IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DAVID LARRY NELSON, Plaintiff, v.
DONAL CAMPBELL and GRANTT CULLIVER,
Defendants.

) ) ) ) ) CIVIL ACTION NO. ) 2:03cv1008-T ) ) ) ) )

ORDER

Based on the representations made and by agreement of

the parties on October 6, 2004, and so as to bring this case

to conclusion as soon as is reasonably possible, it is

ORDERED as follows:

(1) Defendants shall not use the “cut-down” procedure

on plaintiff.

(2) Defendants shall use only one of the following

procedures on plaintiff: the peripheral-venous-access

procedure, and, if that procedure is not feasible, then the

percutaneous-central-venous-access procedure.

(3) The court will retain its own medical expert to assist the court in determining whether the remaining issues raised by plaintiff are legally and factually significant and, if so, what action should be taken.
(4) Another on-the-record status conference is set for October 20, 2004, at 8:30 a.m., to discuss the court's progress in obtaining its own expert. Defense counsel are to arrange for the conference to be conducted by telephone.
DONE, this the 7th day of October, 2004.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

DAVID LARRY NELSON, Plaintiff,
v. RICHARD ALLEN, et al.,
Defendants.

) ) ) ) ) CASE NO. 2:03cv1008-T ) ) ) )

DEFENDANTS’ BRIEF ON THE FINDINGS OF THE COURT’S INDEPENDENT MEDICAL EXPERT AND MOTION FOR SUMMARY JUDGMENT

This Court, after receiving this case on remand from

the United States Supreme Court, recognized that it needed

assistance in answering relevant medical questions. See

Oct. 6, 2004, status conference transcript, at pp. 19-20.

At the next status conference, this Court reiterated its

need for an independent court expert. Specifically, the

Court stated: “I’m ready to find out exactly what the

peripheral vein access procedure is, what the percutaneous

subclavian line procedure is so that I can dispose of this

case.” See April 12, 2005, status conference, p. 12.

This Court subsequently entered an order that accepted

the report and recommendation of Special Master Dave Boyd

regarding the physical examination of Nelson to be

performed by Dr. Warren Bagley, the Court’s own chosen

independent medical expert. See Doc. 83. In that order, the Court stated that Dr. Bagley is to “assist the Court in understanding outstanding issues of fact.” Doc. 83 at 1. The order listed the issues of fact that, in the Court’s view, were outstanding. The order concluded by stating that Dr. Bagley “will do a physical examination of Plaintiff David Nelson and produce a written report to the Court in order to assist it in understanding the questions and issues raised in this case as specified in this order.” Doc. 83 at 5.
On October 11, 2006, Dr. Bagley “examined Mr. Nelson with regards to obtaining venous access, visually and with palpation, and sonographically.” Doc. 110, Ex. 1, p. 2. Dr. Bagley, in compliance with this Court’s order, see Doc. 83 at 5, has filed a written report answering the Court’s questions on the relevant issues of fact. Based upon Dr. Bagley’s report, which expressly concludes there are several locations upon which peripheral venous access can be achieved, the State respectfully requests this Court enter an order denying relief to Nelson.
2

This Court previously denied, without prejudice, two motions for summary judgment filed by the State. Docs. 42, 63, and 102. Now that the Court’s independent medical expert has filed his report regarding Nelson’s physical condition as it pertains to the issue of gaining venous access for the purposes of carrying out an execution by lethal injection, the State again respectfully requests that this Court issue an appropriate order granting summary judgment.
In his report, Dr. Bagley concludes that Nelson “has readily accessible peripheral veins” and that access to “central veins will not be necessary to obtain venous access on David Larry Nelson.” Doc. 110, Ex. 1, p. 13. Dr. Bagley’s report lists three locations on Nelson’s body where peripheral veins can be accessed by “most persons with basic intravenous skills.1” Doc. 110, Ex. 1, p. 13. (emphasis added.) These sites include the saphenous vein near the left ankle, the saphenous vein near the right ankle, and the basilica vein found on the inside part of
1 Dr. Bagley also found that the left and right external jugular veins are accessible peripheral veins but further stated that cannulation is “difficult …unless the operator has had some experience in cannulating it specifically.” Doc. 110, Ex. 1, p. 9. Dr. Bagley noted that medical doctors and military combat medics are experienced at accessing this vein along with “some EMT/paramedics.” Id.
3

the right arm.2 Doc. 110, Ex. 1, p. 13. These three sites provide sufficient access to allow the State to take the necessary steps for carrying out Nelson’s sentence, without resort to any additional procedures. Importantly, Dr. Bagley has determined that they do not require highly trained specialists, as Nelson has alleged.3 Doc. 110, Ex. 1, p. 13.
This Court has already enjoined the State of Alabama from using the “cut down” procedure, which formed the basis of Nelson’s original complaint. To the extent Nelson’s second amended complaint also challenges the use of a “cut down” procedure as a predicate to gaining venous access, this Court’s order has mooted this issue and sufficiently protected Nelson’s alleged interest.
Furthermore, based on Dr. Bagley’s findings, the remainder of Nelson’s second amended complaint is moot. Nelson’s second amended complaint challenges the use of predicate procedures in cases where peripheral intravenous access is not possible. Doc. 60, p. 16, para. 75. (“For
2 It should be noted that Dr. Bagley’s report indicated he examined six places on Nelson’s body and found that five of those places could accommodate peripheral vein access. Doc. 110, Ex. 1, p. 13. 3 Nelson’s counsel, without any supporting documentation, has described central line placement as a “surgical procedure”, see Oct. 6, 2004, status conference at p. 14, which is a “specialty.” Id. at p. 17.
4

this Court and for the public to determine whether lethal
injection execution in the State of Alabama is being
humanely administered in cases where peripheral intravenous
access is not possible, the State of Alabama must disclose
reliable information about its lethal injection protocol
and the mandated medical procedures that will be employed
to gain venous access in condemned prisoners.”) (emphasis
added) Based on Dr. Bagley’s express findings, Nelson’s
execution may be carried out through standard peripheral
intravenous access, using personnel with basic intravenous skills.4 Notably, the fact that Dr. Bagley’s findings could
effectively moot this case was previously foreseen by the
Court. See April 12, 2005, status conference transcript at
p. 14, lines 8-11 (“…I thought that if Nelson is accessible
through the traditional procedure, then perhaps this case
is moot.”)
4 Nelson’s second amended complaint is replete with assertions that he does not contest the ordinary peripheral intravenous access method for carrying out a lethal injection. Doc. 60, pp. 16-17, 26, 32 paras. 79, 82, 111, 135. (“…the Plaintiff’s execution will mark the first instance of the State of Alabama having to first perform an invasive medical procedure on a condemned inmate to gain venous access…”; “Failure to provide injunctive relief will result in irreparable harm in that the Defendants will perform the abovedescribed cut-down procedure on the Plaintiff…”; “If the Defendants intend to perform a percutaneous central line placement procedure…”; “If the percutaneous central line placement procedure performed on the Plaintiff is not performed by a qualified physician…”).
5

Accordingly, there is nothing in the second amended complaint attacking the State of Alabama’s ability to carry out Nelson’s lethal injection using one of the three aforementioned sites disclosed by Dr. Bagley. Cf. Nelson v. Campbell, 541 U.S. 637, 648 (2004) (citing 18 U.S.C. § 3626(a)(2)) (“Preliminary injunctive relief [in prison conditions cases] must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.”). The existence of these three sites provides the State primary, secondary, and tertiary sites. Because Nelson’s execution may proceed without the need for any so-called “medical procedure,” there is no basis, or cause of action, before the Court to prevent the State from proceeding with ordinary peripheral venous access.
Thus, the time has come for this Court to end the present litigation. The State should be allowed to carry out Nelson’s execution using the three aforementioned peripheral venous access sites.
6

It is only if the defendants must proceed beyond the

sites identified by Dr. Bagley that any of the plaintiff’s

causes of action are even implicated.

Plaintiff’s

allegations regarding the qualifications and experience of

personnel cannulating percutaneous central line placements

are simply not implicated where such a procedure is not

needed and, thus, not employed. Further, based on previous

positions adopted by Nelson during this case, he should be

judicially estopped from asserting his causes of action

regarding percutaneous central line placements.

Plaintiff’s position before the Supreme Court was

limited to challenging procedures that were gratuitous and

unnecessary to gaining venous access. Nelson, 541 U.S. at

645-646 (“But petitioner has been careful throughout these

proceedings, in his complaint and at oral argument, to

assert that the cut-down…are wholly unnecessary to gaining

venous access. Petitioner has alleged alternatives that,

if they had been used, would have allowed the State to

proceed with the execution as scheduled.”). To the extent

that Nelson has previously defined his position in these

proceedings as objecting to the use of the cut-down

procedure, claiming it is wholly unnecessary to gaining

7

venous access, he is now judicially estopped from contesting the use of peripheral venous access — areas deemed “readily accessible” by this Court’s independent expert — as well as percutaneous central line placement. See Palmer & Cay, Inc. v. Marsh & McLennan Companies, Inc., 404 F.3d 1297, 1307 n.16 (11th Cir. 2005); Burnes v. Pemco Aeroplex Inc., 291 F.3d 1282, 1285 (11th Cir. 2002).
In an October 7, 2003, telephone conference with this Court, counsel for Nelson stated “…we are truly trying to get an honest assessment of Mr. Nelson’s venous situation, and we just want to do what we can do so that the procedure before they lethally inject him so that that procedure is as humane as it can be under current medical procedures.” Oct. 7, 2003, telephone conference transcript, p. 35, lines 13-18. The Court now has the “honest assessment” that Nelson sought, and Dr. Bagley has found that venous access can be achieved through the use of the least invasive procedure possible, that being via peripheral venous access. Counsel’s earlier assurances to this Court would be rendered meaningless if Nelson were now allowed to object to the use of peripheral access to carry out his lethal injection.
8

Nelson’s conduct before the Supreme Court of the United States should likewise trigger judicial estoppel. As then noted by counsel for Nelson, “A percutaneous insertion would be very easy to accomplish.” Transcript of Oral Argument, Nelson v. Campbell, No. 03-6821, March 29, 2004, p. 17, lines 1-2. Shortly thereafter, counsel for Nelson asserted, “Mr. Nelson doesn’t even object to venous access. What he objects to is some kind of inhumane cutting by people who are not qualified or competent to do that.” Transcript of Oral Argument, Nelson v. Campbell, No. 036821, March 29, 2004, p. 18, lines 16-18. (emphasis added) In his rebuttal, counsel candidly conceded: “Well, if—if the State had then and now would concede that percutaneous line placement would be an acceptable method, then yes. That’s all we were seeking.” Transcript of Oral Argument, Nelson v. Campbell, No. 03-6821, March 29, 2004, p. 60, lines 6-9. Counsel summarized Nelson’s case by stating, “Until we can go to the district court, go to a court, and enforce any of these representations [that a cut-down would not be used and that a percutaneous line placement would be used], we are at risk. And that is all we are asking. That’s all Mr. Nelson asked in the first instance. And the
9

irony, of course, is if it had been permitted to proceed, I

think we would have resolved this. He’d already be

executed.”

