document 8 Filed 04/12/2006 Page 2 of 3

CERTIFICATE OF SERVICE I certify that a copy of this motion was hand-delivered this day to the Office of the Attorney General, 425 Fifth Avenue North, Nashville, Tennessee 37243 this 12th day of April 2006.
/s/ Paul R. Bottei
3 Case 3:06-cv-00340 Document 8 Filed 04/12/2006 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

SEDLEY ALLEY,

)

)

Plaintiff,

)

)

v.

)

)

GEORGE LITTLE, in his official capacity as

)

Tennessee’s Commissioner of Correction;

)

RICKY BELL, in his official capacity as

)

Warden, Riverbend Maximum Security

)

Institution; JOHN DOE PHYSICIANS 1-100; )

JOHN DOE PHARMACISTS 1-100;

)

JOHN DOE MEDICAL PERSONNEL 1-100; )

JOHN DOE EXECUTIONERS 1-100; and

)

JOHN DOES 1-100,

)

)

Defendants.

)

Civil No. 3:06-0340 Judge Trauger

ORDER OF TRANSFER

The plaintiff alleges that he is scheduled to be put to death by lethal injection on May 17,

2006. He has filed in this court an action under 42 U.S.C. § 1983, alleging, among other things,

that Tennessee’s lethal injection protocol violates the United States Constitution. Presently

pending in the Western District of Tennessee is another action filed by this same plaintiff under

42 U.S.C. § 1983.

The plaintiff’s prosecution took place in the Western District of Tennessee, the death

penalty was imposed in the Western District of Tennessee, and his death penalty habeas corpus

proceeding was tried in the Western District of Tennessee District Court. That action was

originally filed in this court, under Docket No. 3:97-cv-01207, but transferred to the Western

1 Case 3:06-cv-00340 Document 7 Filed 04/12/2006 Page 1 of 2

District pursuant to the custom within this state to have capital habeas corpus petitions determined in the district where the prosecution took place.
Administrative Order No. 158 of this court provides that, after the filing of a capital habeas corpus petition, “any subsequently filed cases, petitions, appeals or filings of any kind relating to the Petitioner in the original death penalty case, shall be directly assigned to [the judge assigned to the capital proceeding].” Administrative Order No. 158(c). Although the Western District of Tennessee apparently has no similar administrative order, it is in the interest of judicial economy that this newly-filed case be transferred to the Western District of Tennessee, where the earlier-filed case (Case No. 2:06-cv-2201-SHM-DKV) is presently pending. It is therefore ORDERED that this case is TRANSFERRED to the United States District for the Western District of Tennessee, Western Division. The plaintiff’s Motion for Status Conference (Docket No. 4) is DENIED AS MOOT.
It is so ORDERED. Enter this 12th day of April 2006.
________________________________ ALETA A. TRAUGER U.S. District Judge
2
Case 3:06-cv-00340 Document 7 Filed 04/12/2006 Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

SEDLEY ALLEY,

)

)

Plaintiff,

)

)

v.

)

)

GEORGE LITTLE, in his official capacity as

)

Tennessee’s Commissioner of Correction;

)

RICKY BELL, in his official capacity as

)

Warden, Riverbend Maximum Security

)

Institution; JOHN DOE PHYSICIANS 1-100; )

JOHN DOE PHARMACISTS 1-100;

)

JOHN DOE MEDICAL PERSONNEL 1-100; )

JOHN DOE EXECUTIONERS 1-100; and

)

JOHN DOES 1-100,

)

)

Defendants.

)

Civil No. 3:06-0340 Judge Trauger

O R D E R

The plaintiff has filed a Motion to Reconsider this court’s Order of Transfer (Docket No.

7). (Docket No. 8) Defendants Little and Bell do not oppose the Motion to Reconsider.

(Docket No. 9) It is therefore ORDERED that the Motion to Reconsider (Docket No. 8) is

GRANTED, and the Order of Transfer (Docket No. 7) is VACATED. This case shall remain

for disposition in this district.

It is hereby ORDERED that the plaintiff’s Motion for Status Conference (Docket No. 4)

is GRANTED, and a status conference will be held on Friday, April 14, 2006, at 1:00 p.m.

Because the status conference will merely deal with procedural and scheduling matters, the

personal presence of the parties will not be required. However, counsel for the defendants

1 Case 3:06-cv-00340 Document 10 Filed 04/13/2006 Page 1 of 2

should be knowledgeable about the schedules and availability of the defendants over the course of the next several weeks.
It is so ORDERED. Enter this 13th day of April 2006.
________________________________ ALETA A. TRAUGER U.S. District Judge
2 Case 3:06-cv-00340 Document 10 Filed 04/13/2006 Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SEDLEY ALLEY,

)

)

Plaintiff,

)

)

vs.

)

)

GEORGE LITTLE, in his official

)

capacity as Tennessee’s Commissioner

)

of Correction;

)

)

RICKY BELL, in his official capacity as )

Warden, Riverbend Maximum Security )

Institution,

)

)

JOHN DOE PHYSICIANS 1-100;

)

)

JOHN DOE PHARMACISTS 1-100;

)

)

JOHN DOE MEDICAL PERSONNEL )

1-100;

)

)

JOHN DOE EXECUTIONERS 1-100;

)

)

JOHN DOES 1-100,

)

)

Defendants.

)

No. 3:06-0340 JUDGE TRAUGER

______________________________________________________________________________
MOTION TO DISMISS OF DEFENDANTS LITTLE AND BELL ______________________________________________________________________________
Defendants George Little and Ricky Bell, appearing in their official capacities
only, move, pursuant to Fed. R. Civ. P. 12(b) (6), for this Court to dismiss this case for failure to
state a claim for which relief can be granted.
The defendants’ motion is further based upon the following;
1. The plaintiff has been dilatory in filing his complaint seeking equitable Case 3:06-cv-00340 Document 15 Filed 04/19/2006 Page 1 of 3

relief; 2. The statute of limitations bars the plaintiff’s action; 3. The facts are insufficient to warrant relief, and the plaintiff’s claims
should be dismissed on the merits; 4. The plaintiff fails to state an equal protection claim; 5. The Public Defender’s Office is barred from bringing a private civil
action. In support of this motion, the defendants rely upon the memorandum of law filed
contemporaneously herewith. Respectfully submitted, PAUL G. SUMMERS Attorney General
s, Joseph F. Whalen JOSEPH F. WHALEN, BPR #19919 Associate Solicitor General Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-3499
s, Mark A. Hudson MARK A. HUDSON, BPR #12124 Senior Counsel Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-7401
2 Case 3:06-cv-00340 Document 15 Filed 04/19/2006 Page 2 of 3

CERTIFICATE OF SERVICE I hereby certify that on April 19, 2006, a copy of the foregoing response was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court’s electronic filing system.
s, Joseph F. Whalen JOSEPH F. WHALEN, BPR #19919 Associate Solicitor General Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-3499
3 Case 3:06-cv-00340 Document 15 Filed 04/19/2006 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SEDLEY ALLEY,

)

)

Plaintiff,

)

)

vs.

)

)

GEORGE LITTLE, in his official

)

capacity as Tennessee’s Commissioner

)

of Correction;

)

)

RICKY BELL, in his official capacity as )

Warden, Riverbend Maximum Security )

Institution,

)

)

JOHN DOE PHYSICIANS 1-100;

)

)

JOHN DOE PHARMACISTS 1-100;

)

)

JOHN DOE MEDICAL PERSONNEL )

1-100;

)

)

JOHN DOE EXECUTIONERS 1-100;

)

)

JOHN DOES 1-100,

)

)

Defendants.

)

No. 3:06-0340 JUDGE TRAUGER

______________________________________________________________________________

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
OF DEFENDANTS LITTLE AND BELL ______________________________________________________________________________

Defendants George Little and Ricky Bell, appearing in their official capacities

only, have moved, pursuant to Fed. R. Civ. P. 12(b)(6), for this Court to dismiss this case for

failure to state a claim for which relief can be granted.

Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 1 of 18

The defendants submit the following in support of this motion. PRELIMINARY STATEMENT
The plaintiff in this action is a condemned inmate residing at Riverbend Maximum Security Institution, (Riverbend), in Nashville, Davidson County, Tennessee. His execution by lethal injection is scheduled for May 17, 2006, at 1:00 a.m. The essence of the plaintiff’s complaint is that the State intends to use a protocol whereby he would be injected with a dose of sodium thiopental, then with a dose of pancuronium bromide (Pavulon), and then with a dose of potassium chloride. The plaintiff contends that the use of this protocol is unconstitutional. He contends that the sodium thiopental does not sufficiently anesthetize any individual. He contends that the use of pancuronium bromide is arbitrary, serves no legitimate interest, unreasonably risks the infliction of torture, and offends the dignity of humanity. He contends that its use violates equal protection. He contends that the potassium chloride does not stop the heart. He contends that the use of this mixture of chemicals causes a painful death experienced without total unconsciousness. He contends that this Court should enter a judgment declaring the use of pancuronium bromide unconstitutional and enjoining its use. He contends that this Court should declare the protocol unconstitutional and enjoin its use as unconstitutional under the Eighth, Ninth, and Fourteenth Amendments. (Complaint, ¶¶ 1-2).
The defendants in this action are George Little, Commissioner of the Tennessee Department of Correction (TDOC), in his official capacity, and Ricky Bell, Warden of Riverbend, in his official capacity. (Complaint, ¶¶ 3-4). The plaintiff also names John Doe defendant physicians, pharmacists, medical personnel, executioners, and any and all other
2 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 2 of 18

persons involved in the plaintiff’s execution. (Complaint, ¶¶ 5-9).1

ARGUMENTS

I.

THE PLAINTIFF HAS BEEN DILATORY IN FILING HIS COMPLAINT

SEEKING EQUITABLE RELIEF.

The plaintiff filed his complaint on April 11, 2006 — a mere thirty-six days prior

to his scheduled execution. The plaintiff had abundant opportunities to challenge the lethal

injection protocol well before that. Delays in bringing challenges to execution protocols are

inexcusable. In McQueen v. Patton, 118 F.3d 460, 464 (6th Cir. 1997), the Sixth Circuit

addressed the equity of allowing a dilatory challenge:

Even were we to consider the merits of McQueen's claim, we would not permit his claim that death by electrocution constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Petitioner has known of the possibility of execution for over fifteen years. It has been ten years since a Kentucky governor first signed a death warrant for his electrocution. The legal bases of such a challenge have been apparent for many years. Indeed, petitioner's claims on the merits are replete with supporting arguments based on events and reasoning from every decade from the 1910s to the 1990s, even discounting the material cited to "Startling Detective" and "News of the Weird" (Memo in Support of Motion for Temporary Restraining Order and Preliminary Injunction, at 31, n.87 and App. 2, n.6.). Even though, in petitioner's mind, every year or every day may bring new support for his arguments, the claims themselves have long been available, and have needlessly and inexcusably been withheld. Thus, equity would not permit the consideration of this claim for that reason alone, even if jurisdiction were otherwise proper.

1

Although the undersigned does not represent the John Doe defendants, the filing

of a complaint against “John Doe” defendants does not toll the running of the statute of

limitations against those parties. See Cox v. Treadway, 75 F.3d 230 (6th Cir. 1996); Bufalino v.

Michigan Bell Telephone Co., 404 F.2d 1023, 1028 (6th Cir. 1968). Thus, to the extent the

plaintiff seeks to bring any complaint against any other individual or entity, he must identify the

defendant and file a lawsuit within the one-year statute of limitations applicable to § 1983

actions. Tenn. Code Ann. § 28-3-104(a).

3 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 3 of 18

(Citations omitted). Likewise, in Hicks v. Taft, 431 F.3d 916 (6th Cir. 2005), the Court concluded that a stay of execution was not warranted where an inmate, on the eve of his execution, moved to intervene in another inmate’s challenge to the constitutionality of Ohio’s lethal injection protocol. See also Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006) (affirming dismissal of § 1983 action challenging lethal injection procedures due to plaintiff’s dilatory filing, i.e., five days before the execution); accord Kincy v. Livingston, 2006 WL 775126 (5th Cir. Mar. 27, 2006) (copy attached) (twenty-seven days before the execution); Hughes v. Johnson, 2006 WL 637906 (5th Cir. Mar. 14, 2006) (copy attached) (fourteen days before the execution).
“[W]aiting to file such a challenge [to the method of execution] just days before a scheduled execution constitutes unnecessary delay.” Smith, 440 F.3d at 263 (citing Harris v. Johnson, 376 F.3d 414, 417-419 (5th Cir. 2004)). “‘Given the State’s significant interest in enforcing its criminal judgments, there is a strong equitable presumption against’ last-minute equitable requests.” White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005) (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)). “This presumption occurs because the inmate could have brought the action at an earlier time, which would have allowed the court to consider the merits without having to utilize last-minute equitable remedies.” Id. Here, plaintiff could easily have filed his lawsuit years ago;2 “[b]y waiting as long as he did, [plaintiff] leaves little doubt that the real purpose behind his claim is to seek delay of his execution. . . . ” Harris, 376 F.3d at 418.3 A

2

At a minimum, he could have filed it on January 16, 2004, when the Tennessee

Supreme Court set the execution of his sentence for June 3, 2004. See State v. Sedley Alley, No.

M1991-00019-SC-DPE-DD (Tenn. Jan. 16, 2004) (order setting date of execution).

3

Plaintiff acted likewise in the face of his June 3, 2004, execution date. On May

12, 2004, just twenty-two days prior, plaintiff filed a motion under Fed.R.Civ.P. 60(b) to reopen

his habeas corpus proceeding. The district court stayed the execution on May 19, 2004, on the

basis of a then-pending question regarding the proper treatment of such motions in habeas cases.

4 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 4 of 18

Court of equity must not countenance such dilatory tactics; particularly so here, since at this

juncture, with plaintiff having long since been denied federal habeas corpus relief from his

conviction and sentence, “the State’s interests in finality are all but paramount.” Calderon v.

Thompson, 523 U.S. 538, 557 (1998). “Finality serves . . . to preserve the federal balance. . . .

[The] federal system recognizes the independent power of a State to articulate societal norms

through criminal law; but the power of a State to pass laws means little if the State cannot

enforce them.’" Id., 523 U.S. at 556 (quoting McCleskey v. Zant, 499 U.S. 467, 491 (1991)) .