Transcript of Oral Argument, Nelson v.

Campbell, No. 03-6821, March 29, 2004, p. 60, lines 12-19)5

Finally, but perhaps most starkly, counsel for Nelson

has represented to this Court that “there is no way this

lawsuit would still be alive if it was reasonable to

believe that you could gain peripheral access on Mr.

Nelson.” Oct. 6, 2004, status conference transcript, p. 7,

lines 22-25. Counsel for Nelson has expressly conceded

that his cause of action is dependent upon the assumption

that “there is going to have to be central access.” Oct.

6, 2004, status conference transcript, p. 8. Now that this

assumption has been totally undermined by the Court’s own

independent expert, Nelson’s counsel’s concession calls for

an end to this case. Cf. County of Los Angeles v. Davis,

440 U.S. 625, 631, 99 S.Ct. 1379, 1383 (1979) (holding that

the case had become moot during pendancy of the litigation

where there was no reasonable expectation that the county

would use invalidated written civil service exam and

5 It is beyond question that the Court relied upon this statement by counsel in its opinion. Nelson, 541 U.S. at 646.
10

interim relief and events had irrevocably eradicated the affects of the alleged violation). Further, there is nothing in the prayer for relief for a Court to provide for Nelson.
In sum, this Court’s independent medical expert has found that Nelson’s execution can be carried out through readily accessible veins, requiring only a peripheral stick. There will be no “cut down” employed on Nelson at any time in the future. There is no indication that “there is going to have to be central access.” Pursuant to Nelson’s own representations and in the light of the independent expert’s report this lawsuit is moot. Accordingly, summary judgment is appropriate. See U.S. v. Soriede, 461 F.3d 1351, 1354 (11th Cir. Aug. 24, 2006) (Summary judgment appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law).
11

The State of Alabama will have present at Nelson’s
execution an emergency medical technician (paramedic level)6
and a medical doctor. An emergency medical technician fits
within the category of personnel described by Dr. Bagley as
having the necessary skills to gain venous access through a
peripheral stick.
Summary judgment is appropriate in this case. The
evidence before the Court establishes that the State will
be able to gain venous access through Nelson’s “readily
accessible” peripheral veins as indicated in Dr. Bagley’s
report. There is no genuine question of material fact
remaining as to whether Nelson must fear the employment of
any predicate act to gain venous access other than through
a peripheral stick. Doc. 110, Ex. 1, p. 13. (“However,
given the accessibility of the peripheral veins listed
6 Paramedic certification is the highest level of emergency medical technician certification in Alabama. Ala. Admin. Code R. 420-2-1-.14(1) (“An actively licensed EMT-Paramedic is an individual who has met all requirements for licensure as an EMT-Intermediate and who has also been trained in additional emergency medical procedures through the EMT-Paramedic course of instruction, or its equivalent, as approved by the State Board of Health, and who, after having passed the approved EMT-Paramedic examination and completed the appropriate credentialing requirements, has been granted a license by the State Board of Health to regularly perform emergency medical procedures at the basic, intermediate, and paramedic levels.”). See also, Ala. Admin. Code R. 420-2-1-.14(a) and (b) (“…Drugs may be administered via the intravenous, subcutaneous, intramuscular, oral, sublingual, rectal routes, and through inhalers and endotracheal tubes if approved for such administration by the State Board of Health; and (b) Within the constraints specified in section 420-2-1-.07 of these rules, administration of drugs and maintenance of I.V. drips for inter-hospital transfer patients.”).
12

above, it is my medical opinion that cannulation of central veins will not be necessary to obtain venous access on David Larry Nelson.”)7 There is no evidence before this Court to suggest that Nelson’s execution will be any different from the 11 previous lethal injections administered through peripheral venous access.
Finally, as this Court has already ruled, see Nelson v. Campbell, 286 F.Supp.2d 1321, 1323 (M.D. Ala. 2003), defendants are entitled to summary judgment as to Nelson’s state law cause of action as alleged in the complaint. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89 (1984). Accordingly, this aspect of Nelson’s second amended complaint cannot form the basis for further proceedings before this Court.
7 Although it does not appear that a percutaneous central line placement will be required, Dr. Bagley also resolved the dispute as to the qualifications needed to perform such a procedure. It was this question that the Court expressed a desire to resolve during the October 6, 2004 status conference. Contrary to Nelson’s characterization of this procedure as a specialized surgical procedure requiring a physician specialist, Dr. Bagley has indicated that an “MD” would suffice, as would a physician’s assistant (non-medical doctor) or a certified registered nurse anesthetist. This is consistent with the State’s position that an MD is qualified to perform this procedure. This also refutes counsel for Nelson’s previous assertion that doctors must have a certification before being able to perform this procedure.
13

CONCLUSION For these reasons, defendants request this Court to enter an order dismissing Nelson’s second amended complaint, recognizing that it is moot and that no genuine question of material fact or law remains before the Court.
Respectfully submitted, TROY KING ATTORNEY GENERAL /s/ J. Clayton Crenshaw J. CLAYTON CRENSHAW ASSISTANT ATTORNEY GENERAL
14

CERTIFICATE OF SERVICE I hereby certify that on November 15, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: David R. Boyd, Michael Kennedy McIntyre, and H. Victoria Smith. I also certify that this date I served a copy of the foregoing on the following attorney by placing a copy of the same in the United States mail, first class postage prepaid and addressed as follows:
Joe Wilson Morgan, III 600 Robert Jemison Road Suite B Birmingham, AL 35209
/s/J. Clayton Crenshaw____________ J. CLAYTON CRENSHAW ASSISTANT ATTORNEY GENERAL ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, AL 36130-0152 (334) 242-7423
15

 
 Attachment A Expert Report of the Court's Independent Medical Expert
Dr. Warren Bagley Report Based upon Dr. Bagley's Physical Examination of David Larry Nelson Conducted at
Holman Prison on October 11, 2006
870138.1

This examination took place in the infirmary area of Holman State Prison on Wednesday 11 October 2006 from 1420-1500 hrs. Present were the examiner (Warren Bagley, MD), Attorney Chris Heinss (Balch, Bingham Special Master), Prisoner's Attorney Victoria Smith, Attorney General's Representative Clay Crenshaw, Prison Warden Grantt Culliver, Prisoner's Expert Witness Mark Heath, MD, and two guards.
I examined Mr. Nelson with regards to obtaining venous access, visually and with palpation, and sonographically. The results of both exams are documented both in writing and with supporting photographs.
Mr. Nelson was asked to lie supine on a gurney. The first examination was visual and with palpation. A tourniquet was applied to the left upper arm, the arm was extended towards the floor from the gurney, and I knelt by the gurney to perform the exam. The reason for this somewhat awkward position is that gravity assists with helping the veins stand out; blood tends to pool in the lowest part of the body.
As can be seen from photos A and B, there are no prominent superficial veins on the forearm which would support an IV of sufficient size (see Glossary) to administer the volume of solution at the necessary rate to perform an anesthetic, administer fluids for resuscitation, etc. The examination included the palmar and volar (see Glossary) aspects of the hand, wrist, and forearm, and the antecubital fossa (see Glossary). The line on Photo B represents the level at which ultrasonic examination of the antecubital fossa occurred.

870138.1

Photo A

Photo B

The ultrasonic examination (see Glossary) of the left antecubital fossa did not reveal any veins. See Ultrasound 1.
Ultrasound 1. Note: although the ultrasound exam was performed after the visual/palpatory exam, I present them simultaneously for the sake of clarity. The second area of examination was the left lower extremity. A tourniquet was applied to the mid-calf and examination of the foot and ankle was carried out, again with the extremity dangling off the gurney and the examiner kneeling. It should be noted that Mr. Nelson's skin on the lower extremities has hyperpigmented and pitting edema changes consistent with venous stasis (see Glossary) and congestive heart failure. He also has a history of congestive heart failure, and of upper thigh varicosities (see Glossary). Although it is technically possible to insert an IV into a varicosity, it is generally quite painful and not always successful, as varicosities are often tortuous. The largest and most commonly cannulated (see Glossary) peripheral vein in the leg is the saphenous vein, which courses up the medial (inside) portion of the ankle and leg. While I was not able to see this vein on the left ankle, it was distinctly palpable and clearly visible on ultrasound. See Photos C and D, and Ultrasound 2. Again, yellow line indicates level of ultrasound exam. The white donut-shaped device is the tourniquet.
870138.1

Photo C

870138.1

Photo D

UItrasound 2 The saphenous vein is clearly visible in cross-section as the dark round structure at the end of the arrow. This vein is readily able to be cannulated by persons who are certified to initiate IV therapy, i.e. emergency medical technicians/paramedics who are so certified, military combat medics, nurses, CRNAs (certified registered nurse anesthetists), PAs (physician's assistants) and physicians. The next area examined was the right ankle, which followed the same protocol as for the left. See Photos E and F, and Ultrasound 3. The saphenous vein in this leg was visible, palpable, and readily visualized on ultrasound.
870138.1

Photo E
The dark arrows point to the saphenous vein. The yellow line is the level at which ultrasound examination occurred.

870138.1

Photo F

UItrasound 3 The dark arrow points to the lumen (see Glossary) of the saphenous vein. This vein is equally accessible as was the left, by the same level of personnel. The next area examined was the right arm, performed in a manner similar to the left, with the tourniquet in place and the arm extended down towards the floor. The distal forearm and hand were again devoid of visible or palpable veins. The antecubital fossa contained a large vein (the basilic vein) which was visible, palpable, and readily visualized with ultrasound. See Photo G and Ultrasound 4.
870138.1

Photo G The dark arrows point to the basilic vein.
Ultrasound 4 The dark arrow points to the basilic vein. This vein is readily cannulated by anyone trained/certified to start basic intravenous lines, even more easily than the saphenous veins listed above, and is one of the veins commonly used when blood is drawn for laboratory tests or for blood donation. The next area examined was the right side of the neck, specifically the area known as the anterior cervical triangle (see Glossary). In this area lie the internal and external jugular veins. In the supine position Mr. Nelson's
870138.1

external jugular vein was readily visible (see Photo H), and easily seen with ultrasound (see Ultrasound 5).
Photo H Once again, the thin dark arrow points to the external jugular vein. The upper yellow line is where the ultrasound probe was placed to examine the external jugular vein, and the heavier lower yellow line indicates probe placement for examination of the right internal jugular vein. The large double black arrow points to the sternocleidomastoid muscle (see below). This vein (the external jugular) is easy to see, and yet moderately difficult to cannulate unless the operator has had some experience in cannulating it specifically, as it is very easy to go through the vein instead of into it. Mostly one finds MDs and military combat medics accessing this vein, but some EMT/paramedics may have had experience with it. Nurses usually do not use veins in the neck.
870138.1

UItrasound 5 The dark arrow points to the right external jugular vein. The largest vein in the neck is the internal jugular. It courses through the neck deep to the sternocleidomastoid muscle (indicated by the large black double arrow in Photo H; see Glossary) and generally shallow and lateral to the carotid artery. See Ultrasound 6. The single arrow points to the right internal jugular vein, and the double arrow to the right carotid artery.
Ultrasound 6 The internal jugular vein is generally restricted to access by physicians, some advanced nurse practitioners (such as CRNAs) and perhaps some PAs (physicians' assistants) who have had specialized training in central venous
870138.1

line placement (see Glossary). Once one has performed some 40-50 of these procedures they become quite straightforward. This vein is generally used for major resuscitative infusions (large volume, rapid administration), for monitoring of central venous pressure, or as an access for pacemaker wires or Swann-Ganz catheters commonly used during heart surgery. The catheters needed to access this vein are of necessity longer and larger in diameter than most peripheral intravenous catheters. Because of the size of catheter usually placed, a local anesthetic is commonly injected at the insertion site. Entering the central venous circulation is inherently more dangerous than peripheral vein cannulation, as the surrounding structures are more vital and less accessible if damaged (carotid artery, lungs, thoracic duct, etc). Mr. Nelson's internal jugular veins are large and (with the above limitations in mind) would not be terribly challenging to cannulate.
The last part of the exam involved the left internal and external jugular veins. See Photo I, and Ultrasounds 7 and 8.
Photo I The dark arrow points to the left external jugular vein. The thin yellow line is the site of the ultrasound probe for the external jugular examination, and the heavier yellow line that for the internal jugular. The same constraints and considerations as mentioned above apply for this side as well.
870138.1

UItrasound 7 The arrow points to the left external jugular vein.
UItrasound 8 The upper arrow points to the left internal jugular vein, and the lower double arrow to the left carotid artery. It is not generally possible to image the subclavian veins with ultrasound, and this was not attempted.
870138.1

In summary, Mr. Nelson has readily accessible peripheral veins in the following regions. They are listed in order of ease of access and therefore preference.
1. Right basilic vein in right antecubital fossa (a peripheral vein; see Glossary). This vein is easily cannulated by most persons with basic intravenous skills (i.e. emergency medical technicians/paramedics who are so certified, military combat medics, nurses, CRNAs (certified registered nurse anesthetists), PAs (physician's assistants) and physicians ).
2. Right saphenous vein at the right medial malleolus (a peripheral vein). This vein is easily cannulated by most persons with basic intravenous skills.
3. Left saphenous vein at the left medial malleolus (a peripheral vein). This vein is easily cannulated by most persons with basic intravenous skills.
4. Right external jugular vein, just posterior to the midpoint of the sternocleidomastoid muscle (a peripheral vein). Cannulating this vein is a little harder, and requires a bit more experience.
5. Left external jugular vein, just posterior to the midpoint of the sternocleidomastoid muscle (a peripheral vein). Same as for right external jugular.
In addition to the peripheral veins listed above, the internal jugular veins (central veins) are also accessible, but gaining such access requires an advanced-level practitioner (CRNA, MD, PA). However, given the accessibility of the peripheral veins listed above, it is my medical opinion that cannulation of central veins will not be necessary to obtain venous access on David Larry Nelson.
GLOSSARY (listed in order of text appearance)
IV of sufficient size: intravenous catheters are sized in gauges, with larger numbers representing smaller diameters. Although the Warden did not know the size IV generally placed for lethal injection, I would suspect that it would be 18ga (ideal in terms of ability to inject the volume required in the time allotted, as well as not being as uncomfortable as a larger 16 or 14ga catheter) or possibly a 20ga (not as much flow). Anything smaller would be essentially worthless.
Palmar and Volar: the palmar surface of the arm is that which is contiguous with the palm of the hand; the volar surface represents the back of the hand.
870138.1

Most experienced IV personnel like to use the volar surface of the hand or forearm.
Antecubital Fossa: that part of the arm at the elbow where, with the palm up, the skin creases when the elbow is bent.
Ultrasonic examination: carried out using a state of the art Sonosite MicroMaxx ultrasound machine equipped with a linear vascular probe. It is becoming standard of care to use this device when performing central venous access, as it increases the level of safety considerably. This device emits sound waves into the tissues and then constructs a cross sectional image based upon the sound as it is reflected back. In the images in this document the surface of the skin is at the top of each image. On the right margin there is a depth scale which allows one to know the exact depth and size of a given structure. Typically, veins are seen in cross section as dark circles while the surrounding tissues are lighter.
Venous Stasis: poor circulation of the blood as it is returned to the heart from the legs. This is usually manifested by varicose veins, which are segmental enlargements of the veins in the leg caused by failure of the venous valve system, due to the increase of hydrostatic (fluid) pressure in the leg when a person is upright. This fluid pressure amounts to a sizeable figure, commonly 180 cm of water, or about one-half atmosphere pressure. This considerable load is dealt with via the pumping action of the leg muscles coupled with valves that do not permit reverse flow. Varicosities are most commonly hereditary, and may cause pain and localized swelling. In later stages of the disease, fluid leaks out of the vessels and ulcers form as the skin breaks down. Mr. Nelson has the varicose veins (varicosities) and early skin changes.
Varicosities: varicose veins. See above Venous Stasis.
Cannulation: refers to the act of inserting a plastic catheter into a vein or other structure. Also commonly referred to as "starting an IV." The technique requires locating the vein, usually by placing a tourniquet on the extremity between the heart and the desired site of placement and locating the vein by visual and palpatory methods. A catheter-over-needle device is then inserted into the vein through the skin; when blood returns through the needle the catheter is slid into the vein over the needle. The needle is then removed, leaving a plastic flexible pathway into the vein (also known as percutaneous placement). Neck veins (internal and external jugular) and subclavian veins do not allow the use of tourniquets; the patient is usually supine, in a head-down position on a stretcher to allow gravity to assist in blood pooling and dilation of the these veins.
870138.1

Lumen: the space inside the vein where blood is carried.
Anterior cervical triangle: an area in the neck bordered by the sternal and clavicular heads of the sternocleidomastoid muscle, and the upper border of the clavicle. This is readily demonstrated by turning the head to one side and then attempting to tum it the other way while holding the chin and resisting the movement.
Sternocleidomastoid muscle: The prominent strap muscle of the neck which attaches to the mastoid process (the bump on the skull immediately behind the ear) and to both the top of the sternum (breastbone) and the clavicle (collarbone) approximately an inch lateral to the sternal insertion.
Central venous access: in this document is the same as percutaneous (literally means through the skin) central venous access, and refers to the act of inserting a catheter-over-needle device into a central vein (see below). This may be achieved in three commonly used places: the internal jugular vein, the femoral vein, or the subclavian vein. The subclavian route has the greatest associated discomfort and risk, that being pneumothorax or puncturing of the lung. The femoral route is questionably the most difficult, as it is buried deep in the groin and its landmarks are not as reliable. The internal jugular is probably the easiest, as it is usually not more than a centimeter or two deep, with fairly reliable landmarks. Its main complication is cannulation of the carotid artery.
A note about "peripheral" and "central" veins is in order at this point. A peripheral vein is one in the extremities or neck which is separated from the great veins (inferior or superior vena cavae) leading to the heart by two or more divisions. Peripheral veins are frequently visually identified or palpable. In this particular instance, the external jugular would be considered a peripheral vein, since it is easily visualized, palpable, and empties into the subclavian veins on each side, which then empty into the superior vena cava via a short trunk named the brachiocephalic vein. The vena cava leads directly to the heart.
A central vein leads (via no more than one other named structure, usually a short trunk) to the vena cava (either inferior or superior), which then empties directly into the heart (right atrium).
870138.1

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

DAVID LARRY NELSON, Plaintiff,
v.
DONEL CAMPBELL, and GRANTT CULLIVER.
Defendants.

) ) ) ) ) Civil Action No. ) 2:03cvl008-T ) ) ) ) )
)

MOTION TO DISMISS

COME NOW the defendants, by and through the Attorney General for

the State of Alabama, and, move this Court to dismiss Nelson's complaint,

filed under 42 U.S.C. § 1983. More specifically, Nelson's complaint is due

to be dismissed in accordance with Rule l2(b)(l) and l2(b)(6), Fed.R.Civ.P.

In support of this motion, the defendants submit the following:

1. This case is now before this Court on remand from the United

States Supreme Court. Nelson v. Campbell, 541 U.S. ---, 124 S.Ct. 2117

(2004).

2. As defendants will explain below, the claims at issue have been

resolved and, consequently, this case has been rendered moot. Therefore,

there are no issues over which this Court has jurisdiction and the Court must dismiss this matter.
3. The crux of Nelson's case is his claim that the use of a "cut-down" procedure to access his veins constitutes cruel and unusual punishment. In his complaint, Nelson asserted that a cut-down procedure would: create risks of complications; be inhumane; conflict with evolving standards of decency; and entail unnecessary mental and physical pain and suffering. Complaint paragraphs 49,58,59,60.
Nelson also asserted that "[a]ny person undergoing a cut-down procedure should be entitled to review the credentials, certification, and training record of the medical personnel who will be performing the procedure." Complaint paragraph 56.
Finally, Nelson proposed an alternative procedure in lieu of the cutdown procedure. This procedure is known as a "percutaneous central line placement." Complaint paragraph 63. Nelson described the central line placement as "less invasive, less painful, faster, cheaper, and safer than the cut-down procedure." COl1'zplaint paragraph 65. In addition, Nelson submitted that this procedure" is humane", "does not violate the Plaintiffs Eighth Amendment rights," and "meets the contemporary standards of medical care." Complaint paragraphs 68, 78. Further, "[b]ecause of its