Dismissal of plaintiff’s late request for equitable relief is also particularly

appropriate for yet another reason. On April 19, 2006, plaintiff refused to sign the “Affidavit to

Elect Method of Execution” presented to him by the warden pursuant to Tenn. Code Ann. § 40-

23-114. (copy attached) The consequence of his failure to choose a method, as the Affidavit

indicates, results in his execution being carried out by lethal injection. Having failed to opt out

of this method of execution, as is his right under the statute, plaintiff has brought about the

condition from which he seeks equitable relief. Accordingly, he is not now entitled to such

relief. Cf. Stewart v. LaGrand, 526 U.S. 115 (1999).

II.

THE STATUTE OF LIMITATIONS BARS THE PLAINTIFF’S ACTION.

There is no specific statute of limitations for actions arising under 42 U.S.C. §

1983.4 When Congress has not established a time limitation for a federal cause of action, the

settled practice by federal courts has been to adopt a local time limitation as federal law if it is

not inconsistent with the federal law or policy to do so. Wilson v. Garcia, 471 U.S. 261, 105

See Alley v. Bell, 392 F.3d 822, 826-827 (6th Cir. 2004), rehearing en banc granted, 405 F.3d 371 (6th Cir. 2005).

4

The United States Supreme Court has yet to settle the question whether § 1983 is

a proper vehicle for bringing a method -of-execution claim like plaintiff’s. See Hill v. Crosby,

cert. granted, 126 S.Ct. 1189 (2006). Defendants, however, assume arguendo that it is.

5 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 5 of 18

S.Ct. 1938, 85 L.Ed.2d 254 (1985). More specifically, federal courts should look to the most analogous state statute of limitations to apply to a claim for personal injury under 42 U.S.C. § 1983. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980).
Tenn. Code Ann. § 28-3-104(3) provides that civil actions for compensatory or punitive damages, or both, under the federal civil rights statutes must be brought within one year after the cause of action accrues. This statutory provision has been held by the Sixth Circuit to be the applicable statute of limitation with respect to section 1983 actions brought in the State of Tennessee. Berndt v. State of Tennessee, 796 F.2d 879 (6th Cir. 1986).5 Therefore, the plaintiff in this case is limited to one year after the accrual of his claim within which to bring an action under 42 U.S.C. § 1983.
Although the duration of the statute of limitations for actions under 42 U.S.C. § 1983 is governed by state law, federal law governs when the statute begins to run. Sharpe v. Cureton, 319 F.2d 259, 266 (6th Cir. 2003), cert. denied, 540 U.S. 876, 124 S.Ct. 228, 157 L.Ed.2 138 (2003). Under federal law, the “discovery rule” applies to establish the date on which the statute of limitations begins to run, i.e., when the plaintiff knew or in the exercise of due diligence should have known of the injury that forms the basis of his or her action. Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984). The test is an objective one. The Court must determine “what event should have alerted the typical lay person to protect his or her rights.” Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991).
The plaintiff herein has been a death-row inmate in Tennessee since before 1989. His death sentence and conviction were affirmed by the Supreme Court of Tennessee on August

5

This one year statute of limitation has been extended to suits for injunctive relief

under 42 U.S.C. § 1983. See Cox v. Shelby State Community College, 48 Fed.Appx. 500, 507

(6th Cir. 2002) (copy attached).

6 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 6 of 18

7, 1989. State v. Alley, 776 S.W.2d 506 (Tenn. 1989). In June of 1998, shortly after the legislature enacted lethal injection as a means of execution, the TDOC Commissioner appointed a committee to establish a lethal injection protocol. Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 300 (Tenn. 2005). This lethal injection protocol was used in the execution of Robert Glen Coe in April of 2000. Id. at 301. The plaintiff is familiar with the Abdur’Rahman v. Bredesen decision and the fact that it concerns the lethal injection protocol about which he complains as evidenced by his Complaint. (Complaint, p. 2, fn 1). In fact, his complaint evidences the fact that he was aware that this protocol was used in the execution of Robert Glen Coe in April of 2000. (Complaint, ¶¶ 46-48 and 74). Thus, the plaintiff knew or in the exercise of due diligence should have known about the lethal injection protocol as early as April of 2000.
On June 1, 2003, Chancellor Ellen Hobbs Lyle of the Chancery Court for the State of Tennessee, Twentieth Judicial District, Davidson County, Part III, issued her Memorandum and Order in which she held that the TDOC lethal injection protocol does not violate the United States Constitution or the Tennessee Constitution. Abu-Ali Abdur’Rahman v. Don Sundquist, et al., In the Chancery Court for the State of Tennessee, Twentieth Judicial District, Davidson County, Memorandum and Order (certified copy attached). Thus, without question, the plaintiff knew or in the exercise of due diligence should have known about the lethal injection protocol and that it had been upheld as constitutional in June of 2003.
The plaintiff’s complaint herein was filed on April 11, 2006. The statute of limitations on his cause expired in June of 2004, at the latest. The plaintiff’s complaint is barred by the statute of limitations.
7 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 7 of 18

III.

PLAINTIFF’S CHALLENGE TO TENNESSEE’S LETHAL INJECTION

PROTOCOL HAS ALREADY BEEN ADJUDICATED AND REJECTED;

HIS CLAIMS SHOULD BE SUMMARILY DISMISSED ON THE MERITS,

AS THE FACTS ARE INSUFFICIENT TO WARRANT RELIEF.

The challenge that plaintiff presents to Tennessee’s lethal injection protocol has

already been fully litigated and adjudicated in state court. As plaintiff’s complaint alludes,6 in

Abdur’Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005), petition for cert. filed (No. 05-1036) (U.S.), the Tennessee Supreme Court rejected an Eighth Amendment challenge to the protocol, holding that the prisoner there had “failed to establish that the lethal injection protocol is cruel and unusual punishment under the United States or Tennessee constitutions.” 181 S.W.3d at 309. The court also rejected a Due Process challenge to the protocol, holding that the prisoner had “failed to demonstrate a violation of either procedural or substantive due process under the United States or Tennessee constitutions.” Id., 181 S.W.3d at 310.
In so holding, the court concluded that Tennessee’s lethal injection protocol was consistent with contemporary standards of decency, finding that “the evidence in this case has established that Tennessee’s lethal injection protocol is consistent with the overwhelming majority of lethal injection protocols used by other states and the federal government.” Id., 181 S.W.3d at 307. The court further concluded that the protocol did not “offend[] either society or the inmate by the infliction of unnecessary physical or psychological pain and suffering.” Id. “[A]lthough it was undisputed that the injection of Pavulon and potassium chloride would alone cause extreme pain and suffering, all of the medical experts who testified before the Chancellor agreed that a dosage of five grams of sodium Pentothal as required under Tennessee’s lethal injection protocol causes nearly immediate unconsciousness and eventually death.” Id., 181 S.W.3d at 307-308. The court also rejected arguments for how perceived deficiencies in the

6

Complaint, ¶3 n.1.

8 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 8 of 18

protocol’s procedures heighten the risk, finding that such arguments “simply are not supported by the evidence in the record.” Id., 181 S.W.3d at 308. The court went on to conclude, with respect to the Due Process challenge, that “there is nothing arbitrary, irrational, improper or egregious in the manner in which the Department implemented a lethal injection protocol, i.e., by studying the lethal injection protocols of other states and the federal government and by using those protocols as models for the creation of Tennessee’s protocol” Id., 181 S.W.3d at 310. And it reiterated in this context that “there is no evidence that the Tennessee lethal injection protocol creates an unreasonable risk of unnecessary pain and suffering.” Id.
Tennessee’s highest court has thus already squarely addressed and rejected the same constitutional challenges to the state’s lethal injection protocol that plaintiff now presents to this Court.7 Notwithstanding this fact, Plaintiff will no doubt contend that this state court precedent is merely persuasive authority and, thus, not binding on this Court. Be that is it may, see RAR, Incorporated v. Turner Diesel, Limited, 107 F.3d 1272, 1276 (7th Cir. 1997),8 here this precedent assumes special significance due to plaintiff’s reliance in his complaint on the original trial court order issued in Abdur’Rahman.

7

Defendants acknowledge that, in addition to his Eighth Amendment and Due

Process claims, plaintiff brings an Equal Protection claim and a Ninth Amendment claim. But

for the reasons discussed below, these claims are likewise subject to summary disposition on the

merits.

8

State court precedent is binding, however, as to issues of state law. See id. And

the Tennessee Supreme Court also held in Abdur’Rahman that the Tennessee Nonlivestock

Humane Death Act, Tenn. Code Ann. § 44-17-301 et seq, had no application to the capital

punishment context. 181 S.W.3d at 313. This holding alone warrants the dismissal of plaintiff’s

Equal Protection claim, Complaint, ¶¶ 88-90, as well as part of his Eighth Amendment claim,

Complaint, ¶¶ 82-87, as these claims are predicated on the application of this statute.

9 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 9 of 18

Where, as here, a defendant moves to dismiss under Fed.R.Civ.P. 12(b)(6), the court, accepting the allegations of the complaint as true and drawing all inferences in favor of the nonmoving party, may dismiss the complaint if it is satisfied that the plaintiff can prove no set of facts in support of his claim that will entitle him to relief. See Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). But in making this inquiry, the court is not obliged to ignore facts that undermine the plaintiff’s claims. Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). And while the court’s inquiry on a motion to dismiss is limited to the pleadings, it may nevertheless consider facts stated both in the complaint and in documents alleged or referenced in the complaint. See Young v. Lepone, 305 F.3d 1, 11 (1st Cir. 2002) (documents from which complaint contained extensive excerpts and references may be considered by district court on motion to dismiss); Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (court may consider documents of which plaintiff had notice and on which he relied in bringing suit); see generally 2 James Wm. Moore, Moores’ Federal Practice § 12.34[2] (3d ed. 2006).
Here, plaintiff excerpts from and references repeatedly in his complaint the order of the trial court in Abdur’Rahman: Abdur’Rahman v. Sundquist, No. 02-2236-III (Tenn.Chanc.Ct. June 2, 2003) (memorandum and order dismissing petition with prejudice) (copy attached). See Complaint, ¶¶ 65, 80; see also Complaint, ¶¶ 77, 82, 88, 91, 94, 97 (incorporating ¶ 65 by reference). The facts stated in that order — indeed, the factual findings made by the state court beyond the one singled out by plaintiff — are therefore properly considered by this Court in ruling on defendant’s motion to dismiss.9 These findings not only

9

Logic and fairness dictate this conclusion as well. Since plaintiff has relied on

Chancellor Lyle’s finding that pancuronium bromide is unnecessary, he should also be held, at a

minimum, to the chancellor’s related finding that it ultimately mattered not, given the reliable

administration of a lethal dose of a barbiturate sedative.

10 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 10 of 18

undermine the factual predicate for plaintiff’s claims, they eliminate it. Consequently, plaintiff’s claims should be summarily dismissed on the merits under Rule 12(b)(6).
As found by the state trial court after an evidentiary hearing, the method of lethal injection in Tennessee consists of the injection of three drugs: sodium thiopental (Pentothal), pancuronium bromide (Pavulon), and potassium chloride. Seven syringes are prepared: one syringe of Pentothal, two syringes of Pavulon, two syringes of potassium chloride, and two syringes of saline.10 Then seven exact replicas of these syringes are prepared as backups. The syringes are labeled 1 through 7 in the sequence that they are to be injected, namely, Pentothal, saline, Pavulon, saline, and potassium chloride. They are also color-coded based on the contents of the syringe. Abdur’Rahman, No. 02-2236-III, Order, pp. 3-4.
After the inmate is transported to the execution chamber, IV catheters are placed in both of the inmate’s arms by certified EMT paramedics. After the flow of normal saline is begun, the paramedics leave the execution chamber. The warden, deputy warden, and a chaplain remain. The executioner is located in a room next to the execution chamber, but behind a window with a portal for the IV lines. There is also a camera above the gurney in the execution chamber and a monitor in the executioner’s room. Id., p. 4.
At the appropriate time, the warden signals the executioner to begin the sequential injection of the three drugs into the IV tubing connected to the catheter in the inmate’s arm. The camera and monitor allow the executioner to observe the flow of the drugs to the IV; the warden,
10 “The Pentothal comes in a powder form which [the warden] is required to mix with sterile water with the use of syringes. He sticks a needle into the sterile water vial, withdraws the necessary amount to mix with the Pentothal powder. He then shakes the mixture and draws it into a big syringe with sterile water. The shelf life of the Pentothal mixture is very short, 24 hours or less. The shelf life of the powder is much longer, in the range of six months. That is why the Pentothal is not converted to a liquid state until just before the execution.” Id., p. 3.
11 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 11 of 18

who is located approximately a foot from the inmate’s head, can also see the flow of the drugs through the tubing and can notify the executioner if problems are encountered. Following the injection of the drugs and a five-minute waiting period, the inmate is examined by a physician, who pronounces death. Id., pp. 4-5.
The state court found that “[this] method was shown by the proof to be reliable in rendering in inmate unconscious, if not dead, before the paralytical and lethal painful drugs take effect.” Id., p. 2. “[S]ome 30 states use the same lethal injection method as Tennessee, including use of Pavulon. Tennessee copied other states in developing its method.” Id., pp. 8-9. While the court did find, as plaintiff says, “that the State failed to provide any proof of the reasons for [the use of Pavulon ] in the lethal injection method” and, thus, that it was “unnecessary” id., pp. 12, 13, it nevertheless also found that "there is less than a remote chance that the condemned would ever be conscious by the time the Pavulon was administered." Id., p. 13.
All of the experts testified that if the lethal injection method proceeds as planned it will not result in physical or psychological suffering: the five grams of Pentothal will render the prisoner unconscious or dead, Pavulon is injected and paralyzes the prisoner, and the sodium (sic) chloride stops the heart.
Id., p. 1411 The state court rejected arguments based on perceived deficiencies in the
protocol’s procedures, i.e., the use of Pentothal, the lack of physical proximity between the inmate and the executioner, color-coding of the syringes, and the lack of physician involvement.
11 “A large dose of Pentothal is applied in the Tennessee lethal injection method — five grams. The testimony from the experts was that a dosage in this amount in and of itself should result in death.” Id., p. 10.
12 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 12 of 18

Id., pp. 9-11. It found that procedures followed in a medical, surgical setting are “distinguishable from an execution," where "[a] paramount concern . . . is security.” Id., p. 9. The court also found that “[t]he warden has been trained on detecting problems such as crimping of the IV line, or failure of the injection to go into the vein.” Id., p. 10. See also id., p. 16 (crediting testimony of warden regarding “precautions taken and training engaged in to minimize error”). The court also credited “the direct evidence of the effects of the Tennessee lethal injection method in question,” namely, the autopsy results of a previously executed Tennessee inmate, Robert Glenn Coe. Id., p. 15.