more widespread use, far more physicians and health care professionals are proficient and competent in performing the percutaneous technique." Complaint Attachm~ent 6, (Affidavit ofMark Heath MD).
4. Indeed, Nelson's success in overturning the original ruling of this Court is directly attributable to the extremely limited nature of his claim, and his repeated assertions that he was not challenging his execution per se, i.e., lethal injection itself, but was merely seeking to prohibit the use of a particular procedure, i.e., the cut-down. The Supreme Court made very clear that this fact was essential to its decision allowing Nelson to proceed with his complaint under § 1983. The Court emphasized that Nelson "has been careful throughout these proceedings, in his complaint and at oral argument, to assert that the cut-down, as well as the warden's refusal to provide reliable information regarding the cut-down protocol, are wholly unnecessary to gaining venous access." Nelson, 124 S.Ct. at 2124 (emphasis in original).
5. As a result of Nelson's representations - that he was challenging the use of a cut-down procedure and not his execution - the defendants have submitted, and this Court has ordered, that a cut-down procedure will not be administered upon Nelson. Instead, the defendants have agreed to utilize,
should it become necessary, percutaneous central line placement - the very

procedure suggested and requested by the plaintiff in his complaint and in the Supreme Court. Nelson, 124 S.Ct. at 2124 (stating that "Petitioner has alleged alternatives that, if they had been used would have allowed the State to proceed with the execution as scheduled").
6. Because the defendants have agreed not to administer the cut-down procedure and to instead use the procedure requested in the complaint, Nelson has received the relief he requested. Thus, the claims and issues raised by Nelson in his complaint are now moot and, as a result, this Court lacks subject-matter jurisdiction. Jurisdiction may be abated if a case becomes moot because there is no reasonable expectation the alleged violation will recur and interim relief or events have completely eradicated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625,631,99 S.Ct 1379,1383 (1979) (holding that the case had become moot during pendancy of the litigation where there was no reasonable expectation that the county would use invalidated written civil service exam); Scott v. Jones, 492 F.2d 130, 130-31 (5th Cir. 1974) (holding that transfer of prisoner from county jail to a state prison rendered moot his claims for injunctive and declaratory relief against county jail); Troy State Univ. v. Dickey, 402 F.2d 515, 516 (5th Cir. 1968) (stating that the court

lacks subject matter jurisdiction to "decide arguments after events have put them to rest") (citations omitted).
7. The remand from the Supreme Court further indicates that there are no longer justiciable issues in litigation. The Court noted that it "need not reach ... the difficult question of how to categorize method-of-execution claims generally" because "[r]espondents at oral argument conceded that § 1983 would be an appropriate vehicle [to challenge a cut-down procedure] for an inmate who is not facing execution ...." Nelson, 124 S. Ct. at 2123. "That venous access is a necessary prerequisite [to lethal injection] does not imply that a particular means of gaining such access is likewise necessary." ld. Indeed, the Court noted, "the gravamen of petitioner's entire claim is that use of the cut-down would be gratuitous." Id. (emphasis in original).
8. As this Court will recall, it originally dismissed Nelson's complaint on the basis that it was a challenge to the method-of-execution. According to the Supreme Court, however, the question whether the cutdown is a "necessary" component of lethal injection must be answered in the affirmative before Nelson's complaint can be categorized as a method-ofexecution claim. Indeed, the case was remanded with the following instructions: "If on remand and after an evidentiary hearing the District Court concludes that the use of the cut-down procedure as described in the

complaint is necessary for administering the lethal injection, the District Court will need to address the broader question, left open here, of how to treat method-of-execution claims generally." Id. at 2124. The Court expressly noted that "[a]n evidentiary hearing will in all likelihood be unnecessary, however, as the State now seems willing to implement petitioner's proposed alternatives." Id.
9. As the Supreme COUli predicted, an evidentiary hearing is not necessary, as the defendant has agreed to utilize - again, only should it become necessary - Nelson's requested procedure. Now that the issue raised is moot, the only way Nelson can proceed is by challenging the use of the very procedure he and his expert recommended. Based on Nelson's actions subsequent to the removal of a cut-down as a possibility - for example, his efforts to obtain all of his prison records, medical and non-medical- it seems clear that his intent is to proceed. Thus, whatever it was previously, his complaint - to the extent it survives at all - is now a challenge to the method-of-execution itself. This Court does not have subject matter jurisdiction over such a claim. Alternatively then, should the Court decline to dismiss Nelson's complaint on the basis of mootness, Nelson's complaint should be dismissed because it raises an issue not cognizable in § 1983.

10. As pointed out in the State's original motion to dismiss, a claim challenging the constitutionality of the manner in which his execution is to be carried out is the "functional equivalent" of a second habeas petition and, therefore, is "subject to the law applicable to successive habeas petitions." Hill v. Hopper, 112 F.3d 1088, 1089 (1Ith Cir. 1997). Thus, this Court "lack[s] jurisdiction to consider [Nelson's] request for relief because [Nelson] ha[s] not applied to [the Court of Appeals] for permission to file a second habeas petition." Id.; see also Felker v. Turpin, 101 F.3d 95 (11 th Cir. 1996); Williams v. Hopkins, 130 F.3d 333, 335 (8th Cir. 1997); McQueen v. Patton (In re Sapp), 118 F.3d 460 (6th Cir. 1997).
CONCLUSION For the foregoing reasons, this Court is due to dismiss the complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Respectfully submitted, Troy King Alabama Attorney General
/s/ J. Clayton Crenshaw J. Clayton Crenshaw Assistant Attorney General

CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of October, 2004, I electronically filed the foregoing with the Clerk of the Court using the CMlECF system which will send notification of such filing to the following: Joe W. Morgan, III and Michael Kennedy McIntyre
/s/1. Clayton Crenshaw 1. Clay Crenshaw Assistant Attorney General
ADDRESS OF COUNSEL Office of the Attorney General Alabama State House 11 South Union Street Montgomery, AL 36130 (334) 242-7300

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

DAVID LARRY NELSON,

}

}

Plaintiff,

}

}

vs.

}

}

DONAL CAMPBELL,

}

In his individual and

}

official capacity as

}

Commissioner of the Alabama }

Department of Corrections and }

}

GRANTT CULLIVER,

}

In his individual and

}

official capacity as Warden }

of William C. Holman

}

Correctional Facility,

}

}

Defendants.

}

____________________________ }

No. 2:03cv1008-T

SECOND AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
NOW COMES Plaintiff David Larry Nelson by and through undersigned counsel and, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure and this Court’s Order of April 12, 2005, hereby submits his Second Amended Complaint for Injunctive and Declaratory Relief against the Defendants named herein in the above-styled matter.
PART I JURISDICTION 1. This action arises under the authority vested in the Court by virtue of 42 U.S.C. §1983, 28 U.S.C. §1331, 28 U.S.C. §1343, 28 U.S.C. §1651, 28 U.S.C. §2201, and 28 U.S.C. §1367.

1

VENUE 2. Venue is proper pursuant to 28 U.S.C. 1391(b) because one or more of the Defendants resides in the Middle District of Alabama.
PARTIES 3. Plaintiff David Larry Nelson is and has been at all times pertinent to this matter a citizen of the United States of America and a citizen of the State of Alabama. He has been an inmate in the State of Alabama since 1978 and presently is incarcerated at William C. Holman Correctional Facility in Atmore, Alabama. 4. Defendant Donal Campbell is and has been at all times relevant to this action the Commissioner of the Alabama Department of Corrections. 5. Defendant Warden Grantt Culliver is and has been at all times relevant to this action, the Warden of William C. Holman Correctional Facility in Atmore, Alabama.
FACTUAL ALLEGATIONS 6. The Plaintiff presently is incarcerated at William C. Holman Correctional Facility in Atmore, Alabama (hereinafter referred to as “Holman”). 7. The Plaintiff is scheduled to be executed by lethal injection on October 9, 2003 at Holman at 6:00 p.m.. 8. The Plaintiff was previously incarcerated at W. E. Donaldson Correctional Facility in Bessemer, Alabama (hereinafter referred to as “Donaldson”). 9. The Plaintiff was transferred to Holman upon his death
2

warrant being issued by the Alabama Supreme Court. 10. Pursuant to Ala.Code 1975 §15-18-82, Defendant
Culliver, as the Warden at Holman, shall be the executioner at the Plaintiff’s execution and Defendant Campbell (hereinafter referred to as “Defendant D.O.C.”) acting in his official capacity of the Commissioner of the Alabama Department of Corrections will provide the necessary “room and appliances to carry out” the Plaintiff’s execution.
11. The Plaintiff has severely compromised veins and has encountered problems over the last two decades with prison medical personnel gaining venous access during routine physical examinations.
12. The Plaintiff is unable to attach a copy of his medical records to this pleading in support of the above allegation, because Defendant D.O.C. has refused to allow the Plaintiff access to his own medical records. (See, Correspondence to undersigned counsel Smith from the Alabama Department of Corrections, attached to this pleading as Attachment 1).
13. On at least one occasion, prison medical personnel has relinquished control of medical apparatus to the Plaintiff for the Plaintiff to draw his own blood after failed attempts by the medical personnel to do same.
14. Counsel for the Plaintiff contacted Defendant Culliver the day that the Plaintiff was transferred from Donaldson to Holman and informed Defendant Culliver of the Plaintiff’s physical problems regarding his veins and of concerns regarding
3

the protocol for gaining venous access for the lethal injection procedure.
15. At that time, counsel for the Plaintiff requested that either a private practice physician hired by the Plaintiff be allowed to examine and consult with the Plaintiff regarding venous access for the lethal injection procedure or that a prison physician examine and consult with the Plaintiff regarding same.
16. Defendant Culliver assured counsel for the Plaintiff that he would arrange for a physician to examine and consult with the Plaintiff regarding this issue soon after the Plaintiff’s arrival at Holman. (See Correspondence from undersigned counsel Smith to Warden Culliver confirming their telephone conversation, attached to this pleading as Attachment 2).
17. As of the filing date of this pleading, Defendant Culliver has failed to have a physician so examine and consult with the Plaintiff.
18. Defendant Culliver has refused repeated requests that a private physician hired by the Plaintiff be allowed to examine and consult with the Plaintiff.
19. Said refusal is a clear violation of Ala.Code 1975 §15-18-81, which provides in relevant part, “…all persons outside the said prison shall be denied access to him, except his physician and lawyer, who shall be admitted to see him when necessary to his health or for the transaction of business…”. A copy of Ala.Code 1975 §15-18-81 is attached to this pleading as
4

Attachment 3.

20. Defendant Culliver furthermore has refused to allow

that same private physician to conduct a telephone conference

with the medical personnel Defendant Culliver intends to have

perform the venous access procedure immediately prior to the

Plaintiff’s execution or with any

other prison medical

personnel.

21. During the telephone conversation referenced in

Paragraph 14 above, counsel for the Plaintiff requested from

Defendant Culliver a copy of the State of Alabama’s protocol for

the lethal injection procedure.

22. Defendant Culliver refused to provide counsel for the

Plaintiff with same. (See Attachment 2).