The autopsy revealed that the level of Pentothal remaining in the body after prisoner Coe’s execution was not only therapeutic, i.e. the prisoner lost consciousness before the effects of the Pavulon, but it was at a lethal level. The therapeutic, lethal level of Pentothal in the body following execution demonstrates that the potency of the Pentothal was in no way compromised and that there was no problem with the IV injection and intake.

Id. (emphasis added). Accordingly, the court ultimately found “that there is less than a remote

chance that the prisoner will be subjected to unnecessary physical pain or psychological

suffering under Tennessee’s lethal injection method.” Id., p. 17.

IV.

PLAINTIFF HAS FAILED TO STATE A CLAIM FOR VIOLATION OF

THE EQUAL PROTECTION CLAUSE.

The Equal Protection Clause of the Fourteenth Amendment is “essentially a

direction that all persons similarly situated be treated alike.” City of Cleburne v. Cleburne

Living Center, 473 U.S. 432, 439 (1985). The Equal Protection Clause is violated when a state

actor intentionally discriminates against a member of a protected class because of the person’s

membership in such class. Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir.

1990).

13 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 13 of 18

In this case the plaintiff asserts an equal protection claim because he is subject to

execution through the use of pancuronium bromide while under the Nonlivestock Animal

Humane Death Act, Tenn. Code Ann. §§ 44-17-301 et seq., the State protects pets including

dogs, cats, rabbits, chicks, ducks, and pot-bellied pigs from the use of pancuronium bromide

when being euthanized. This argument must fail for obvious reasons. The Equal Protection

Clause prohibits disparate treatment of those similarly situated. The plaintiff is a human being

and, therefore, is not similarly situated with a pet. Also, execution by lethal injection is not by

definition equivalent to “euthanasia” as that word is commonly applied to human beings. The

circumstances under which pets may be euthanized and those attendant to the execution of a

human being are so wholly different as to render any comparison pointless.

V.

THE PUBLIC DEFENDER’S OFFICE IS BARRED FROM BRINGING A

PRIVATE CIVIL ACTION. THEREFORE, THIS ACTION SHOULD BE

DISMISSED AS THE UNAUTHORIZED PRIVATE PRACTICE OF

LAW.12

The defendants further aver that this matter should be dismissed because the

Federal Public Defender is not authorized to pursue a civil rights actions on behalf of the

plaintiff or any other individual. There is no provision for the appointment of a Federal Public

12 The defendants note that the Federal Public Defender’s Office, which was appointed by U. S. District Judge Bernice Donald to represent the plaintiff in his 28 U.S.C. § 2254 action, was allowed to proceed on behalf of the plaintiff in Alley v. Key, No. 2:06-CV-2201, a 42 U.S.C. § 1983 action filed in the U. S. District Court for the Western District of Tennessee. The decision was based on 21 U.S.C. § 848(q)(8) which allows attorneys appointed in death penalty cases to “represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” The defendants disagree that § 848(q)(8) should be read so broadly as to permit the filing of a § 1983 action.
14 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 14 of 18

Defender in a civil action, and the office of Federal Public Defender is barred from instituting
any action on its own. See 18 U.S.C. § 3006A(g)(2)(A) ("Neither the Federal Public Defender
nor any attorney so appointed by him may engage in the private practice of law");
Administrative Office of the U.S. Courts, Guide to Judiciary Policies and Procedures, Vol. II,
Ch. VI. Moreover, Canon 5 of the Code of Conduct for Federal Public Defender Employees
provides:
A federal public defender employee should regulate extra-official activities to minimize the risk of conflict with official duties.
D. Practice of Law. A defender employee should not engage in the private practice of law. Notwithstanding this prohibition, a defender employee may act pro se and may and may, without compensation, give legal advice to and draft or review documents for a member of the defender employee’s family, so long as such work does not present an appearance of impropriety and does not interfere with the defender employee’s primary responsibility to the defendant office. Note: See 18 U.S.C. § 3006A(g)(2)(A) (prohibiting public defenders from engaging in the private practice of law). See also 18 U.S.C. § 203 (representation in matters involving the United States); 18 U.S.C. § 205 (claims against the United States).
In describing the unique — and limited — role of public defenders generally, one
federal district court in Nevada aptly observed:
The office of public defender is sui generis. Unlike other public offices, it is not established to serve the public generally. Such offices have been created in implementation of the obligations created by the Sixth and Fourteenth Amendments to the United States Constitution, to the end that every person charged with crime shall have an opportunity to be represented by counsel and to receive a fair trial. Recipients of the services of a public defender's office are only those indigents in whose aid a court or magistrate appoints a public defender to render legal advice and assistance. As noted, the relationship thus created is a strictly professional one.
15 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 15 of 18

Sanchez v. Murphy, 385 F.Supp. 1362, 1365 (D. Nev. 1974) (emphasis added).13
The plaintiff did not initiate this action pro se; rather, acting outside the scope of
its enabling statute and/or any appointment order entered pursuant to that statute, the Federal
Public Defender’s Office, acting on its own initiative, filed this action on the plaintiff’s behalf
for the sole purpose of undermining the finality of a judgment of the State of Tennessee. But
because a § 1983 action is outside the scope of permissible proceedings for which appointment is
authorized under § 3006A(a) — and no appointment has been made in this case in any event —
by initiating this proceeding, the attorneys in the Federal Public Defender’s Office of the Middle
District of Tennessee are engaging in the private practice of law in violation of 18 U.S.C. §
3006A(g)(2)(A) and the Code of Conduct for Federal Public Defender.14 This unauthorized
activity should not be condoned by the Court.15 See also United States v. Howard, 429 F.3d 843,
13 Like the federal statute at issue here, the Nevada statute implicated in Sanchez expressly prohibited the private practice of law.
14 Even beyond the obvious question of whether Federal Defender employees possess the requisite expertise to pursue civil rights actions on behalf of death-sentenced inmates in the specialized area of § 1983 litigation, one practical implication of the private-practice prohibition is that a Federal Public Defender appointed pursuant to 18 U.S.C. § 3006A(g)(2)(A) is deemed an “employee of the government” for purposes of 28 U.S.C. § 2671 (defining “federal employees” for purposes of the Federal Tort Claims Act) and acts within the scope of that employment when representing his clients. See Sullivan v. United States, 21 F.3d 198, 202 (7th Cir. 1994). Aside from being a clear violation of federal law, the private practice of law by a federal defender employee, even if limited to capital cases, undermines the rationale behind the extension of FTCA protections to Federal Defenders while “acting within the scope of his office or employment” and calls into question the existence of immunity in civil litigation initiated on behalf of state inmates.
15 Nor may this matter be deemed an “ancillary matter” related to the plaintiff’s federal habeas corpus action and/or some potential executive clemency proceeding. See, e.g., Howard, 429 F.3d at 849 (noting that a district-wide challenge to the requirement that pretrial detainees wear leg shackles should be made in the context of “actual prosecutions” and not in the civil context, because the Federal Public Defender - the only available attorney to represent the criminal defendants - “cannot pursue a civil class action on their behalf . . . and [indeed] is barred from instituting any action on its own.”)
16 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 16 of 18

849 (9th Cir. 2005) ("The Federal Public Defender cannot pursue a civil class action . . . because there is no provision for the appointment of a Federal Public Defender in a civil action, and the office of Federal Public Defender is barred form instituting any action on its own.").
CONCLUSION In light of the above, defendants Little and Bell, appearing in their official capacity only, move that the plaintiff’s complaint be dismissed for failure to state a claim.
Respectfully submitted, PAUL G. SUMMERS Attorney General
s, Joseph F. Whalen JOSEPH F. WHALEN, BPR #19919 Associate Solicitor General Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-3499
s, Mark A. Hudson MARK A. HUDSON, BPR #12124 Senior Counsel Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-7401
17 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 17 of 18

CERTIFICATE OF SERVICE I hereby certify that on April 19, 2006, a copy of the foregoing response was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court’s electronic filing system.
s, Joseph F. Whalen JOSEPH F. WHALEN, BPR #19919 Associate Solicitor General Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-3499
18 Case 3:06-cv-00340 Document 16-1 Filed 04/19/2006 Page 18 of 18

 
 Alley v. Little, Not Reported in F.Supp.2d (2006)
2006 WL 1207611 Only the Westlaw citation is currently available.
United States District Court, M.D. Tennessee,
Nashville Division.
Sedley ALLEY, Plaintiff, v.
George LITTLE, in his official capacity as Tennessee’s Commissioner of Correction; Ricky Bell, in his official capacity as Warden, Riverbend Maximum Security Institution; John Doe Physicians 1-100; John Doe
Pharmacists 1-100; John Doe Medical Personnel 1-100; John Doe Executioners 1-100; and John Does 1-100, Defendants.
No. 3:06-0340. | May 2, 2006.
Attorneys and Law Firms
Paul R. Bottei, Federal Public Defender’s Office, Nashville, TN, for Plaintiff.
Opinion
MEMORANDUM
ALETA A. TRAUGER, District Judge.
*1 Pending before the court is the Motion to Dismiss filed by defendants George Little and Ricky Bell (Docket No. 15), to which the plaintiff has responded (Docket No. 19), and the defendants have replied (Docket No. 20). For the reasons discussed herein, the defendants’ motion will be held in abeyance pending the United States Supreme Court’s decision in Hill v. McDonough, No. 05-8794 (U.S. argued Apr. 26, 2006).
FACTS and PROCEDURAL HISTORY
The plaintiff is a condemned inmate at Riverbend Maximum Security Institution (“RMSI”) in Nashville, Tennessee.1 His execution is scheduled for 1:00 a.m. on May 17, 2006.
Tennessee law allows executions to occur through either electrocution or lethal injection. On March 30, 2006, the plaintiff informed Commissioner George Little that he objected to the state’s lethal injection protocol. On April 13, 2006, Commissioner Little, asserting that “the grounds on which [the plaintiff] challenge[s] the department’s lethal injection protocol have been considered and rejected by the Tennessee [c]ourts,” rejected any challenge by the plaintiff to the protocol. (See Docket No. 19, Ex. 3.) On April 16, 2006, an affidavit was presented to the plaintiff informing him that he had “the option of electing electrocution over lethal injection as the method of [his] execution.” (See Docket No. 16, Ex. 1.) The plaintiff refused to make a choice or to sign the affidavit. (See id.) His refusal to select one method over the other meant that he would be executed by lethal injection, the presumptive manner of execution in Tennessee.
The lethal injection protocol established in 1998 by the Tennessee Department of Correction (“TDOC”) prescribes the sequence of events that must take place during an execution by lethal injection, such as the plaintiff’s. Under this protocol, Warden Ricky Bell or his deputy warden, accompanied by an “extraction team,2” will, at an appointed time, remove the plaintiff from his cell, secure him to a gurney, and take him to a designated area in the “death chamber,” where the execution is to take place. (Docket No. 1 ¶ 23.) Intravenous (“IV”) technicians then will insert a catheter into each of the plaintiff’s arms and leave the chamber.3 Warden Bell, his deputy, and a chaplain will remain.
1

Alley v. Little, Not Reported in F.Supp.2d (2006)
Tubes attached to the catheters in the plaintiff’s arms will run into a room next to the death chamber, where the executioner will be waiting.4 (See Docket No. 16 at 11.) The executioner will be able to view the plaintiff on a monitor via a camera positioned above the gurney. (See id.) On the warden’s signal, the executioner will inject the following drugs into the tubes in the amount and sequence indicated:
1. sodium pentothal (also known as sodium thiopental): fifty milliliters (five grams diluted by forty-eight milliliters of diluent);
2. saline: fifty milliliters;
3. pancuronium bromide (also known as Pavulon): fifty milliliters;
*2 4. pancuronium bromide (also known as Pavulon): fifty milliliters;
5. saline: fifty milliliters;
6. potassium chloride: fifty milliliters; and
7. potassium chloride: fifty milliliters.
The syringes containing these drugs will be prepared by Warden Bell, who has no medical training. All drugs are to be administered within a span of two to two and one-half minutes and will have been obtained per Warden Bell’s request to the TDOC. Five minutes after the drugs have been injected into the tubes, a physician will examine the plaintiff and pronounce whether he has died. (See id. at 12.) According to the plaintiff,5 sodium pentothal, the first drug in the sequence, is a barbiturate used for its alleged anesthetic effects. While it takes effect quickly, the drug also wears off “in a matter of minutes.” (See Docket No. 1 ¶ 39.) It is used when performing surgeries because it enables an anesthesiologist quickly to awaken a patient, should surgical complications arise. The plaintiff claims that, when administered according to the Tennessee protocol, this drug does not completely anesthetize an inmate undergoing lethal injection.
The second drug, pancuronium bromide, is a neuromuscular blocking agent that paralyzes an individual but does not affect his brain or nervous system. Accordingly, it does not impact consciousness or the ability to think or to feel pain. It does, however, paralyze the diaphragm, which makes breathing impossible. It also paralyzes all skeletal muscles, including those in an individual’s face, such that an individual who has been injected with this drug would be unable to express pain or terror, should he experience it. Tennessee has prohibited the use of pancuronium bromide in the euthanizing of animals. The plaintiff claims that the suffocation that results from the use of this drug is the actual cause of death in an inmate executed under the protocol.
Potassium chloride, the third drug, is used to cause cardiac arrest. Because it activates all nerve fibers in the venous system, this drug, used alone, produces extremely painful effects. The plaintiff asserts that, because inmates executed under the protocol are not adequately anesthetized, they experience this pain before they die.
In 1989, the Tennessee Supreme Court affirmed the plaintiff’s death sentence. On January 14, 2004, that court set for the plaintiff a June 3, 2004 execution date. On May 19, 2004, the United States District Court for the Western District of Tennessee granted his request for a stay of execution based on a then-pending Sixth Circuit decision regarding the proper treatment of certain motions in habeas cases. (See Docket No. 16 at 4.) Following the resolution of these issues, the Tennessee Supreme Court, on March 29, 2006, set the plaintiff’s current execution date. Using § 1983 as the vehicle for his claims, he brought this challenge to Tennessee’s lethal injection protocol on April 11, 2006.
MEMORANDUM
*3 The United States Supreme Court heard oral arguments on April 26, 2006 in Hill v. McDonough. See Hill v. McDonough, No. 05-8794 (U.S. argued Apr. 26, 2006). At issue in Hill is whether a death-sentenced inmate may use § 1983 to challenge the lethal injection protocol to be used during his execution or whether his claim instead must be recharacterized as a habeas corpus petition. See id., Brief of Respondent at I; see also 42 U.S.C. § 1983 (2000). Although the defendants in the case at
2

Alley v. Little, Not Reported in F.Supp.2d (2006)
hand have recognized that Hill is directly relevant to whether the plaintiff’s current formulation of his claim is permissible, they “assume arguendo ” that it is. (See Docket No. 16 at 5 n. 4) The defendants’ assumption, however, does not permit this court to ignore clear Sixth Circuit precedent to the contrary.
The Sixth Circuit explicitly has determined that “a challenge to a method of execution, whatever denominated ... is to be treated as a habeas petition.” See In re Sapp, 118 F.3d 460, 464 (1997); see also In re Williams, 359 F.3d 811, 812 (6th Cir.2004) (“The § 1983 action challenging the method of administering drugs at [an inmate’s] execution is ... to be treated as a second habeas action under current Sixth Circuit decisions.”). Accordingly, under existing precedent, the court here would need to treat the plaintiff’s § 1983 challenge to Tennessee’s lethal injection protocol as a habeas action.
This court is mindful, however, of numerous instances when the Sixth Circuit has directed a district court to hold a claim in abeyance once the Supreme Court has granted certiorari on the issue facing the lower court. See, e.g., Figel v. Overton, 121 Fed. App’x 642, 647 (6th Cir.2005); Ullmann v. Ohio Bureau of Employment Servs., No. 98-3390, 1999 WL 1204768, at *3 (6th Cir. Dec. 13, 1999) (unpublished). Here, because the Supreme Court not only has granted certiorari on the relevant issue facing this court, see Hill v. Crosby, 126 S.Ct. 1189 (2006) (granting certiorari), but also has heard arguments thereon, see Hill v. McDonough, No. 05-8794 (U.S. argued Apr. 26, 2006), holding the case in abeyance is particularly appropriate.
Because the defendants assumed arguendo that the plaintiff properly brought his claim under § 1983, the plaintiff did not need to attempt to show that, if converted to a habeas petition, his claim would survive. Accordingly, were this court to convert the plaintiff’s claim, he may be precluded from seeking relief. See In re Williams, 358 F.3d at 813 (denying an inmate’s method-of-execution challenge upon its conversion to a habeas action after finding that “petitioner does not seriously claim it meets the requirements for a second petition”). While the Sixth Circuit has chosen the conversion option in the past, even despite the Supreme Court’s grant of certiorari on the relevant issue, it does not appear to have done so once the case has actually been argued. See id. (rejecting an inmate’s request for a stay of execution, despite the Supreme Court’s having granted certiorari on Nelson v. Campbell, 540 U.S. 1046 (2003), which was to have addressed the same question now at issue in Hill ).
*4 With a decision rapidly approaching as to whether § 1983 claims must be converted to habeas actions, the court will wait for guidance from the Supreme Court before determining whether such a conversion is appropriate for the plaintiff’s claim. See Ohio Envtl. Council v. S.D. Ohio, 565 F.2d 393, 396 (6th Cir.1977) (noting that “the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes in its docket with economy of time and effort for itself, for counsel, and for litigants”) (internal quotation omitted); Stephen Henderson, Justices Appear Split on Lethal-Injection Case; A Fla. Inmate Says Injection Could Cause Great Pain and is Thus Unconstitutionally Cruel, The Phila. Inquirer, April 27, 2006, at A12 (noting that a decision in Hill is anticipated by June 2006). Accordingly, the court will hold this case in abeyance pending a decision in Hill.

CONCLUSION
The defendants’ Motion to Dismiss will be held in abeyance pending the Supreme Court’s decision in Hill v. McDonough, No. 05-8794 (U.S. argued Apr. 26, 2006). A stay of execution will not issue at this time.
An appropriate order will enter.

Footnotes

1

Unless otherwise noted, all facts have been drawn from the plaintiff’s Complaint (Docket No. 1) and from his Response to Motion

to Dismiss of Defendants Little and Bell (Docket No. 19).

2

The protocol is silent as to how this team is to be selected and whether its members are to have any special training or

qualifications.

3

A physician who is able to perform a “cutdown procedure” if the IV technicians are unable to find an adequate vein in which to

insert the catheters is to be waiting in a designated area. (See Docket No. 1 ¶ 25.) The protocol is silent as to whether this physician

must have any particular qualifications.

3

Alley v. Little, Not Reported in F.Supp.2d (2006)

4

The executioner is not a doctor, nor is he or she required to have any particular training-medical or otherwise-or qualifications.

(See Docket No. 11 at 2 n. 3; Docket No. 1 ¶ 22.)

5

All descriptions of the drugs used during the lethal injection protocol are per the plaintiff’s depictions. (See Docket No. 1 ¶¶

36-74.) Similar descriptions have been used, however, in prior cases involving the same drugs. See, e.g., Morales v. Hickman, 438

F.3d 926, 928-29 (9th Cir.2006); Hill v. Crosby, No. 4:06-CV-032-SPM, 2006 WL 167585, at *2 (N.D.Fla. Jan. 21, 2006) (slip

op.); Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 302 (Tenn.2005).

4

 
 Alley v. Little, Not Reported in F.Supp.2d (2006)
2006 WL 1697207 Only the Westlaw citation is currently available.
United States District Court, M.D. Tennessee, Nashville Division.
Sedley ALLEY, Plaintiff, v.
George LITTLE, in his official capacity as Tennessee’s Commissioner of Correction; Ricky Bell, in his official capacity as Warden, Riverbend Maximum Security Institution; John Doe Physicians 1-100; John Doe
Pharmacists 1-100; John Doe Medical Personnel 1-100; John Doe Executioners 1-100; and John Does 1-100, Defendants.
No. 3:06-0340. | June 14, 2006.
Attorneys and Law Firms
Paul R. Bottei, Federal Public Defender’s Office, Nashville, TN, for Plaintiff.
Joseph F. Whalen, III, Mark Alexis Hudson , Tennessee Attorney General’s Office, Nashville, TN, for Defendants.
Opinion
MEMORANDUM
TRAUGER, J.
*1 Pending before the court is the Motion to Dismiss of Defendants Little and Bell (Docket No. 15), to which the plaintiff has responded (Docket No. 19) and the defendant has replied (Docket No. 20). Also pending is the plaintiff’s Motion for Status Conference (Docket No. 35), to which the defendant has responded (Docket No. 37). On May 2, 2006, the court held the Motion to Dismiss in abeyance pending the United States Supreme Court’s decision in Hill v. McDonough, No. 05-8794, 2006 WL 1584710 (U.S. June 12, 2006) (slip op.). (See Docket No. 22.) The Supreme Court issued its decision in Hill on June 12, 2006. See id. For the reasons discussed herein, the Motion to Dismiss of Defendants Little and Bell will be granted and, accordingly, the plaintiff’s Motion for Status Conference will be denied.
PROCEDURAL HISTORY
On May 2, 2006, pending the Supreme Court’s decision in Hill, this court held in abeyance the Motion to Dismiss of Defendants Little and Bell. (See Docket No. 22.) The issue before the Supreme Court in Hill was whether a death-sentenced inmate who sought to enjoin his execution in order to pursue a challenge to his state’s lethal injection protocol could bring such a challenge under 42 U.S.C. § 1983 or whether the challenge instead had to be characterized as a habeas corpus petition under 28 U.S.C. § 2254. See Hill, --- U.S. ----, at ----, 126 S.Ct. 2096, --- L.Ed.2d ----, at ----, 2006 WL 1584710, at *3. Citing the Supreme Court’s rapidly approaching decision in Hill, this court held the plaintiff’s case in abeyance because, as in Hill, the plaintiff’s challenge to Tennessee’s lethal injection protocol used § 1983 as a vehicle, despite the Sixth Circuit’s clear instruction that such claims were to be treated as habeas petitions. (See Docket No. 21 at 5, 7.)
On May 4, 2006, with Hill not yet decided, the plaintiff sought injunctive relief to prohibit the defendants from executing him as planned. (See Docket No. 23.) The court granted the plaintiff’s Motion for Preliminary Injunction on May 11th, 2006. (See Docket No. 28.) That same day, the defendants appealed this court’s decision to the United States Court of Appeals for the Sixth Circuit. (See Docket No. 29.)
The following day, a Sixth Circuit panel vacated this court’s injunction. See Alley v. Little, No. 06-5650, 2006 WL 1313365 1

Alley v. Little, Not Reported in F.Supp.2d (2006)
(6th Cir. May 12, 2006) (slip op.), reh’g en banc denied, Alley v. Little, --- F.3d ----, No. 06-5650, 447 F.3d 976, 2006 WL 1320433 (6th Cir. May 16, 2006). In so doing, the Sixth Circuit assumed arguendo that the plaintiff’s motion was properly filed as a § 1983 claim and determined that “even so understood, this suit affords no basis for the stay that has been granted.” See id. at *2. The panel based its determination on, among other things, “the small likelihood of Alley’s success on the merits” and the “unnecessary delay” with which, it found, the plaintiff had challenged the protocol. See id. at *3.

ANALYSIS
*2 With its issuance of Hill earlier this week, the Supreme Court reiterated a state’s “important interest in the timely enforcement of a sentence” and emphasized that “the federal courts can and should protect states from dilatory ... suits.” See Hill, --- U.S. ----, at ----, 126 S.Ct. 2096, --- L.Ed.2d ----, at ----, 2006 WL 1584710, at *8.1 The Court also highlighted the equitable powers of the federal courts “to dismiss suits [that are] speculative or filed too late in the day.” See id. at *10; see also Smith v. Johnson, 440 F.3d 262, 263 (5th Cir.2006). According to the Sixth Circuit, this case was filed too late in the day. Alley, 2006 WL 1313365 at *6 (“we take note of the unnecessary delay with which Alley brought his challenge to Tennessee’s lethal injection protocol”). Although this court remains concerned about the interaction between a robust application of the “unnecessary delay” doctrine and traditional concepts of ripeness in the death penalty context, see Martinez-Villareal v. Stewart, 118 F.3d 628, 630 (9th Cir.1997), aff’d, 523 U.S. 637, 640, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), it is not the function of this court to address such concerns, but rather to apply the law of the Sixth Circuit. The law of the Sixth Circuit is that unnecessary delay warrants dismissal, and that this case was unnecessarily delayed. See Alley, 2006 WL 1313365 at *6. This action, therefore, must be dismissed.

CONCLUSION
In accordance with the Sixth Circuit’s finding that the plaintiff unduly delayed the filing of his challenge to Tennessee’s lethal injection protocol, the Motion to Dismiss of Defendants Little and Bell will be granted and, accordingly, the plaintiff’s Motion for Status Conference will be denied.
An appropriate order will enter.

Footnotes

1

The Supreme Court in Hill also found that plaintiffs such as the one in this case could properly use § 1983 as a vehicle for their

challenges to lethal injection protocols. See Hill v. McDonough, No. 05-8794, 2006 WL 1584710, at *3 (U.S. June 12, 2006) (slip

op.). Even given the plaintiff’s renewed ability to pursue his challenge under this statute, however, the Sixth Circuit’s

determination that he was dilatory in his pursuit of these claims ultimately is fatal to his case.

2

 
 CM/ECF - DC V2.5 (October 2005) - Docket Report

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BROWN, CASE-CLOSED, CASE-REOPENED, DEATH-PENALTY-CASE
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:06-cv-00340

Alley v. Little et al Assigned to: District Judge Aleta A. Trauger Cause: 42:1983 Prisoner Civil Rights
Plaintiff Sedley Alley

Date Filed: 04/11/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Paul R. Bottei Federal Public Defender's Office 810 Broadway Suite 200 Nashville, TN 37203 (615) 736-5047 Email: paul_bottei@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant George Little in his official capacity as Tennessee's Commissioner of Correction
Defendant Ricky Bell in his official capacity as Warden, Riverbend Maximum Security Institution

represented by Joseph F. Whalen, III Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741-3491 Email: joe.whalen@state.tn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Alexis Hudson Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741-7401 Fax: (615) 532-2541 Email: mark.a.hudson@state.tn.us LEAD ATTORNEY
represented by Joseph F. Whalen, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant John Doe Physicians 1-100
Defendant John Doe Pharmacists 1-100
Defendant John Doe Medical Personnel 1-100
Defendant John Doe Executioners 1-100
Defendant John Does 1-100

Mark Alexis Hudson (See above for address) LEAD ATTORNEY

Date Filed 04/11/2006
04/11/2006 04/11/2006 04/11/2006 04/11/2006 04/11/2006
04/11/2006

#

Docket Text

1 COMPLAINT against John Does 1-100, George Little, Ricky Bell, John Doe Physicians 1-100, John Doe Pharmacists 1-100, John Doe Medical Personnel 1-100, John Doe Executioners 1-100 , filed by Sedley Alley. NO summons issued.(rm) (Entered: 04/11/2006)
2 APPLICATION to Proceed in forma pauperis by Sedley Alley. Responses due by 4/28/2006 (rm) (Entered: 04/11/2006)
3 ORDER granting 2 Motion for Leave to Proceed in forma pauperis; process shall issue to the defts. Signed by Judge Aleta A. Trauger on 4/11/06. (hv) (Entered: 04/11/2006)
4 MOTION Status Conference by Sedley Alley. Responses due by 4/28/2006 (Bottei, Paul) (Entered: 04/11/2006)
5 Summons issued as to George Little, Ricky Bell, and TN Attorney General. Summons, complaint, 4/11/06 order, and USM-285 forms forwarded to US Marshal for service. (hv) (Entered: 04/11/2006)
CERTIFICATES OF SERVICE: must contain the full mailing address for all opposing counsel, whether they are served electronically by filing with CM/ECF system or by US Mail (Local Rule 8(a)(4)). Please file an appropriate certificate of service for the Motion for Status Conference (do not re-file the motion). (hv) (Entered: 04/11/2006)
6 CERTIFICATE OF SERVICE by Sedley Alley re 4 MOTION Status Conference (Bottei, Paul) (Entered: 04/11/2006)

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04/12/2006 04/12/2006 04/13/2006 04/13/2006 04/13/2006 04/14/2006
04/14/2006 04/17/2006 04/17/2006
04/18/2006 04/19/2006 04/19/2006