23. Furthermore, Defendant Culliver refused to provide any

meaningful information concerning the proto col for the lethal

injection procedure or for the medical procedure that would have

to be implemented to gain venous access to the Plaintiff

immediately preceding the execution despite counsel’s

representation to Defendant Culliver that the Plaintiff had a

valid basis for his concerns. (See Attachment 2).

24. It should be noted that counsel for the Plaintiff also

contacted Defendant D. O. C. by telephone and then by faxed

correspondence to request a copy of Alabama’s protocol for the

lethal injection procedure and the medical procedure that would

have to be implemented to gain venous access to the Plaintiff as

a prior to the execution. (See Attachment 4).

25. Defendant D. O. C. denied the request by email

5

message. (See Attachment 5). 26. Defendant Culliver and a prison nurse employed at
Holman have met with the Plaintiff on two separate occasions since the Plaintiff’s arrival at Holman and have described to the Plaintiff the procedure Defendant Culliver intends to implement in order to gain venous access prior to the execution.
27. Ironically, this nurse is the same medical personnel referred to in Paragraph 13 above who had to relinquish medical apparatus to the Plaintiff for the Plaintiff to draw his own blood during a routine physical examination.
28. Notably, Defendant Culliver during the first meeting acknowledged to the Plaintiff that the Plaintiff does exhibit compromised veins.
29. Of paramount importance for purposes of this pleading, during that first meeting, Defendant Culliver also informed the Plaintiff that a medical procedure will have to be performed on the Plaintiff prior to the Plaintiff’s execution in order for Defendant Culliver to gain venous access.
30. Defendant Culliver furthermore acknowledged to counsel for the Plaintiff that the Plaintiff’s execution will be the first instance of the State of Alabama having to perform a medical procedure prior to the execution to gain venous access.
31. Based upon conversations in which counsel for the Plaintiff has engaged with Defendant Culliver and with Defendant D. O. C., counsel for the Plaintiff in good faith submits to this Court that the State of Alabama does not have as part of its lethal injection protocol writte n medical procedures that
6

comport with contemporary medical standards for gaining venous access in condemned inmates such as the Plaintiff prior to an execution.
32. Furthermore, counsel for the Plaintiff in good faith submits to this Court that Defendant Culliver and Defendant D. O. C. are designing a medical procedure to be followed as a predicate to the Plaintiff’s execution without being qualified to so design such medical procedure.
33. Furthermore, counsel for the Plaintiff in good faith submits to this Court that the State of Alabama is overstepping its authority in attempting to perform medical procedures outside of a medical setting without appropriate medical safeguards in an attempt to carry out the legal procedure of execution.
34. Assuming arguendo that this Court finds that it is appropriate for Defendant Culliver and Defendant D. O. C. to design and implement a medical procedure to be performed outside of a suitably equipped medical facility as a predicate to the legal procedure of execution by lethal injection, counsel for the Plaintiff alerts this Court that the procedure as described by Defendant Culliver to the Plaintiff is exceptionally suspect and carries with it a significant risk that the Eighth Amendment’s prohibitions against cruel and unusual punishments will be violated by its use.
35. Specifically and as stated above, Defendant Culliver and the aforementioned nurse have met with the Plaintiff together on two separate occasions to describe the medical
7

procedure that Defendant Culliver intends to implement with the Plaintiff to gain venous access.
36. Defendant Culliver and the nurse initially described the medical procedure as (1) involving an incision of approximately 0.5 inch being made in the Plaintiff’s arm through which a catheter would be inserted into a vein and (2) being performed at least twenty-four hours in advance of the execution.
37. More recently, however, Defendant Culliver and the nurse informed the Plaintiff that (1) the incision will be approximately two inches in length and will be made either in the Plaintiff’s leg or arm, (2) this medical procedure will not be performed until approximately one hour before the execution, and (3) only a local anesthetic will be used during the procedure.
38. Logically, if the State of Alabama had a written protocol for the medical procedure necessary to be performed immediately prior to an execution of condemned prisoners with whom peripheral intravenous access was not possible, there would be no discrepancies between Defendant Culliver’s descriptions of the procedure to the Plaintiff.
39. Also troublesome is the fact that Defendant Culliver described the procedure to undersigned counsel on October 3, 2003 as basically being that described in Paragraph 31 above-which involves a two inch incision being made in the Plaintiff and a catheter being inserted through the incision into a vein-but also claimed that the procedure would not be a cut-down
8

procedure. 40. According to Dr. Mark Heath, a licensed physician who
is a Board Certified anesthesiologist and assistant professor at Columbia University College of Physicians and Surgeons, the procedure described by Defendant Culliver is precisely a cutdown procedure. (See Paragraph 8 of the Affidavit of Mark Heath, M.D., attached to this pleading as Attachment 6).
41. Clearly, Defendant Culliver does not have the requisite knowledge base to be in charge of designing, performing, or overseeing this medical procedure.
42. From the descriptions of the procedure Defendant Culliver has given the Plaintiff and undersigned counsel and based upon a telephone conversation between undersigned counsel Smith and Mr. Andy Redd of the legal department of the Alabama Department of Corrections, undersigned counsel in good faith believes that Defendant Culliver in fact does intend to perform a cut-down procedure on the Plaintiff to gain venous access prior to the Plaintiff’s execution by lethal injection.
43. A cut-down procedure is an invasive and barbaric medical procedure which does not comport with the contemporary practice of medical care. (See Paragraphs 21, 22, 23, and 24 of the Affidavit of Mark Heath, M.D.).
44. If the State of Alabama does intend to perform a cutdown procedure, this clearly would constitute cruel and unusual punishment because this medical procedure is invasive, it may give rise to serious medical complications, it involves unnecessary pain and suffering, it involves the mutilation of
9

the Plaintiff’s body, and there are better methods available for a qualified physician to perform on the Plaintiff to gain venous access which would comport with contemporary medical care standards. (See Paragraphs 18, 20, 21, 22, 23, and 24 of Affidavit of Mark Heath, M.D.).
45. According to Dr. Mark Heath, a cut-down procedure involves making a series of surgical incisions through the skin, through the underlying connective tissue, through the underlying layers of fat, through the underlying layers of muscle, until the region surrounding a large vein is reached. (See Paragraph 9 of Affidavit of Mark Heath, M.D.).
46. During a cut-down procedure, blood vessels may have to be closed either by the use of cautery or the use of ligatory suture. (See Paragraph 11 of Affidavit of Mark Heath, M.D.).
47. Furthermore, cut-down procedures are usually performed under deep sedation that includes the administration of potent intravenous analgesics (drugs that block pain) because otherwise, it would be an extraordinarily disturbing and distressing experience. (See Paragraph 13 of Affidavit of Mark Heath, M.D.).
48. Of great concern is the fact that many complications of the cut-down procedure are well-recognized by the medical community. (See Paragraph 18 of Affidavit of Mark Heath, M.D.).
49. These complications include the very painful and lifethreatening conditions of severe hemorrhage (with accompanying sense of asphyxiation and terror), pneumothorax (with accompanying severe distress, sense of suffocation and potential
10

cardiovascular collapse), and cardiac dysrhythmia (abnormal electrical activity of the heart leading to shock with accompanying severe chest pain, nausea, vomiting, and sense of suffocation or asphyxia). (See Paragraph 18 of Affidavit of Mark Heath, M.D.).
50. Whenever a cut-down procedure is performed in the elective surgical setting, it is imperative that the medical personnel performing the procedure have immediate access to a variety of drugs and medical equipment that includes but is not limited to suction, surgical lighting, surgical instruments, cautery, chest tubes, EKG monitors and equipment, and a defibrillator. (See Paragraph 18 of Affidavit of Mark Heath, M.D.).
51. The Defendants have not assured the Plaintiff that any of the drugs or medical equipment described above will be available during the medical procedure they intend to perform at Holman.
52. Furthermore, the Defendants refuse to supply the Plaintiff with any information concerning the personnel who will be present during the medical procedure to be performed on the Plaintiff prior to the legal procedure of his execution by lethal injection.
53. As Dr. Mark Heath explains, many, if not most, physicians have never personally performed a cut-down procedure and do not possess the requisite skills for competently and safely performing such a procedure. (See Paragraph 14 of Affidavit of Mark Heath, M.D.).
11

54. Hospitals in the private sector require medical

practitioners to be credentialed for the specific procedure of

cut-downs for the purpose of safeguarding patients by ensuring

that procedures are performed by experienced and competent

personnel. (See Paragraph 15 of Affidavit of Mark Heath, M.D.).

55. Subjecting a person to a cut-down procedure in the

hands of inexperienced personnel would represent a clear risk of

a medical misadventure and botched outcome. (See Paragraph 16

of Affidavit of Mark Heath, M.D.).

56. Any person undergoing a cut-down procedure should be

entitled to review the credentials, certification, and training

record of the medical personnel who will be performing the

procedure. (See Paragraph 17 of Affidavit of Mark Heath, M.D.).

57. In the absence of such a review, and particularly

given Defendant Culliver's refusal to permit such scrutiny

,

there is a complete lack of any reasonable assurance that the

medical procedure Defendant Culliver intends to perform on the

Plaintiff as a predicate to his execution will be humane. (See

Paragraph 17 of Affidavit of Mark Heath, M.D.).

58. The cut-down procedure Defendant Culliver apparently

intends to perform on the Plaintiff carries with it a

substantial risk of inflicting substantial and prolonged pain.

See Farmer v. Brennan , 511 U.S. 825, 847 (1994) (punishments are

cruel when they entail exposure to risks that “serve[] no

‘legitimate penological objective’”; prison official may be held

liable under Eighth Amendment for denying humane conditions of

confinement if he knows that inmates face substantial risk of

12

serious harm) (citations omitted). 59. The cut-down procedure Defendant Culliver apparently
intends to perform on the Plaintiff does not comport with evolving standards of decency. See Gregg v. Georgia , 428 U.S. 153, 171 (1976) and Trop v. Dulles, 356 U.S. 86, 101 (1958).

60. The cut-down procedure the Defendants apparently

intend to perform on the Plaintiff impermissibly entails

unnecessary mental as well as physical pain and suffering during

the execution process. See Trop v. Dulles , 356 U.S. 86, 111

(1958) (Brennan, J., concurring).

61. If the risks of inflicting pain and suffering

associated with execution by lethal injection in the Plaintiff’s

case may be easily remedied or mitigated by employing

alternative methods or altering the procedures employed in the

execution process, the Defendants’ failure to take these steps

violates the Plaintiff’s rights under the United States

Constitution.

62. According to Dr. Mark Heath, there is an alternative

procedure that the Defendants could utilize in gaining venous

access in the Plaintiff that would easily remedy or mitigate the

risks of unnecessary pain and suffering inherent in the cut-down

procedure Defendant Culliver intends

to utilize. (See

Paragraphs 20, 21, 22, and 23 of Affidavit of Mark Heath, M.D.).