7 ORDER TRANSFERRING CASE to the USDC WD/TN - Western Division; the pltf has a pending case there. The pltf's motion for status conference is denied as moot. Signed by Judge Aleta A. Trauger on 4/12/06. (hv) (Entered: 04/12/2006)
8 MOTION for Reconsideration re 7 Order Dismissing Case Transferring the Case by Sedley Alley. Responses due by 5/1/2006 (Bottei, Paul) (Entered: 04/12/2006)
9 RESPONSE to Motion re 8 MOTION for Reconsideration re 7 Order Dismissing Case Transferring the Case filed by George Little, Ricky Bell. (Whalen, Joseph) (Entered: 04/13/2006)
CERTIFICATES OF SERVICE: must contain the full mailing address for all opposing counsel, whether they are served electronically by filing with CM/ECF system or by US Mail (Local Rule 8(a)(4)). Please file an appropriate certificate of service for the Response to Motion (#9). (hv) (Entered: 04/13/2006)
10 ORDER: granting 8 Motion for Reconsideration and 7 Order Dismissing Case is VACATED; this case will remain in this district. Granting 4 Motion for Status Conference; Status Conference set for 4/14/06 at 1:00 pm. Signed by Judge Aleta A. Trauger on 4/13/06. (hv) (Entered: 04/13/2006)
11 NOTICE by Sedley Alley Plaintiff's Postion Regarding Status of the Case (Attachments: # 1 Exhibit A-Affidavit of Lubarsky# 2 Exhibit A-Affidavit of Lubarsky Ex. 1 Lubarsky CV# 3 Exhibit A-Affidavit Lubarsky Ex. 2 Article# 4 Exhibit B-Affidavit Ramsey# 5 Exhibit C-Excerpts From Ricky Bell Deposition)(Bottei, Paul) (Entered: 04/14/2006)
12 Minute Entry for proceedings held before Judge Aleta A. Trauger: Status Conference held on 4/14/2006. Discovery stayed. Dispositive mtn to be filed by 4/19/06, response filed by 4/26/06, reply filed by 4/28/06. (Court Reporter Becky Cole.) (dt) (Entered: 04/14/2006)
NOTE TO FILER: Re: Document No. 11; Affidavits if original should be filed as separate entries using the event Affidavit found under the category Other Documents. Exhibits should be filed as attachments not included with the affidavit. (km, ) Modified text on 4/17/2006 (km, ). (Entered: 04/17/2006)
13 ORDER: Status conference held 4/14/06. Defts shall file their dispositive mtn by 4/19/2006, pltf shall respond by 4/26/06 and defts may reply by 4/28/06. Following a decision on this dispositive mtn, if the case is not fully dismissed, the Court will set an early status conference. Discovery is stayed pending further orders. Signed by Judge Aleta A. Trauger on 4/17/06. (gi, ) (Entered: 04/17/2006)
14 SUMMONS returned executed by Sedley Alley. Ricky Bell served on 4/13/2006, answer due 5/3/2006. (dt) (Entered: 04/19/2006)
15 First MOTION to Dismiss by George Little, Ricky Bell. Responses due by 5/8/2006 (Hudson, Mark) (Entered: 04/19/2006)
16 MEMORANDUM in Support of 15 First MOTION to Dismiss, 1 Complaint filed by George Little, Ricky Bell. (Attachments: # 1 Exhibit Affidavit to Elect Method of Execution# 2 Appendix Unpublished Cases cited in Memorandum in Support)(Hudson, Mark) (Entered: 04/19/2006)

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04/28/2006 05/02/2006 05/02/2006 05/04/2006
05/08/2006 05/09/2006 05/10/2006 05/11/2006 05/11/2006

17 SUMMONS returned executed on Paul G. Summer, Attorney General, on 4/17/06 by Sedley Alley. (gi, ) (Entered: 04/19/2006)
NOTE TO FILER: Re: Document Nos. 15-16; In the future, the certificate of Service should include the names and addresses for all persons served, whether electronically or by mail. (km, ) (Entered: 04/20/2006)
18 SUMMONS returned executed by USM; George Little served on 4/13/2006, answer due 5/3/2006. (hv) (Entered: 04/25/2006)
19 RESPONSE to Motion re 15 First MOTION to Dismiss Of Defendants Little and Bell filed by Sedley Alley. (Attachments: # 1 Exhibit 1-TN Sup. Ct. Order# 2 Exhibit 2-Bottei letter to Little# 3 Exhibit 3-Little Letter to Bottei# 4 Exhibit 4-Affidavit to Elect Method of Execution# 5 Exhibit 5-Morales v. Hickman)(Minton, Christopher) (Entered: 04/26/2006)
20 REPLY to Response to Motion re 15 First MOTION to Dismiss filed by George Little, Ricky Bell. (Hudson, Mark) (Entered: 04/28/2006)
21 MEMORANDUM AND OPINION re defts' Motion to Dismiss signed by Judge Aleta A. Trauger on 5/2/06. (hv) (Entered: 05/02/2006)
22 ORDER: For the reasons stated in the accompanying Memorandum, defts' 15 First MOTION to Dismiss will be HELD IN ABEYANCE pending the US Supreme Court's decision in 'Hill v. McDonough'. Signed by Judge Aleta A. Trauger on 5/2/06. (hv) (Entered: 05/02/2006)
23 MOTION for Preliminary Injunction by Sedley Alley. Responses due by 5/22/2006 (Attachments: # 1 Exhibit 1-Order Roane v. Gonzales# 2 Exhibit 2-Order Taylor v. Crawford# 3 Exhibit 3-Order Abu-Ali v. Bell# 4 Exhibit 4-Order Johnson v. Bell Western District# 5 Exhibit 5-Order Johnson v. Bell 6th Circuit# 6 Exhibit 6-Order Workman v. Bell Western District# 7 Exhibit 7-Order Workman v. Bell 6th Circuit# 8 Exhibit 8-Order Alley v. Bell Western District# 9 Exhibit 9-Order Alley v. Bell 6th Circuit# 10 Exhibit 10-Order Alley v. Bell TN Sup Ct. 1-05# 11 Exhibit 11-Order Alley v. Bell TN Sup Ct. 3-06)(Bottei, Paul) (Entered: 05/04/2006)
24 RESPONSE to Motion re 23 MOTION for Preliminary Injunction filed by George Little, Ricky Bell. (Attachments: # 1 Exhibit Unpublished Court Order# 2 Exhibit Coe Autopsy Report# 3 Exhibit Testimony of Dr. Bruce Levy in Abdur'Rahman)(Hudson, Mark) (Entered: 05/08/2006)
25 REPLY to Response to Motion re 23 MOTION for Preliminary Injunction filed by Sedley Alley. (Attachments: # 1 Exhibit 1-George Little Letter 4-6-06)(Bottei, Paul) (Entered: 05/09/2006)
26 NOTICE of Filing by Sedley Alley (Attachments: # 1 Exhibit 1-Order Jackson v. Taylor)(Bottei, Paul) (Entered: 05/10/2006)
27 MEMORANDUM AND OPINION re Motion for Preliminary Injunction signed by Judge Aleta A. Trauger on 5/11/06. (hv) (Entered: 05/11/2006)
28 ORDER: For the reasons expressed in the accompanying Memorandum, granting 23 Motion for Preliminary Injunction; the pltf's execution scheduled for 5/17/06 is STAYED pending further orders of the court. Signed by Judge Aleta A.

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05/11/2006 05/11/2006 05/11/2006 05/12/2006 05/16/2006 05/18/2006 05/24/2006
06/06/2006 06/07/2006 06/09/2006 06/13/2006
06/14/2006 06/14/2006 06/14/2006 06/19/2006

Trauger on 5/11/06. (hv) (Entered: 05/11/2006)
29 NOTICE OF APPEAL as to 28 Order on Motion for Preliminary Injunction, by George Little, Ricky Bell. (Hudson, Mark) (Entered: 05/11/2006)
USCA Case Number 06-5650 for 29 Notice of Appeal filed by Ricky Bell & George Little; assignment of Patricia Elder as case manager. (gi, ) (Entered: 05/11/2006)
30 USCA Appeal Fees received $ 455 receipt number 109913 re 29 Notice of Appeal filed by Ricky Bell, George Little. (hv) (Entered: 05/11/2006)
31 ORDER of USCA as to 29 Notice of Appeal filed by Ricky Bell and George Little vacating the preliminary injunction and stay of execution. (mk, ) (Entered: 05/15/2006)
32 ORDER of USCA as to 29 Notice of Appeal denying petition for rehearing en banc. (mk, ) (Entered: 05/16/2006)
33 MANDATE of USCA as to 29 Notice of Appeal filed by Ricky Bell, George Little (mk, ) (Entered: 05/18/2006)
34 TRANSCRIPT prepared by OCR Becky Cole for Status Conference held on 4/14/06 before Judge Trauger.(This document is NOT available on-line. Contact the court reporter at 615-726-4893 to purchase a copy) (hv) (Entered: 05/24/2006)
35 MOTION For Status Conference by Sedley Alley. Responses due by 6/23/2006 (Bottei, Paul) (Entered: 06/06/2006)
36 ORDER: the defts shall file a response to pltf's Motion for Status Conference by 6/9/06. Signed by Judge Todd J. Campbell on 6/7/06. (hv) (Entered: 06/07/2006)
37 RESPONSE to Motion re 35 MOTION For Status Conference filed by George Little, Ricky Bell. (Hudson, Mark) (Entered: 06/09/2006)
38 ORDER: the 35 MOTION For Status Conference filed by Sedley Alley will be held in abeyance pending a decision re defts' Motion to Dismiss, on which the Court expects to rule this week. Signed by Judge Todd J. Campbell on 6/13/06. (hv) (Entered: 06/13/2006)
39 MEMORANDUM AND OPINION re defts' Motion to Dismiss signed by Judge Aleta A. Trauger on 6/14/06. (hv) (Entered: 06/14/2006)
40 ORDER: For the reasons stated in the accompanying Memorandum, denying 35 Motion for Status Conference, granting 15 Motion to Dismiss. Signed by Judge Aleta A. Trauger on 6/14/06. (hv) (Entered: 06/14/2006)
41 Docket entry no. 40 was entered on the docket in compliance with Rule 58 and/or Rule 79(a) FRCP, on 6/14/06 by hv. (hv) (Entered: 06/14/2006)
42 NOTICE OF APPEAL as to 40 Order on Motion for Miscellaneous Relief, Order on Motion to Dismiss, 39 Memorandum & Opinion by Sedley Alley. (Bottei, Paul) (Entered: 06/19/2006)

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06/28/2006
06/29/2006 06/29/2006 06/29/2006 07/03/2006 07/17/2006
07/17/2006

43 AMENDED ORDER of USCA as to 42 Notice of Appeal filed by Sedley Alley denying the petition for hearing en banc (mk, ) Modified on 7/3/2006 (aef, ). (Entered: 06/28/2006)
44 INFORMATION COPY from 6CCA denying the petition for rehearing en banc of the decision issued 6/24/06. (mk, ) (Entered: 07/03/2006)
45 AMENDED INFORMATION COPY from 6CCA denying petition for rehearing en banc of decision issued 6/24/06. (mk, ) (Entered: 07/03/2006)
47 MANDATE of USCA as to 42 Notice of Appeal filed by Sedley Alley, (mk, ) (Entered: 07/03/2006)
DE 46 docketed in wrong case & removed from docket. Redocketed in 3:06-0646. (aef, ) (Entered: 07/03/2006)
48 NOTICE from US Supreme Court (application number 05A1213) that application for stay of execution of sentence of death is denied. Petition for writ of certiorari is also denied. (mk, ) (Entered: 07/17/2006)
49 NOTICE from US Supreme Court (application number 05A1209) that application for stay of execution of sentence of death is denied. Petition for writ of certiorari is also denied. (mk, ) (Entered: 07/17/2006)

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 «- -d'Jjrjo

(ltJLdu..UJ?1L- Supreme Court of the United States

~fREJC.EiV~E~D

Office of the Clerk Washington, DC 20543-0001
William K, Suter'

Clel'k of the Court

LEONARD GREEN, Clerk

June 27, 2006

(202) 479-3011

Clerk
us. Court of Appeals for the Sixth Circuit
524 Potter Stewart Courthouse 100 East Fifth Street Cincinnati, OH 45202

Re: Sedley Alley v. Georg·e Little, Commissioner, Tennessee Department of Corrections, et al. No. 05-10959 Application No. 05A1209 (Your No. 06-5650)

Dear Clerk:

The Court today entered the enclosed order in the above-entitled case

Very truly yours,

William K Suter, Clerk

BY~

t./f~' -,....'1

i L

I I

Troy D Cahill Staff Attorney

Case 3:06-cv-00340 Document 48 Filed 07/17/2006 Page 1 of 2

tJ' -003q6
( ) tM..JU4R...z.9...._
(ORDER LIST: 548 U. S.)