13

63. This alternative procedure is referred to by several terms, including percutaneous central line placement, percutaneous central access, percutaneous central venous cannulation, and percutaneous technique. (See Paragraph 23 of Affidavit of Mark Heath, M.D.).
64. This procedure has, except in rare circumstances, supplanted the use of the cut-down procedure and is superior to the cut-down procedure in virtually all regards. (See Paragraph 23 of Affidavit of Mark Heath, M.D.).
65. This procedure is less invasive, less painful, faster, cheaper, and safer that the cut-down procedure. (See Paragraph 23 of Affidavit of Mark Heath, M.D.).
66. Because of this procedure's more widespread use, more physicians are proficient and competent in performing this procedure as compared to the cut-down procedure.
67. It would be extraordinarily rare to perform a central venous cut-down procedure without first attempting and failing to successfully obtain venous access using this procedure.
68. The Defendants have not articulated a reason for implementing the barbaric cut-down medical procedure on the Plaintiff in lieu of the medical procedure available that meets contemporary standards of medical care.
69. Of great significance and as referenced above, Defendant Culliver will not disclose the training or qualifications of the person(s) responsible for performing either the medical procedure on the Plaintiff that Defendant Culliver has acknowledged must be performed as a predicate to
14

the legal procedure of execution or the legal procedure of execution by lethal injection.
70. As such, it is unknown to anyone other than the Defendants whether a physician with the appropriate credentials, training, and experience will be present during the requisite medical procedure and/or the legal procedure of execution by lethal injection.
71. The refusal of the Defendants to identify and describe the medical personnel, if any, that will be present during the medical procedure performed on the Plaintiff and during the execution itself raises issues of constitutional importance.
72. The Defendants are deliberately preventing the public, the courts, and the condemned prisoners themselves from knowing any meaningful information about the lethal injection protocol and any accompanying medical procedure protocol that the Defendants intend to use in the killing of citizens of the State of Alabama.
73. Independent public scrutiny undeniably plays a significant and indispensable role in the proper functioning of capital punishment.
74. Public disclosure of Alabama’s lethal injection protocol and accompanying mandated medical procedures for gaining venous access are critical in allowing the public to determine whether the punishment of execution by lethal
15

injection in the State of Alabama comports with “the evolving standards of decency which mark the progress of a maturing society”. Trop v. Dulles, 356 U.S. 86 (1958).
75. For this Court and for the public to determine whether lethal injection execution in the State of Alabama is being humanely administered in cases where peripheral intravenous access is not possible, the State of Alabama must disclose reliable information about its lethal injection protocol and the mandated medical procedures that will be employed to gain venous access in condemned prisoners.
76. As it stands now, this Court, the public, and the Plaintiff are being forced to rely upon the very people responsible for designing and administering the protocol and performing the invasive and risky medical procedures for assurances that the protocol and procedures are sound and that they comport with “the evolving standards of decency”.
77. In order to pass constitutional muster, an independent body - - such as this Court or the public - - must be allowed to review the State of Alabama’s protocol.
78. It should be stressed that there exists a humane method for gaining venous access in the Plaintiff that does not violate the Plaintiff’s Eighth Amendment rights, but Defendant Culliver is adamant that he intends to implement an inhumane method for gaining venous access in the Plaintiff that does violate the Plaintiff’s Eighth Amendment rights.
79. Given the fact that Defendant Culliver has conceded that the Plaintiff’s execution will mark the first instance of
16

the State of Alabama having to first perform an invasive medical procedure on a condemned inmate to gain venous access, there exists a substantial risk that the Defendants intend to violate the Eighth Amendment’s prohibitions against inflicting cruel and unusual punishments with respect to the Plaintiff.
80. Given the posture that the Defendants have taken regarding the secrecy of the lethal injection protocol and accompanying mandated medical procedures, this Court cannot be confident that the Defendants are taking all necessary and appropriate steps to minimize the known significant risks of inflicting severe and unnecessary pain and suffering in administering the punishment of leth al injection execution to the Plaintiff.
81. Where, as here, the Plaintiff has demonstrated the existence of genuine and realistic concerns about the humaneness of the execution procedure, it is respectfully submitted that this Court cannot, in good conscience, condone the risk of sending the Plaintiff to his state sponsored death without first assuring itself that the constitutional prohibitions against the infliction of “unnecessary pain in the execution of the death sentence” will be honored. Louisiana ex re. Francis v. Resweber, 329 U.S. 459 (1947).
82. Failure to provide injunctive relief will result in irreparable harm in that the Defendants will perform the abovedescribed cut-down procedure on the Plaintiff prior to his execution which is scheduled for October 9, 2003 at 6:00 p.m..
17

CAUSE OF ACTION COUNT I
Deprivation of Constitutional Rights Under the Eighth Amendment
83. Plaintiff has the right under the Eighth Amendment to the United States Constitution, as applied to states through the Fourteenth Amendment, to be free from cruel and unusual punishments.
84. The actions of the Defendants will result in the deprivation of the Plaintiff’s rights as guaranteed by the Eighth Amendment.
State Law Claim 85. By Defendant Culliver refusing to allow a physician to examine and consult with the Plaintiff regarding the likely ability of Defendant Culliver to gain venous access to the Plaintiff as a predicate to the Plaintiff’s execution, Defendant Culliver has violated Ala.Code 1975 §15-18-81.
In Forma Pauperis Status 86. The Plaintiff has been incarcerated since 1978. 87. The Plaintiff previously has been allowed to proceed in forma pauperis in the United States District Court for the Northern District of Alabama, the United States Court of Appeals for the Eleventh Circuit, and the Supreme Court of the United States.
18

PRAYER FOR RELIEF WHEREFORE, the Plaintiff requests that this Court provide the Plaintiff with the following relief: a. Enter an order allowing the Plaintiff to proceed in forma pauperis in this proceeding. b. Enter an order granting injunctive relief and staying the Plaintiff’s execution, which is currently scheduled for October 9, 2003 at 6:00 p.m.; c. Enter an order that directs the Defendants to provide the Plaintiff with the protocol concerning the medical procedure which will be followed to gain venous access as a predicate to the Plaintiff’s execution and the legal procedure of execution by lethal injection; d. Enter an order that directs the Defendants to consult with medical experts and promulgate a protocol concerning venous access that comports with contemporary standards of medical care and the Eighth Amendment to the United States Constitution; e. Enter an order that directs the Defendants to allow the Plaintiff to meet with his physician pursuant to Ala.Code 1975 §15-18-81; f. Enter an order that provides for attorney's fees and costs of litigation under Title 28 of the Federal Code, and 42 U.S.C. 1988; and g. Such other and further relief as this Court deems just and appropriate.
PART II 88. Plaintiff hereby incorporates by reference Paragraphs 1 through 87 of his original Complaint and amends said Complaint
19

as set forth below.

89. The Defendants through their actions are treating the

Plaintiff with "deliberate indifference". See

Estelle v.

Gamble, 429 U.S. 97 (1976) and Farmer v. Brennan , 511 U.S. 825

(1994).

90. The Defendants' "deliberate indifference" to the

Plaintiff's serious medical needs violates the Eighth

Amendment's prohibitions against cruel and unusual punishments

and creates a risk of "unnecessary and wanton infliction of

pain". See Estelle v. Gamble, 429 U.S. 97 (1976).

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff requests that this Court provide

the Plaintiff with the following relief:

a. Enter an order allowing the Plaintiff to proceed in

forma pauperis in this proceeding.

b. Enter an order granting injunctive relief and staying

the Plaintiff’s execution, which is currently scheduled for

October 9, 2003 at 6:00 p.m.;

c. Enter an order that directs the Defendants to provide

the Plaintiff with the protocol concerning the medical procedure

which will be followed to gain venous access as a predicate to

the Plaintiff’s execution and the legal procedure of execution

by lethal injection;

d. Enter an order that directs the Defendants to consult

20

with medical experts and promulgate a protocol concerning venous access that comports with contemporary standards of medical care and the Eighth Amendment to the United States Constitution;
e. Enter an order that directs the Defendants to allow the Plaintiff to meet with his physician pursuant to Ala.Code 1975 §15-18-81;
f. Enter an order that provides for attorney's fees and costs of litigation under Title 28 of the Federal Code, and 42 U.S.C. 1988; and
g. Such other and further relief as this Court deems just and appropriate.
PART III 91. The Plaintiff reasserts the allegations contained in Paragraphs 1 through 90 as though fully set out herein. 92. Pursuant to Ala.Code 1975 §15-18-82, Defendant Culliver, as the Warden at Holman, shall be the executioner at the Plaintiff’s execution and Defendant Campbell (hereinafter referred to as “Defendant D.O.C.”) acting in his official capacity as the Commissioner of the Alabama Department of Corrections will provide the necessary “room and appliances to carry out” the Plaintiff’s execution. 93. The Plaintiff has severely compromised veins and has encountered problems over the last two decades with prison medical personnel gaining venous access during routine physical
21

examinations. 94. Prior to the Plaintiff’s scheduled execution date of
October 9, 2003, Defendant Culliver met with the Plaintiff and acknowledged that the Plaintiff exhibited compromised veins.
95. Defendant Culliver also informed the Plaintiff that a medical procedure would have to be performed on the Plaintiff prior to the Plaintiff’s execution in order for Defendant Culliver to gain venous access.
96. Defendant Culliver furthermore acknowledged to counsel for the Plaintiff that the Plaintiff’s execution will be the first instance of the State of Alabama having to perform a medical procedure prior to the execution to gain venous access.
97. In Nelson v. Campbell , 541 U.S. 637 (2004), the Supreme Court of the United States (hereinafter, the “Supreme Court”) found that the Plaintiff’s §1983 action should proceed, that the District Court had jurisdiction over the subject matter, and that the Plaintiff had stated a claim upon which relief could be granted.
98. Subsequent to the Plaintiff’s case being remanded to the Eleventh Circuit and then to this Court, the Defendants agreed not to utilize the cut-down procedure to gain venous access to the Plaintiff prior to the Plaintiff’s execution.
99. The Defendants have now stated that, in lieu of a cutdown procedure, the defendants intend, should it become
22

necessary, to gain venous access to the Plaintiff utilizing a
percutaneous central line placement procedure.
100. The only information that the Defendants have provided
the Plaintiff concerning the percutaneous central line placement
procedure that the Defendants intend to utilize to gain venous
access to the Plaintiff is a three-sentenced paragraph from the
Defendants’ execution protocol, which does not even refer to
percutaneous central line placement and which states in full:
If lethal injection is the means of execution, the I. V. Team will be escorted into the execution chamber to start the I. V. The heart monitor leads will be applied to the condemned. If the veins are such that intravenous access cannot be provided, contract medical personnel will perform a central line procedure to provide an intravenous access.