TUESDAY, JUNE 27, 2006 CERTIORARI DENIED

; f'l'!j\
. CU,(AFID GFIEEN, Clerk

05-10959 (05A1209)

ALLEY, SEDLEY V . LITTLE, COMM'R, TN DOC, ET AL .
The application for stay of execution of sentence of death presented to Justice Stevens and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

Case 3:06-cv-00340 Document 48 Filed 07/17/2006 Page 2 of 2

 
 452 F.3d 621 (2006)
Sedley ALLEY, Plaintiff-Appellant, v.
George LITTLE, in his official capacity as Tennessee's Commissioner of Corrections, et al., Defendants-Appellees.
No. 06-5816.
United States Court of Appeals, Sixth Circuit.
June 27, 2006.
Paul R. Bottei, Asst. F.P. Defender, Federal Public Defender's Office, Nashville, TN, for Plaintiff-Appellant.
Mark A. Hudson, Asst. Atty. General, Joseph F. Whalen, III, Asst. Atty. General, Office of the Attorney General, Nashville, TN, for Defendants-Appellees.
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,[*] CLAY, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.
622 *622 ORDER
The court having received a petition for rehearing en banc of the decision issued June 24, 2006, and the petition having been circulated to all non-recused active judges of this court, less than a majority of whom favored the suggestion,
It is ORDERED that the petition be and hereby is denied. The mandate shall issue forthwith.
BOYCE F. MARTIN, JR., Circuit Judge, with whom DAUGHTREY, MOORE, COLE, and CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc.
I.
Sedley Alley seeks to enjoin the state of Tennessee from executing him through its lethal injection procedure, which he alleges will cause him to experience "the terrorizing and excruciating experience of suffocation without the ability to move or to express the pain and suffering which he is experiencing," and "extreme and excruciating pain" throughout the nerve fibers of his venous system, all without providing him sufficient anesthesia to prevent him from feeling this pain. Compl. ¶¶ 56, 68-69. According to Alley, Tennessee has prohibited using one of the chemicals involved in the lethal injection protocol to euthanize animals. Id. ¶ 81 (citing Tenn. Code Ann. 44-17-303(c)). In addition to these allegations, the district court found that Alley "provided an adequate showing on the merits of his Eighth and Fourteenth Amendment claims" through his provision of "expert testimony that the current lethal injection protocol causes excruciating deaths." D. Ct. Op., Case No. 3:06-cv-00340, at 6 (M.D.Tenn. May 11, 2006). If Alley's allegations prove true, he will have presented a meritorious claim that the state's lethal injunction procedure violates the Eighth Amendment's prohibition of cruel and unusual punishment.
Despite the grave implications of cruel and unusual punishment raised in Alley's claim, a panel of this court reversed the district court's stay of his execution. In subsequently ruling on the state's still pending motion to dismiss, the district court read the panel's rebuke of its earlier decision to be so complete that it felt compelled to grant the state's motion to dismiss based on the panel opinion. Compare Alley v. Little, No 3:06-0340, 2006 WL 1454740, at *3, 2006 U.S. Dist. LEXIS 32319, at *10 (M.D.Tenn. May 11, 2006) (stating that given Alley's promptness in filing, "it would be strange jurisprudence to dismiss this action for `undue delay.'") with Alley v. Little, No. 3:06-0340, 2006 WL 1697207 (M.D. Tenn. June 14, 2006) (finding that "[a]lthough this court remains concerned about the interaction between a robust application of the `unnecessary delay doctrine and traditional

concepts of ripeness in the death penalty context, . . . [t]he law of the Sixth Circuit is that . . . this case was unnecessarily delayed.'"). Now in its latest opinion, that same panel has affirmed the district court's dismissal of the case, despite the fact that since its last decision, the Supreme Court has unanimously determined that a death row inmate can challenge the method of his execution under 42 U.S.C. § 1983, just as Alley seeks to do. Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, ___ L.Ed.2d ___ (2006). I would reverse the panel's decision, not only because Alley presents claims that create serious concerns about Tennessee's lethal injection protocol, but because I believe the panel's determinations that Alley has little likelihood of success on the merits and that he was dilatory in filing his complaint are simply incorrect.
II.
623 Last month, on May 11, 2006, the district court found that a stay of Alley's *623 execution was appropriate to preserve the status quo until the issuance of the Supreme Court's then pending decision in Hill, and also found support for the stay based on the traditional four factor analysis for granting a preliminary injunction. In reversing the stay, the panel presumed that Alley could bring a section 1983 claim, and ruled that even if he was able to challenge the lethal injection protocol, the district court abused its discretion by staying the execution. In addition to stating that the pendency of Hill did not require a stay because it would be unclear whether Alley could bring a successful challenge even if he could proceed under section 1983, the panel summarily rejected the district court's analysis of the four factors relevant to the issuance of a preliminary injunction. The panel's reasoning was that existing law "offers no basis for finding lethal injunction protocols unconstitutional." I was joined by four colleagues in dissenting from this Court's denial of rehearing en banc. Alley v. Little, No. 06-5650, 2004 Fed.App. 0164P, 2006 WL 1313365 (6th Cir. May 12, 2006). In its recent ruling in question here, the panel stands by this erroneous determination.
I believe that the panel's conclusion that Alley has little likelihood of succeeding on the merits is wrong. Despite the panel's suggestion, it is not necessary that Alley rely on prior cases finding the lethal injection protocol to be cruel and unusual punishment. If this was the primary relevant inquiry, as the panel opinions suggest, no challenge to a method of execution would ever go forward, no matter how indifferent a state became to the pain and suffering inflicted by the process, simply because nobody else has successfully challenged the procedure before. Rather, in order to ultimately prevail, Alley needs to prove that Tennessee's current protocol amounts to cruel and unusual punishment based on "the evolving standards of decency that mark the progress of a maturing society." Roper v. Simmons, 543 U.S. 551, 561, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).
As the district court initially found, Alley has made more than a sufficient showing here to establish a likelihood of success on his Eighth Amendment claim. Indeed, the fact that Tennessee allows a chemical to be used in executing humans that it prohibits for use in euthanizing animals suggests that the state's own evolving standards of decency find its procedure offensive. Moreover, Alley has introduced evidence that Tennessee's most recently executed prisoner consciously suffered excruciating pain during his execution by lethal injection. D. Ct. Record, R. 11, Affidavit of David Lubarsky, filed April 14, 2006. The panel has ignored these facts altogether in both of its opinions.
The district court's findings on this issue, and its discretion to preserve the status quo were entirely ignored by the initial panel decision. See Mascio v. Public Emples. Retirement Sys., 160 F.3d 310, 312 (6th Cir.1998) ("The granting of a preliminary injunction is subject to appellate review under an `abuse of discretion' standard. The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard."). The panel decision did not find any erroneous findings of fact, improper application of governing law, or use of erroneous legal standards by the district court, but instead substituted its judgment for the district court's, in contravention of this Court's precedent. See id. The current panel decision similarly relies on its determination that Alley is not likely to succeed in his challenge, in addition to its finding of unnecessary delay, based on the simple observation that no federal court 624 has found lethal injection to be cruel and unusual *624 punishment. This fact is largely irrelevant, and ignores Alley's troubling allegations and actual likelihood of success. The panel's conclusion to the contrary should not support either its reversal of the stay or the dismissal of Alley's case.

III.
Both panel opinions determined that Alley delayed in filing the present action and found this to be a basis for reversing the stay and dismissing the case. In its prior opinion, however, the district court explicitly found that Alley acted promptly and in good faith, given the procedural posture of his pending legal challenges and the timing of the state's determination of his execution protocol. In light of the panel's initial opinion, however, the district court noted in its subsequent opinion that
[a]lthough this court remains concerned about the interaction between a robust application of the `unnecessary delay' doctrine and traditional concepts of ripeness in the death penalty context, it is not the function of this court to address such concerns, but rather to apply the law of the Sixth Circuit. The law of the Sixth Circuit is that unnecessary delay warrants dismissal, and that this case was unnecessarily delayed.
Alley v. Little, No. 3:06-0340, 2206 WL 1697207 (M.D. Tenn. June 14, 2006).
I do not believe that Alley delayed unnecessarily in bringing his challenge to the lethal injection protocol. Perhaps most significantly, in this circuit, until the Supreme Court's ruling in Hill, Alley could not have even brought his present challenge under section 1983, as this Court's precedent would have deemed it a subsequent habeas petition. See In re Sapp, 118 F.3d 460, 464 (6th Cir.1997) (holding that "a challenge to a method of execution, whatever denominated (Rule 60(b), § 1983, or otherwise) is to be treated as a habeas petition." (internal citation omitted)). Thus it was only the decision in Hill that made Alley's challenge possible, and by filing before that decision was even issued and seeking a stay to await its result, he showed an eagerness to litigate his claim as soon as possible, rather than delaying it. Given that Sapp prevented Alley from filing suit until two weeks ago, it is difficult to comprehend how Alley could be viewed as dilatory in filing the present action. Cf. Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) (stating that "there is 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.") As a matter of this Court's prior precedent Alley simply could not have brought his claim before Sapp was reversed by Hill. Because he could not have brought this suit any sooner, there is no basis to dismiss it for unnecessary delay.
Alley also argues that his claim was not ripe until the date was set for his execution, citing Stewart v. MartinezVillareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). The recent panel opinion distinguishes Martinez-Villareal on the basis that the challenge in that case involved the petitioner's mental competence to be executed, and such a challenge necessarily is unripe until execution is imminent. A challenge to the method of execution, on the other hand, becomes ripe at the earlier time when the method of execution is determined. In some cases, for example in states with a single method of execution, this could be a meaningful distinction. Based on Tennessee's death penalty protocol, however, the condemned prisoner is asked to choose how he will be executed, and lethal injection is selected if he refuses to make a choice. Alley refused to express a 625 preference, and lethal injection was selected *625 by default. Only at the point when he was approached about the method of execution, on April 19, 2006, and refused to make a choice, did Alley know with certainty that he would be executed by lethal injection. Because the method of execution was only firmly determined shortly before the execution was scheduled to occur, Alley had a valid reason for filing the present action after that determination was conclusively made.
The initial panel reasoned that Alley could have presumed he would be executed by lethal injection, as it is the default method, and that his claim would have been ripe sooner than he argues. At a minimum, however, the choice offered by Tennessee creates some confusion as to when a method of execution is determined. Had Alley attempted to challenge his method of execution before the method had been chosen, or before he had even been presented with the choice under the state's procedure, his challenge would clearly have faced issues of ripeness. If federal precedent does not clearly establish that this claim would have been unripe, it at least contributes confusion on the point. See, e.g., Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th Cir.2005) ("To date, we have not resolved the question of when challenges to execution methods are ripe . . . We have suggested that a constitutional challenge to an execution method becomes ripe when the method is chosen.

However, because the execution protocol is subject to change, [plaintiff] argues that his challenge to the protocol, as opposed to a generic challenge to the statutorily specified method, did not become ripe until his execution was imminent as described in Martinez-Villareal. We need not, and do not resolve this question.").
Further, upon learning of his execution date, Alley immediately sought information about the protocol to be used, and upon learning of the execution protocol, promptly expressed his objections to the procedure with the state commissioner. Alley v. Little, No 3:06-0340, 2006 WL 1454740, at *3, 2006 U.S. Dist. LEXIS 32319, at *10 (M.D.Tenn. May 11, 2006). When the commissioner did not respond, Alley filed this lawsuit in short order. Id. The district court noted his promptness in its initial grant of the stay of execution. Id. (noting that "it would be strange jurisprudence to dismiss this action for `undue delay'").
Even if a court might have found Alley's claim to be ripe had he filed it before the state determined his method of execution, this is not dispositive of the question of undue delay. The basis for dismissing a legal challenge for undue delay is the equitable principle of discouraging a plaintiff from manipulative tactics. See Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). This doctrine does not require that Alley show that his claim would have absolutely been determined unripe as a matter of law had he filed it prior to the official designation of his method of execution. Rather the ripeness inquiry is relevant to explain whether he had a good faith reason to file the suit when he did and that the timing did not involve any "abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process." Id. Given the possibility that an earlier claim might have been determined to be unripe, combined with the fact that Alley did not know with certainty how he would be executed until April 19, 2006, his filing of the suit shortly thereafterward cannot said to be manipulative, abusive, dilatory, or in bad faith.
The recent panel opinion suggests that the Fifth Circuit's decision in Reese v. Livingston supports its conclusion 626 here *626 that Alley's claim was filed too late in the day. 2006 WL 1681090, 2006 U.S.App. LEXIS 15166 (5th
Cir.2006). Although Reese does involve the rejection of a stay of execution in a section 1983 challenge to a method of execution after Hill, the opinion in Reese provides no description of the timing involved in the filing of the challenge. Id. Reese provides no guidance whatsoever for finding that Alley's challenge was delayed unnecessarily, as there is no way to compare the issues surrounding the timing of the filing in each case. Although the Supreme Court did state in Hill that "federal courts can and should protect States from dilatory or speculative suits," 2006 WL 1681090, at *1, 2006 U.S. LEXIS 4674, at *22, the record here shows that Alley was anything but dilatory in bringing his claim, and this rule does not provide a basis for dismissal here.
IV.
Along with four colleagues, I expressed concern in my earlier dissent from denial of rehearing en banc in this case about the inconsistent granting of stays of execution to allow challenges to the lethal injection procedures, and the resulting arbitrariness added to the administration of the death penalty. Alley v. Little, No. 06-5650, 2004 Fed.App. 0164P, 2006 WL 1313365 (6th Cir. May 12, 2006). By making it clear in Hill that challenges to the method of execution can be brought under section 1983, the Supreme Court has taken an initial step towards consistency and clarity in this area that not only is required as a matter of fairness, but to protect the principles of the Eighth Amendment.
This Court has an opportunity to follow the Supreme Court's lead and to ensure that executions within our jurisdiction do not involve cruel and unusual punishment by allowing Alley's challenge to go forward. See also Gomez v. United States Dist. Court, 503 U.S. 653, 659, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (Stevens, J., dissenting) ("[I]f execution by cyanide gas is in fact unconstitutional, then the State lacks the power to impose such punishment. [The inmate's] delay, even if unjustified, cannot endow the State with the authority to violate the Constitution."). Alley raises troubling allegations about the suffering involved in death by lethal injection, and should be allowed his day in court, particularly given that he has presented his legal challenge as promptly as he reasonably could have. The panel's attempt to short-circuit his claim through the misapplication of a principle of equity does a disservice to the Constitution and its prohibition of cruel and unusual punishment, in addition to being incorrect. I believe that Alley has not delayed unnecessarily in filing suit, and has presented a sufficient