101. The Plaintiff submits to

this Court that the

Defendants’ three-sentenced paragraph from their execution

protocol does not describe in any meaningful manner a process

that comports with co ntemporary medical standards for gai ning

venous access in condemned inmates such as the Plaintiff prior

to an execution.

102. Counsel for the Plaintiff in good faith submits that

the Defendants are designing a medical procedure to be followed

as a predicate to the Plaintiff’s execution without being

qualified to so design such a medical procedure.

103. Furthermore, counsel for the Plaintiff in good faith

23

submits that the Defendants are overstepping their authority in attempting to perform medical procedures outside of a medical setting without appropriate medical safeguards in an attempt to carry out the legal procedure of execution.
104. Assuming arguendo that this Court finds that it is appropriate for the Defendants to design and implement a medical procedure to be performed outside of a suitably equipped medical facility as a predicate to the Plaintiff’s execution by lethal injection, counsel for the Plaintiff alerts this Court that the procedure as described in the Defendants’ three-sentenced protocol is suspect and carries with it a significant risk that the Eighth Amendment’s prohibitions against cruel and unusual punishments will be violated by its use.
105. The Plaintiff is in a position of having to rely upon the Defendants to promulgate and carry out a venous access protocol that comports with contemporary standards of medical care and which does not violate the Eighth Amendment.
106. Significantly, these are the same Defendants who were planning to promulgate and carry out a venous access protocol that was unanimously rejected by the Supreme Court. Nelson v. Campbell, 541 U.S. 637 (2004).
107. Tellingly, after the Plaintiff’s case was remanded back to this Court, counsel for the Defendants during a teleconference conducted by this Court on August 6, 2004 stated:
24

Well, let me tell you what we’re going to represent to the Court now and subsequently in writing, having educated ourselves in all these matters, that we are not going to utilize the challenged procedure, the cut-down procedure. (emphasis added). The clear implication is that the Defendants did not exert the effort to educate themselves regarding the subject matter of venous access prior to the case being decided by the Supreme Court despite the fact that they were in charge of promulgating and carrying out the protocol to gain venous access to the Plaintiff. 108. The Plaintiff asserts that the conduct of the Defendants from September 2003 to the present time indicates that they cannot be relied upon to promulgate a venous access protocol that comports with contemporary standards of medical care and which does not violate the Eighth Amendment without this Court’s intervention. 109. The percutaneous central line placement procedure is a complex medical procedure. In order for that procedure to comport with contemporary standards of medical care and not violate the Eighth Amendment, the Defendants’ protocol must provide at a minimum the following information: (a) A reasonably detailed description of the procedure which they intend to utilize in order to gain venous access to the Plaintiff; (b) Information as to who will perform the procedure to
25

gain venous access to the Plaintiff; (c) Information concerning the qualifications of the
individual(s) who will perform the procedure to gain venous access to the Plaintiff;
(d) Information as to where the procedure to gain venous access to the Plaintiff will be performed; and
(e) Information concerning the availability of necessary and precautionary medical apparatus at the location where the procedure to gain venous access will be performed.
110. As was the case in October 2003, the Defendants have refused to provide the Plaintiff with any of the above-described information.
111. If the Defendants intend to perform a percutaneous central line placement procedure without providing the Plaintiff with the above-described information, said conduct would not comport with contemporary standards of medical care and would constitute cruel and unusual punishment under the Eighth Amendment.
112. It is well recognized by the medical community that complications can occur when utilizing the percutaneous central line placement procedure. These complications include the very painful and life-threatening conditions of severe hemorrhage (with accompanying sense of asphyxiation and terror), pneumothorax (with accompanying severe distress, sense of
26

suffocation and potential cardiovascular collapse), and cardiac dysrhythmia (abnormal electrical activity of the heart leading to shock with accompanying severe chest pain, nausea, vomiting, and sense of suffocation or asphyxia).
113. Whenever a percutaneous central line placement procedure is performed in the elective surgical setting, it is imperative that the medical personnel performing the procedure have immediate access to a variety of drugs and medical equipment that includes but is not limited to suction, surgical lighting, surgical instruments, cautery, chest tubes, EKG monitors and equipment, and a defibrillator.
114. The Defendants have not assured the Plaintiff that any of the drugs or medical equipment described above will be available during the medical procedure they intend to perform at Holman.
115. Furthermore, the Defendants refuse to supply the Plaintiff with any meaningful information concerning the personnel who will be present during the medical procedure to be performed on the Plaintiff prior to the legal procedure of his execution by lethal injection.
116. Most physicians do not possess the requisite skills to competently and safely perform a percutaneous central line placement procedure.
117. Subjecting a person to a percutaneous central line
27

placement procedure in the hands of inexperienced personnel

would represent a clear risk of a medical misadventure and

botched outcome.

118. Any person undergoing a percutaneous central line

placement procedure should be entitled to review the

credentials, certification, and training record of the medical

personnel who will be performing the procedure.

119. In the absence of such a review, and particularly

given the Defendants’ refusal to disclose any meaningful

information, there is a complete lack of any reasonable

assurance that the medical procedure the Defendants intend to

perform on the Plaintiff as a predicate to his execution will be

humane.

120. Given the Defendants’ refusal to disclose any

meaningful information and refusal to confirm adequate

safeguards will be in place, the percutaneous central line

placement procedure that the Defendants apparently intend to

perform on the Plaintiff carries with it a substantial risk of

inflicting substantial and prolonged pain. See

Farmer v.

Brennan, 511 U.S. 825, 847 (1994) (punishments are cruel when

they entail exposure to risks that “serve[] no ‘legitimate

penological objective’”; prison official may be held liable

under Eighth Amendment for denying humane conditions of

confinement if he knows that inmates face substantial risk of

28

serious harm) (citations omitted).

121. Given the Defendants’ refusal to disclose any

meaningful information and refusal to confirm adequate

safeguards will be in place, the percutaneous central line

placement procedure that the Defendants apparently intend to

perform on the Plaintiff does not comport with evolving

standards of decency. See Gregg v. Georgia , 428 U.S. 153, 171

(1976) and Trop v. Dulles, 356 U.S. 86, 101 (1958).

122. Given the Defendants’ refusal to disclose any

meaningful information and refusal to confirm adequate

safeguards will be in place, the percutaneous central line

placement procedure that the Defendants apparently intend to

perform on the Plaintiff impermissibly entails unnecessary

mental as well as physical pain and suffering during the

execution process. See Trop v. Dulles , 356 U.S. 86, 111 (1958)

(Brennan, J., concurring).

123. The Defendants through their actions are treating the

Plaintiff with "deliberate indifference". See

Estelle v.

Gamble, 429 U.S. 97 (1976) and Farmer v. Brennan , 511 U.S. 825

(1994).

124. The Defendants' "deliberate indifference" to the

Plaintiff's serious medical needs violates the Eighth

Amendment's prohibitions against cruel and unusual punishments

and creates a risk of "unnecessary and wanton infliction of

29

pain". See Estelle v. Gamble, 429 U.S. 97 (1976). 125. If the risks of inflicting pain and suffering
associated with execution by lethal injection in the Plaintiff’s case may be easily remedied or mitigated by employing adequate safeguards, the Defendants’ failure to take these steps violates the Plaintiff’s rights under the United States Constitution.
126. The Defendants have not articulated a reason for refusing to provide the Plaintiff with the information requested in Paragraph 109, supra..
127. Significantly, as referenced above, the Defendants refuse to disclose the training or qualifications of the individuals responsible for performing the percutaneous central line placement procedure on the Plaintiff as a predicate to the Plaintiff’s execution by lethal injection.
128. As such, it is unknown to anyone other than the Defendants whether a physician with the appropriate credentials, training, and experience will even be present during the percutaneous central line placement procedure.
129. The refusal of the Defendants to identify and describe the medical personnel, if any, that will be present during the percutaneous central line placement procedure performed on the Plaintiff raises issues of constitutional importance.
130. Given the posture that the Defendants have taken regarding the secrecy concerning the utilization of the
30

percutaneous central line placement procedure, this Court cannot

be confident that the Defendants are taking all necessary and

appropriate steps to minimize the known significant risks of

inflicting severe and unnecessary pain and suffering in gaining

venous access as a predicate to the Plaintiff’s execution.

131. Where, as here, the Plaintiff has demonstrated the

existence of genuine and realistic concerns about the medical

dangers associated with the

execution procedure, it is

respectfully submitted that this Court cannot, in good

conscience, condone the risk of sending the Plaintiff to his

state sponsored death without first assuring itself that the

constitutional prohibitions against the infliction of

“unnecessary pain in the execution of the death sentence” will

be honored. Louisiana ex rel. Francis v. Resweber , 329 U.S. 459

(1947).

132. In response to the Defendants’ assertion that they

intend to utilize the percutaneous central line placement

procedure in order to gain venous access to the Plaintiff, the

Plaintiff believes that he is entitled at the minimum to have

the Defendants:

(a) Provide the Plaintiff with a detailed description of

the procedure which they intend to utilize in order to gain

venous access to the Plaintiff;

(b) Provide information to the Plaintiff as to who will

31

perform the procedure to gain venous access to the Plaintiff;

(c) Provide information to the Plaintiff concerning the

qualifications of the individual(s) who will perform the

procedure to gain venous access to the Plaintiff;

(d) Provide information to the Plaintiff as to where the

procedure to gain venous access to the Plaintiff will be

performed; and

(e) Provide information to the Plaintiff concerning the

availability of necessary and precautionary medical apparatus at

the location where the procedure to gain venous access will be

performed.

133. As was the case in October 2003, the Defendants have

refused to provide the Plaintiff with any of the above-described

information.

134. In fact, the only information that the Defendants have

provided the Plaintiff concerning the manner in which the

Defendants intend to gain venous access to the Plaintiff is a

three-sentenced paragraph which fails to even mention

the

procedure that the Defendants intend to utilize, i.e., the

percutaneous central line placement procedure.