likelihood of success on the merits to warrant a stay of his execution. I would thus vote for rehearing en banc to reverse the decision of both panel opinions, and remand the case to the district court.
RONALD LEE GILMAN, Circuit Judge, with whom R. GUY COLE, JR., Circuit Judge, joins, dissenting from the denial of rehearing en banc.
The panel affirms the district court's dismissal of Alley's challenge to the lethal injection protocol. In so doing, it revisits its reasons for vacating the preliminary injunction and the stay of execution. Two primary reasons are articulated in support the panel's analysis: (1) Alley unnecessarily delayed his challenge, and (2) there is a small likelihood of success on the merits. Because I believe that the panel improperly weighed these two factors, I favor rehearing en banc.
First, Alley argues that he did not unduly delay in bringing his challenge to the lethal injection protocol. The 627 propriety of *627 his delay cannot even he assessed, he contends, until we determine when his claim first could
have been filed. This requires an Article III ripeness analysis, which the panel failed to perform.
The panel relies on the fact that Alley was originally scheduled for execution in 2004 and that he failed to bring his challenge then, thus evincing undue delay. It is true that the Tennessee Supreme Court on January 14, 2004 set an execution date of June 3, 2004. This date was not altered until May 19, 2004, when the district court stayed the matter for a determination of whether Alley's Rule 60(b) motion constituted a habeas petition. The panel says that Alley should have challenged the lethal injection protocol during this four-month period prior to the stay.
But in order to have a ripe claim regarding the lethal injection protocol, Alley argues, two events must have taken place: (1) the execution date must be set, and (2) the warden must have presented Alley with the choice of the method of execution, and Alley must have made the choice of lethal injection (as opposed to electrocution, the other method available in Tennessee). In 2004, Alley argues that only the first of these events came to pass. I find nothing in the record that contradicts Alley's claim. Without having been presented with this choice and without having elected lethal injection, any suit brought in the four-month period prior to the stay challenging the lethal injection protocol would have been thrown out on ripeness grounds. This being the case, I believe the panel unjustly faulted Alley for failing to file his challenge sooner.
Turning to Alley's argument as to the likelihood of success on the merits, I agree with the panel that current law does not compel the conclusion that Tennessee's lethal injection protocol is unconstitutional. At the same time, however, there is an affidavit from an expert in this case demonstrating that the lethal cocktail that is to be administered to Alley is insufficient to completely anesthetize him, producing a "reasonably high chance of suffering a cruel and inhumane death." This evidence makes success on the merits at least a possibility 0907albeit not a foregone conclusion0907and not "as speculative as any other claim about possible future changes in governing law," as the panel concluded.
In light of the panel's (1) failure to address the Article III ripeness concerns present in Alley's case, and (2) failure to properly weight the expert's affidavit as to Alley's likelihood of success on the merits, I would grant rehearing en banc.
[*] Judge Gibbons recused herself from participation in this ruling.
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 Alley v. Little, 181 Fed.Appx. 509 (2006)
181 Fed.Appx. 509 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or
after Jan. 1, 2007. See also Sixth Circuit Rule 28. (Find CTA6 Rule 28)
United States Court of Appeals, Sixth Circuit.
Sedley ALLEY, Plaintiff-Appellee, v.
George LITTLE, et. al. Defendants-Appellants.
No. 06-5650. | May 12, 2006.
*510 On Motion to Vacate from the United States District Court for the Middle District of Tennessee.
Attorneys and Law Firms
Paul R. Bottei, Asst. F.P. Defender, Federal Public Defender’s Office, Nashville, TN, for Plaintiff-Appellee.
Mark A. Hudson, Asst. Atty. General, Joseph F. Whalen, III, Asst. Atty. General, Office of the Attorney General, Nashville, TN, for Defendants-Appellants.
Before: BOGGS, Chief Judge; and RYAN and BATCHELDER, Circuit Judges.
Opinion
BOGGS, Chief Judge.
Defendant Tennessee Commissioner of Corrections and others challenge the district court’s grant of a preliminary injunction and order staying the execution, scheduled for 1:00 a.m. on May 17, 2006, of plaintiff Sedley Alley. Alley was convicted of kidnaping, rape, and first-degree murder and sentenced to death in 1987. We VACATE the injunction and stay.
I
On March 29, 2006, the Tennessee Supreme Court set Alley’s execution date. On April 11, 2006, Alley filed what he denominated an action pursuant to 42 U.S.C. § 1983, challenging Tennessee’s lethal injection protocol. The district court initially held the action in abeyance during the pendency of the United States Supreme Court’s

consideration of Hill v. McDonough, No. 05-8794, ---U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---- (M.D.Tenn., May 2, 2006). Alley v. Little, 2006 WL 1207611 (M.D.Tenn., May 2, 2006) The question taken up by the Court in Hill is whether § 1983 is a proper vehicle by which a death row inmate may bring a challenge to the protocol of chemicals typically used by states in lethal injection execution procedures.1 Alley filed a motion *511 on May 4, 2006, for a stay of execution pending the outcome of Hill. (Motion for Preliminary Injunction, No. 3:06-340, May 4, 2006) The motion noted that the Court’s decision would determine whether Alley’s complaint as to the constitutionality of the lethal injection protocol “may proceed under 42 U.S.C. § 1983 or should be considered a habeas corpus petition....” (Motion for Preliminary Injunction, 1) Alley noted that the Court had issued a stay in Hill’s case, which raised essentially the same challenge to the protocol. See Hill v. Crosby, 546 U.S. 1158, 126 S.Ct. 1189, 163 L.Ed.2d 1144 (2006). His motion noted that the Supreme Court and other courts, including the Eighth Circuit and the United States District Court for District of Columbia, had granted stays of execution in other cases, pending the outcome of Hill. (Motion for Preliminary Injunction, 2, citing Rutherford v. Crosby, 546 U.S. 1159, 126 S.Ct. 1191, 163 L.Ed.2d 1144 (2006); Taylor v. Crawford, No. 06-1379 (8th Cir.2006) (en banc); Roane v. United States, No. 05-2337 (D.D.C.))

1

The parties in Hill v. McDonough agreed on the exact

wording of the two questions presented to the Court:

1. Whether a complaint brought under 42 U.S.C. §

1983 by a death-sentenced state prisoner, who

seeks to stay his execution in order to pursue a

challenge to the chemicals utilized for carrying out

the execution, is properly recharacterized as a

habeas corpus petition under 28 U.S.C. § 2254.

2. Whether, under this Court’s decision in Nelson

v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158

L.Ed.2d 924 (2004), a challenge to a particular

protocol the State plans to use during the

execution process constitutes a cognizable claim

under 42 U.S.C. § 1983. (Brief for Petitioner, i;

Brief for Respondent, i)

In considering Alley’s motion, the district court first asked whether it had subject-matter jurisdiction, noting that, “[w]ere the plaintiff’s challenge to be converted to a second habeas petition, this court would lack jurisdiction over it and would be required to transfer it to the Sixth Circuit for appellate review.” (Order of May 11, 2006, No. 3:06-0340, 3, citing In re Sims, 111 F.3d 45, 47 (6th Cir.1997); In re Sapp, 118 F.3d 460, 463 (6th Cir.1997)) The district court determined that it must “await guidance from the Supreme Court before determining whether such conversion is appropriate in this case and, consequently, whether it has jurisdiction over the plaintiff’s challenge.”
1

Alley v. Little, 181 Fed.Appx. 509 (2006)
(Order of May 11, 2006, 3) The court concluded that it must therefore issue a stay pending the outcome in Hill.
Separately, the district court reasoned that the traditional four-factor analysis as to whether to grant a preliminary injunction also favored the issuance of a stay. See United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir.2004) (setting out the factors). The district court found that all four factors, including irreparable harm to the moving party, the relative absence of harm to other parties following an injunction, the quantum of public interest in granting the motion, and the likelihood of ultimate success on the merits, militated toward granting the stay. (Order of May 11, 2006, 4-6.)
The district court issued the stay sought by Alley. We now review.
II
We hold that the district court abused its discretion in issuing the preliminary injunction and stay. See Lexmark Int’l Inc. v. Static Control Components, Inc., 387 F.3d 522, 532 (6th Cir.2004) (noting standard of review for grants of preliminary injunctions).
[1] First, we state that, regardless of a prediction as to the outcome in Hill, we will, arguendo, treat Alley’s action as a properly filed § 1983 claim and that, even so understood, this suit affords no basis for the stay that has been granted. The nub *512 of Alley’s claim is that the protocol, as concocted and administered, is unconstitutional on the grounds that it is cruel and unusual punishment under the Eighth Amendment and otherwise and simultaneously violative of the Ninth Amendment. (Complaint, No. 3:06-cv-00340, Apr. 11, 2006, 1-2) That is not the law of the republic as it stands today. No federal court has found the lethal injection protocol as such to be unconstitutional. We will not do so today.
[2] If we assume, as we do, that Alley may challenge the lethal injection chemical protocol through a § 1983 action, we then weigh the merits of the district court’s stay, based on the reason furnished in its opinion. The court first states that the stay must be granted because the Supreme Court is considering whether this action can even be brought properly under § 1983. Such a view is a wrong as a matter of law. The Supreme Court’s consideration of a procedural matter such as this can not freeze in place all actions in the lower federal courts under existing law. If the Supreme Court ultimately holds that this action should not be cognizable at all, obviously the injunctive relief of a stay would not be justified. On the other hand, if the Court were to hold that the case can

properly be brought, in a procedural sense, it would place us exactly where we find ourselves now by assuming it is proper. We thus obviate any justification for a stay based on the possibility of the Supreme Court’s ruling as we assume it will.
Second, we note that the importance of the pendency of Hill v. McDonough to our case is far from clear or conventionally accepted. The Supreme Court, though possessing the power to do so, has not issued a nationwide stay of lethal injection executions until it hands down a decision in Hill. Fifteen executions, all by lethal injection, have taken place in the United States since the writ of certiorari was granted in Hill on January 25, 2006. Three have occurred since the April 26, 2006 oral arguments. The Supreme Court has specifically declined stays in several of these cases, even where the inmates have raised nearly identical claims regarding their states’ lethal injection protocols to the one presented in our case. In Donahue v. Bieghler, 546U.S. 1159, 126 S.Ct. 1190, 163 L.Ed.2d 1144 (2006), the Supreme Court acted on January 27, 2006, to vacate a stay that had been entered by the Seventh Circuit. Marvin Bieghler was executed the same day. The Court likewise denied a stay on January 31, 2006, in Elizalde v. Livingston, 546 U.S. 1160, 126 S.Ct. 1191, 163 L.Ed.2d 1145 (2006), and Jaime Elizalde was put to death the same day. The Court acted similarly in the case of the man most recently executed in the United States. In Wilson v. Livingston, 2006 WL 1174531 (U.S., May 4, 2006), the Court denied a stay, and Jackie Wilson was executed the same day. Given the Supreme Court’s own pattern of conduct regarding cases in which inmates are raising claims like the one in our case, we cannot conclude that the Supreme Court has established any new precedent that would favor a stay of Alley’s execution pending the outcome in Hill.
[3] Third, we turn to the alternative basis the district court relies on, based on the traditional four-factor test for preliminary injunctions. We do not agree with the district court’s conclusion as to the test’s application in Alley’s case. The district court correctly found that Alley, the moving party, is threatened with irreparable harm. This interest must be weighed against the state’s interest in carrying out punishment. The state’s interest is not to be underestimated. The Supreme Court has instructed that the “State’s interests in finality are compelling” and that the “powerful *513 and legitimate interest in punishing the guilty” attaches to both “the State and the victims of crime alike.” Calderon v. Thompson, 523 U.S. 538, 556, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (citations and internal quotations omitted) Even considering the countervailing interests of Alley and the state, the small likelihood of Alley’s success on the merits ultimately decides the matter. That likelihood, such as it exists at all, is unsupported by current law, which offers no basis for finding lethal injection protocols unconstitutional. Moreover, since the Supreme Court is not even
2

Alley v. Little, 181 Fed.Appx. 509 (2006)
considering the constitutionality of the lethal injection protocol in Hill, the prospect of a change in that feature of existing jurisprudence is as speculative as any other claim about possible future changes in governing law. Such speculation does not impact our assessment as to the likelihood of Alley’s success on the merits under existing law.
Fourth, we take note of the unnecessary delay with which Alley brought his challenge to Tennessee’s lethal injection protocol. He was on notice as to both the particulars of the protocol and the availability of making a claim such as the one he now raises for several years before he filed his last-minute complaint. Another Tennessee death row inmate, Abu-Ali Abdur’Rahman, petitioned the state Commissioner of Correction to declare the lethal injection protocol unconstitutional in April 2002. Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 299-300 (Tenn.2005) Alley’s execution date was set on January 16, 2004, for June 3rd of that year, following the Supreme Court’s denial of a writ of certiorari to review our court’s decision not to grant habeas relief. Alley v. Bell, 540 U.S. 839, 124 S.Ct. 99, 157 L.Ed.2d 72 (2003); State v. Alley, No. M1991-00019-SC-DPE-DD (Tenn. Jan. 16, 2004). Lethal injection has been the only method of execution in Tennessee since 2000 for all death row inmates save those who affirmatively express a preference for electrocution. Tenn.Code Ann. § 40-23-114. Alley had ample time in which to express such a preference and/or file his current grievance. Instead, he waited until thirtysix days before his currently scheduled execution date.
Alley argues that his current claim would not have been ripe for judicial consideration had he filed it much earlier than the date on which he submitted his complaint. He notes that the Tennessee Supreme Court set his current date of execution on March 29, 2006. He points out further that his action, which he styled a motion made pursuant to Fed.R.Civ.P. 60(b), seeking relief from the district court’s denial of his habeas petition, was until quite lately pending in the district court. He contends that he did not suffer an imminent (and therefore justiciable) threat of the harms associated with the lethal injection protocol until after the Tennessee Supreme Court took steps, following the district court’s final disposal of the Rule 60(b) motion, to set the execution date of May 17, 2006. This can not be right. The threat of the grievous harms of lethal injection loomed at least since the establishment of the 2004 execution date. We have been cited no precedent, and our independent research has yielded none, where a claim such as the one Alley now

raises has been rejected for lack of ripeness at any time following the setting of an initial execution date and following the denial of certiorari on initial federal habeas. See Calderon, 523 U.S. at 556, 118 S.Ct. 1489 (“A State’s interests in finality are compelling when a federal court of appeals issues a mandate denying federal habeas relief.”). We find a passage from our opinion in In re Sapp, 118 F.3d 460, 464 (6th Cir.1997), sufficiently apposite to the case now before us to warrant quotation:

Even were we to consider the

merits of McQueen’s claim, we

would not permit *514 his claim

that death by electrocution

constitutes cruel and unusual

punishment in violation of the

Eighth

and

Fourteenth

Amendments. Petitioner has known

of the possibility of execution for

over fifteen years. It has been ten

years since a Kentucky governor

first signed a death warrant for his

electrocution. The legal bases of

such a challenge have been

apparent for many years.... Even

though, in petitioner’s mind, every

year or every day may bring new

support for his arguments, the

claims themselves have long been

available, and have needlessly and

inexcusably been withheld. Thus,

equity would not permit the

consideration of this claim for that

reason alone, even if jurisdiction

were otherwise proper. (internal

citations omitted)

III We VACATE the preliminary injunction and stay.
Parallel Citations 2006 WL 1313365 (C.A.6 (Tenn.)), 2006 Fed.App. 0344N
	  

3

 
 Alley v. Little, 186 Fed.Appx. 604 (2006) 2006 Fed.App. 0441N
186 Fed.Appx. 604 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or
after Jan. 1, 2007. See also Sixth Circuit Rule 28. (Find CTA6 Rule 28)
United States Court of Appeals, Sixth Circuit.
Sedley ALLEY, Plaintiff-Appellant, v.
George LITTLE, et al., Defendants-Appellees.
No. 06-5816. | June 24, 2006.
Rehearing en banc denied, 452 F.3d 621.
*605 On Appeal from the United States District Court for the Middle District of Tennessee.
Before: BOGGS, Chief Judge; RYAN and BATCHELDER, Circuit Judges.
Opinion
BOGGS, Chief Judge.
We AFFIRM the district court’s grant of the defendants’ motion to dismiss Sedley Alley’s challenge to Tennessee’s lethal injection protocol pursuant to 42 U.S.C. § 1983. Order, June 14, 2006, Case No. 3:06-0340, 2006 WL 1697207.
The Supreme Court has recently furnished relevant guidance. In Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), the Court held unanimously that death row inmates may sue under § 1983 to enjoin the state’s use of the prevailing lethal injection protocol on the grounds that it allegedly amounts to cruel and unusual punishment in violation of the Eighth Amendment.
Justice Kennedy’s opinion also held that “[f]iling an action that can proceed under § 1983 does not entitle the complainant to an order staying an execution as a matter of course. Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.” (Hill, 126 S.Ct. at 2104) (citing Calderon v. Thompson, 523 U.S. 538, 556, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).) The Court added, perhaps by way of

emphasis, that its “conclusions today do not diminish that interest, nor do they deprive federal courts of the means to protect it.” Ibid. The opinion further acknowledged the “State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Ibid. (citing Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004)).
The Court noted that federal courts weighing petitioners’ § 1983 challenges to lethal injection should continue to consider various features of a filing when locating the proper balance of equities. These include “a showing of a significant possibility of success on the merits” and the timeliness of the appeal. Timeliness is particularly relevant when an appeal is brought in the strongly disfavored circumstance in which its full consideration would necessitate a stay of execution. Id. at 2104 (citing Barefoot v. Estelle, 463 U.S. 880, 895-96, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) and Nelson, 541 U.S. at 650, 124 S.Ct. 2117).
The Court took note of two cases, one from this circuit, in which “federal courts have invoked their equitable powers to dismiss suits they saw as speculative or filed too late in the day.” Ibid. In Hicks v. Taft, 431 F.3d 916 (6th Cir.2005), we ruled that a last-minute petition by a death row inmate, filed six days before his scheduled execution, did not warrant a stay of the execution even though the district court had permitted him to intervene in a fellow inmate’s § 1983 challenge to the constitutionality of Ohio’s lethal injection protocol. We held the “district court ... did not abuse its discretion in weighing the criteria for the granting of a stay ... and denying the relief requested, primarily because the motion was untimely.” (citing Nelson, 541 U.S. at 649, 124 S.Ct. 2117, and quoting the phrase “a court may consider the last minute nature of an application to stay execution in deciding whether to grant equitable relief”). In White v. Johnson, 429 F.3d 572 (5th Cir.2005), the Fifth Circuit affirmed the dismissal of a condemned’s “last-minute” § 1983 challenge *606 to Texas’s lethal injection protocol on the grounds that it was “dilatory.” Justice Kennedy wrote the “federal courts can and should protect States from dilatory or speculative suits....” Hill, 126 S.Ct. at 2104.
It is perhaps for this reason that the Supreme Court, though it possesses the power to do so, has not, in the days following its ruling in Hill, stayed all executions in the United States pending the further litigation of the many petitioners nationwide who have filed § 1983 challenges to the nearly identical lethal injection protocol used by virtually all death penalty states.
In the brief interval since Hill, the Fifth Circuit decided a case with a procedural history quite similar to ours. Lamont Reese was sentenced to death in Texas state court
1

Alley v. Little, 186 Fed.Appx. 604 (2006) 2006 Fed.App. 0441N

in 2000. After exhausting his available state remedies, he sought relief in federal court. The Fifth Circuit denied his application for a COA in May 2004. See Reese v. Dretke, 99 Fed.Appx. 503 (5th Cir.2004) The Supreme Court denied certiorari on October 18, 2004. Reese v. Dretke, 543 U.S. 944, 125 S.Ct. 368, 160 L.Ed.2d 256 (2004) Reese filed a § 1983 challenge to Texas’s lethal injection protocol on May 25, 2006, less than one month before his scheduled execution on June 20th. (This is comparable to the chronology in our case: Alley filed his § 1983 action on April 11, 2006, five weeks before his originally scheduled execution date of May 17th.) In considering Reese’s petition, the Fifth Circuit cited Hill for the proposition that “a plaintiff cannot wait until a stay must be granted to enable it [sic] to develop facts and take the case to trial-not when there is no satisfactory explanation for the delay.” Reese v. Livingston, 453 F.3d 289, 291 (5th Cir.2006). The court denied Reese’s request for a stay of execution during the pendency of his § 1983 challenge to the lethal injection protocol. The United States Supreme Court, acting also on June 20th, likewise denied a stay and denied Reese’s petition for a writ of certiorari. Reese was executed the same day.
In our case, the district court’s ruling of June 14th appears to have interpreted one of our court’s quite recent opinions in the matter of Sedley Alley as standing for the proposition that “[t]he law of the Sixth Circuit is that unnecessary delay warrants dismissal, and that this case was unnecessarily delayed.” Order, June 14, 2006, Case No. 3:06-0340, at 3 (citing Alley v. Little, 181 Fed.Appx. 509, 513 (6th Cir.2006)). We do not read the district court’s opinion, nor or own opinion, as demanding that a tardily filed action under § 1983 be dismissed. Indeed, we think the district court more accurately evoked the full sense of the same opinion when it wrote, only a few lines earlier, that our “panel based its determination [to vacate the district court’s injunction] on, among other things, ‘the small likelihood of Alley’s success on the merits’ and the ‘unnecessary delay’ with which ... the plaintiff had challenged the protocol.” Order, June 14, 2006, Case No. 3:06-0340, at 2-3 (citing and quoting Alley v. Little, 181 Fed.Appx. at 513). Close reading of our opinion reveals that our ruling was not based solely on the untimeliness of Alley’s § 1983 petition. As we wrote:

Even

considering

the

countervailing interests of Alley

and the state, the small likelihood

of Alley’s success on the merits

ultimately decides the matter. That

likelihood, such as it exists at all, is

unsupported by current law, which

offers no basis for finding lethal

injection

protocols

unconstitutional. Moreover, since

the Supreme Court is not even

considering the constitutionality of the lethal injection protocol in Hill, the *607 prospect of a change in that feature of existing jurisprudence is as speculative as any other claim about possible future changes in governing law. Such speculation does not impact our assessment as to the likelihood of Alley’s success on the merits under existing law.
Alley v. Little, 181 Fed.Appx. at 513.
The point here is that, as the Supreme Court has instructed in Hill and Nelson, as we have indicated in Hicks, and as the Fifth Circuit explained in Reese, the timeliness of a petitioner’s filing is an important-but is not the only important-consideration when a federal court determines the appropriate method of disposing of a death row inmate’s § 1983 challenge to lethal injection.
To be sure, the district court’s reliance on the untimeliness of Alley’s petition was neither wrong nor inadequate to support its ruling of June 14th. Alley’s filing was very late in coming.
Alley’s brief cites Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) as prohibiting courts from considering challenges such as the one in our case before a petitioner’s execution reaches imminence. We reject this reading of this precedent. In that case, unlike in ours, the defendant’s claim under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), had originally been dismissed without prejudice. The Supreme Court’s ruling merely allowed the claim to proceed in a habeas petition at a later date. The Court noted that the lower courts had specifically left open the possibility that the defendant’s Ford claim could proceed in a future filing. Id. at 640, 118 S.Ct. 1618. No such procedural history informs the posture of the § 1983 claim in our case. Moreover, we note that claims involving mental competency are inherently different from the § 1983 petition before us in at least one respect: mental competency is subject to variance over time. It is indeed possible that last-minute first-instance Ford petitions could be justified by a change in a defendant’s mental health.
Extreme untimeliness is a sufficient but not necessarily compelling factor when deciding how to dispose of a § 1983 challenge to lethal injection. While reaffirming our view of the very small likelihood of Alley’s success on the merits, we AFFIRM the district court’s ruling of June 14, 2006, based as it was on the untimeliness of Alley’s petition.
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Alley v. Little, 186 Fed.Appx. 604 (2006) 2006 Fed.App. 0441N
Parallel Citations 2006 WL 1736345 (C.A.6 (Tenn.)), 2006 Fed.App.

0441N
	  

3

 
 Alley v. Little, 447 F.3d 976 (2006)
447 F.3d 976 United States Court of Appeals,
Sixth Circuit.
Sedley ALLEY, Plaintiff-Appellee, v.
George LITTLE, in his official capacity as Tennessee’s Commissioner of Correction, et al., Defendants-Appellants,
John Does 1-100, et al., Defendants.
No. 06-5650. | May 16, 2006.
Attorneys and Law Firms
Paul R. Bottei, Asst. F.P. Defender, Federal Public Defender’s Office, Nashville, TN, for Plaintiff-Appellee.
Mark A. Hudson, Asst. Atty. General, Joseph F. Whalen, III, Asst. Atty. General, Office of the Attorney General, Nashville, TN, for Defendants-Appellants. *977 Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.*
Opinion
ORDER
The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.
BOYCE F. MARTIN, JR., Circuit Judge, with whom DAUGHTREY, MOORE, COLE, and CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc.
The Supreme Court recently heard oral arguments in Hill v. McDonough, No. 05-8794, and is expected to issue a decision before the end of the current Term in June. The Court’s decision will impact Alley’s case either by allowing him or not allowing him to challenge the method of his execution pursuant to 42 U.S.C. § 1983. If Alley is executed on Wednesday and the Supreme Court decides Hill in his favor next month, this Court will effectively have locked the barn door after the horse has already escaped. If we uphold the stay entered by the district court, as I would, and the Supreme Court decides Hill against Alley’s interests, Tennessee may proceed with the execution in June.
To me, this balancing of interests weighs heavily in favor of upholding the stay entered by the district court. Moreover, the dysfunctional patchwork of stays and executions going on in this country further undermines the various states’ effectiveness and ability to properly carry out death sentences. We are currently operating under a system wherein condemned inmates are bringing nearly identical challenges to the lethal injection procedure. In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result. Compare Rutherford v. Crosby, 546 U.S. ----, 126 S.Ct. 1191, 163 L.Ed.2d 1144 (2006); Taylor v. Crawford, No. 06-1379 (8th Cir. Feb. 1, 2006) (en banc); Roane v. Gonzales, No. 05-2337 (D.D.C. Feb. 24, 2006), with Wilson v. Livingston, 2006 WL 1159270, 2006 U.S.App. LEXIS 10958 (5th Cir. May 2, 2006), stay denied, --- U.S. ----, 126 S.Ct. 1942, 164 L.Ed.2d 688 (2006); Donahue v. Bieghler, --- U.S. ----, 126 S.Ct. 1190, 163 L.Ed.2d 1144 (2006). This adds another arbitrary factor into the equation of death and thus far, there has been no logic behind the Supreme Court’s decision as to who lives and who dies. Until the Supreme
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Alley v. Little, 447 F.3d 976 (2006)
Court sorts this out, I would uphold the stay issued in this case, and all cases that come before this Court, and therefore dissent from the Court’s contrary holding.
We review a district court’s decision to enter a stay for abuse of discretion. See Yolton v. El Paso Tenn. Pipeline, Co., 435 F.3d 571, 577 (6th Cir.2006). Our four factor analysis requires us to consider the petitioner’s likelihood of success on the merits, whether the petitioner will suffer irreparable harm if a stay is not entered, whether others will be harmed by the entry of a stay, and the public interest in a stay. These factors must be balanced to *978 determine whether a stay ought to be entered.
First, it is clear that petitioner will suffer irreparable harm if a stay is not entered. He will be dead. This will of course moot any challenge he could mount should the Supreme Court decide Hill to allow a § 1983 suit.
Second, we consider whether others will be harmed by the stay. As the district court noted, the state may incur financial costs and relatives of the plaintiff’s victim might experience emotional harm. These are serious interests that we ought to credit. Nevertheless, the fact that the Supreme Court will issue a decision by the end of next month militates against finding these interests overwhelming. Death, of course, is different. A delay of less than two months-awaiting a highly relevant Supreme Court decision-is worth the wait when human life is at stake.
Third, we consider the public interest. Certainly the public interest in carrying out criminal sentences is strong. On the other hand, the public also has an interest in not carrying out cruel and unusual punishment or terminating human life prematurely. Finally, the public interest in uniform adjudication by the federal courts is not to be disregarded. The fact is that fifteen executions have been carried out despite Hill. Other courts have issued stays putting executions on hold pending the Hill ‘s disposition. This patchwork justice is intolerable when dealing with the imposition of the death penalty and undermines the public interest in uniform adjudication.
Finally, we consider Alley’s likelihood of success on the merits. The panel decision declares that there is only a “small” likelihood of success on the merits and finds that this “ultimately decides the matter.” I disagree. The district court found that Alley “by providing expert testimony that the current lethal injection protocol causes excruciating deaths, has made an adequate showing on the merits of his Eighth and Fourteenth Amendment claims.” Dist. Ct. Op. at 6. The panel decision does not make clear why this Court should disregard the district court’s explicit factual finding, particularly given the abuse of discretion standard it purports to apply. From the executions that have proceeded recently, including one last week, we have additional evidence of the problems with this procedure. Although Alley’s claim may not be a clear winner, I do not believe that it is a clear loser, and there is a likelihood that Alley will be able to show that lethal injection amounts to cruel and unusual punishment. In light of this, I would not find that this factor “ultimately decides the matter.” Rather, viewing all four factors, and because death is different, I would find that the district court did not abuse its discretion by entering a stay pending the Supreme Court’s resolution of Hill.
No doubt the march toward death is powerful. Currently, however, the march is anything but orderly. The current administration of the death penalty in light of the pending decision of Hill is more like a march in dozens of different directions, which I believe is more costly, more inefficient, and more arbitrary, than entering the stay and waiting temporarily for some (hopefully) clear guidance. The arbitrariness of death penalty administration is not ameliorated by the fact that Hill involves what the panel terms “a procedural matter.” Rather, administration of the death penalty can only be made more arbitrary by the possibility that after Hill, some current death row inmates may be able to show in court that the practice of lethal injection violates the Eighth Amendment’s prohibition of cruel and unusual punishment, while other currently similarly situated inmates will have already been put to death through a method deemed to violate the Constitution. I would wait for the *979 Supreme Court to resolve the issue and would affirm the district court’s decision entering the stay.

Parallel Citations

2006 Fed.App. 0164P

Footnotes

*

Judge Gibbons recused herself in this case.

2

Alley v. Little, 447 F.3d 976 (2006) 3