135. If the percutaneous central line placement procedure

performed on the Plaintiff is not performed by a qualified

physician in an appropriate medical environment that has the

necessary and precautionary medical apparatus, the Defendants’

32

“percutaneous central line placement” procedure could, like the ‘cut down procedure’ addressed in Nelson v. Campbell , 541 U.S. 637 __, 124 S.Ct. 2117 (2004), be ‘gratuitous’ and ‘wholly unnecessary,’ Id. at ___, 124 S.Ct. at 2123-2124, since there are other, safer appropriate means to gain venous access to the Plaintiff and still carry out the Plaintiff’s execution by lethal injection.
PRAYER FOR RELIEF WHEREFORE, the Plaintiff requests that this Court provide the Plaintiff with the following relief: a. Enter an order allowing the Plaintiff to proceed in forma pauperis in this proceeding. b. Enter an order granting injunctive relief and staying the Plaintiff’s execution pending resolution of the present action; c. Direct the Defendants to consult with medical experts and promulgate a protocol concerning venous access that comports with contemporary standards of medical care and the Eighth Amendment to the United States Constitution and to provide a copy of that protocol to the Plaintiff; d. Enter an order that provides for attorney's fees and costs of litigation under Title 28 of the Federal Code, and 42 U.S.C. 1988; and e. Such other and further relief as this Court deems just
33

and appropriate.
Respectfully
Attorney 507 The Grant Building 44 Broad Street, N.W. Atlanta, Georgia 30303 Telephone (404) 688-0900
/s/ H. Georgia Attorney 507 The Grant Building 44 Broad Street, N.W. Atlanta, Georgia 30303 Telephone (404) 688-0900
JOE Alabama Attorney
Suite B 600 Robert Jemison Road Birmingham, Alabama 35209 Telephone (205) 945-8550 Fax No. (205) 945-9005

submitted,
/s/ Michael Kennedy McIntyre MICHAEL KENNEDY McINTYRE Georgia Bar No. 494075
for Plaintiff
H. Victoria Smith VICTORIA SMITH
Bar No. 658605 for Plaintiff
/s/ Joe W. Morgan, III W. MORGAN, III Bar No. MOR093 for Plaintiff

34

CERTIFICATE OF SERVICE I hereby certify that on April 22, 2005, I electronically filed the foregoing Second Amended Complaint for Injunctive and Declaratory Relief with the Clerk of Court using the CM/ECF system which will send notification of such filing to Assistant Attorney General J. Clay Crenshaw.
/s/ Michael Kennedy McIntyre MICHAEL KENNEDY McINTYRE
35

 
 Case 2:03-cv-01008-MHT -WC Document 158 Filed 03/31/08 Page 1 of 1

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DAVID LARRY NELSON, Plaintiff, v.
RICHARD F. ALLEN and GRANTT CULLIVER,
Defendants.

)

)

)

)

)

CIVIL ACTION NO.

)

2:03cv1008-MHT

)

)

)

)

ORDER

The court being of the opinion that the decision of

the United States Supreme Court in Baze v. Rees, cert.

granted, 128 S. Ct. 34 (Sept. 25, 2007), and argued Jan.

7, 2008, could, at least, inform the final disposition of

this case and the court being of the opinion that the

briefs and any evidence should be considered in light of

Baze, it is ORDERED that the motion for summary judgment

(doc. no. 118) is denied with leave to renew within 30

days of the Baze decision.

DONE, this the 31st day of March, 2008.

/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case 2:03-cv-01008-MHT -WC Document 159 Filed 05/15/08 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

DAVID LARRY NELSON, Plaintiff,
v. RICHARD ALLEN, et al.,
Defendants.

) ) ) ) ) No. 2:03-cv-1008-MHT-WC ) ) ) )

DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT

The defendants previously filed a motion for summary

judgment, see Doc. 118 (filed Nov. 15, 2006), that was

“denied with leave to renew within 30 days of the Baze

decision.” Doc. 158 (filed Mar. 31, 2008). The United

States Supreme Court recently issued its decision in Baze

v. Rees, __ U.S. __, 128 S.Ct. 1520 (Apr. 16, 2008), ruling

that Kentucky’s lethal injection protocol and States with

substantially similar protocols do not violate the Eighth

Amendment. Id., 128 S.Ct. at 1537. Accordingly, the

defendants renew their previously filed motion for summary

judgment, see Doc. 118, and reincorporate all previously

filed motions for summary dismissal, see Docs. 42, 63, and

118. The defendants state the following regarding the

Supreme Court’s Baze decision.

Case 2:03-cv-01008-MHT -WC Document 159 Filed 05/15/08 Page 2 of 7
By a 7-2 vote, the Supreme Court held that Kentucky’s three-drug lethal injection protocol for executing deathsentenced inmates does not violate the Eighth Amendment’s ban on cruel and unusual punishment. Baze, 128 S.Ct. 1520. Kentucky’s protocol uses three chemicals: sodium thiopental to render the inmate unconscious; pancuronium bromide to cause paralysis and stop breathing; and potassium chloride to cause cardiac arrest. Id., 128 S.Ct. at 1528. Alabama uses the same three chemicals in carrying out executions. See Williams v. Allen, No. 2:07-cv-307-MEF-SRW; 2007 WL 2206846 (M.D. Ala. 2007)(listing chemicals); Arthur v. Allen, No. 07-0722-WS, 2007 WL 4105113 (S.D. Ala. Nov. 15, 2007)(same).
The plurality opinion found that to constitute cruel and unusual punishment under the Eighth Amendment, an inmate must show that a method of execution (1) presents a “substantial” or “objectively intolerable” risk of serious harm, and that (2) the State, for no “legitimate penological justification,” refused to adopt a proffered alternative procedure that is “feasible, readily implemented, and in fact significantly reduce[s]” that risk of severe pain. Id., 128 S.Ct. at 1537-38. Applying that
2

Case 2:03-cv-01008-MHT -WC Document 159 Filed 05/15/08 Page 3 of 7
standard, the plurality noted that “at least” 30 of the 36 States that impose capital punishment use the same threedrug protocol used by Kentucky, which makes “it difficult to regard [the] practice as ‘objectively intolerable.’” Id., 128 S.Ct. at 1532-33. The inmate in Baze conceded that, if the drugs are administered properly, the protocol would be humane and constitutional because the first drug, sodium thiopental, ensures that the inmate would not experience any pain associated with the subsequent injections. Id., 128 S.Ct. at 1530-31. Instead, they argued that there is an unnecessary risk that the sodium thiopental will not be properly administered, which would result in severe suffering once the other chemicals are injected. The plurality opinion rejected this argument, finding that the inmate failed to show that the risk of an inadequate dose is either substantial or objectively intolerable. Id., 128 S.Ct. at 1537-38.
The Supreme Court’s recent decision in Baze applies to Alabama’s execution protocol because it is substantially similar to Kentucky’s. Alabama, like Kentucky, has a three-drug sequence to induce death: (1) a rapid-acting anesthetic (sodium pentothal); (2) a drug inducing muscle
3

Case 2:03-cv-01008-MHT -WC Document 159 Filed 05/15/08 Page 4 of 7
paralysis (pancuronium bromide); and (3) a drug administered to stop the heart (potassium chloride). Arthur, 2007 WL 4105113 at *1. In Baze, the Supreme Court definitively held that Kentucky’s lethal injection protocol does not violate the Eighth Amendment’s prohibition of cruel and unusual punishment. Baze, 128 S.Ct. at 1532-38. The Baze Court, in ruling that “a lethal injection protocol substantially similar to the protocol we uphold today” complies with the Constitution, removed any question as to the constitutionality of Alabama’s lethal injection protocol. Baze, 128 S.Ct. at 1537. It is indeed possible that all nine United States Supreme Court Justices would hold that Alabama’s execution protocol is constitutional. Justice Ginsburg’s dissent in Baze emphasized that Alabama, among several other States, has adopted the safeguard of assessing consciousness after the anesthesia is injected. Baze, 128 S.Ct. at 1571 (quoting that portion of Alabama’s execution protocol). The dissent argued that the lack of a consciousness assessment check in Kentucky’s lethal injection was a constitutional deficiency. Id. Thus, the Baze decision has direct application to Alabama’s execution protocol.
4

Case 2:03-cv-01008-MHT -WC Document 159 Filed 05/15/08 Page 5 of 7

Applying the standard annunciated in Baze, Alabama’s

execution protocol as applied to Nelson is constitutional.1

As this Court remembers, Dr. Bagley, the Court’s

independent medical expert, concluded that Nelson “has

readily accessible peripheral veins” and that access to

“central veins will not be necessary to obtain venous

access on David Larry Nelson.” Doc. 110, Ex. 1, p. 13.

Based on Dr. Bagley’s findings, Nelson’s execution may be

carried out through standard peripheral intravenous access,

using personnel with basic intravenous skills.

As

previously asserted by the defendants, see Doc. 118 at 13,

an emergency medical technician (paramedic level) will gain

intravenous access at Nelson’s execution.2 Under Alabama

law, an EMT-Paramedic is qualified and certified to

administer drugs intravenously. See Doc. 118 at 13 n.6

(citing Ala. Admin. Code R. 420-2-1-.14 (a) and (b)).

Using qualified execution team members does not cause a

“substantial” or “objectively intolerable” risk of serious

1 Any attempt by Nelson to raise a general lethal injection challenge would be barred by the relevant statute of limitations. McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008)(“We hold a method of execution claim accrues on the later of the date on which state review is complete, or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.”). 2 A medical doctor is available in the unlikely event that a central line procedure is required. See Doc. 118 at 13.
5

Case 2:03-cv-01008-MHT -WC Document 159 Filed 05/15/08 Page 6 of 7
harm. Thus, Baze offers additional support to summarily dismiss this case.
CONCLUSION For these reasons and those asserted in Docs. 42, 63, and 118, defendants request this Court to enter an order dismissing Nelson’s second amended complaint, recognizing that it is moot and that no genuine question of material fact or law remains before the Court.
Respectfully submitted, Troy King Attorney General s/ J. Clayton Crenshaw J. Clayton Crenshaw Assistant Attorney General
6

Case 2:03-cv-01008-MHT -WC Document 159 Filed 05/15/08 Page 7 of 7
CERTIFICATE OF SERVICE I hereby certify that on May 15, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: David R. Boyd, Michael Kennedy McIntyre, and H. Victoria Smith.
s/ J. Clayton Crenshaw J. Clayton Crenshaw Assistant Attorney General ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, AL 36130-0152 (334) 242-7423 Office (334) 353-3637 Fax ccrenshaw@ago.state.al.us
7

 
 Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 1 of 17

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

DAVID LARRY NELSON,

}

}

Plaintiff,

}

}

v.

}

}

RICHARD F. ALLEN and

}

GRANTT CULLIVER,

}

}

Defendants.

}

}

____________________________ }

Civil Action No. 2:03cv1008-MHT

PLAINTIFF'S RESPONSE TO THE DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT THEREOF
NOW COMES Plaintiff David Larry Nelson, by and through undersigned counsel, who files this Response to the Defendants’ Renewed Motion for Summary Judgment which was filed on May 15, 2008 and shows the following: I. Introduction.
The Defendants have filed a Renewed Motion for Summary Judgment. The sole basis for the Defendants’ Renewed Motion for Summary Judgment is the Supreme Court’s decision in Baze v. Rees, 553 U. S. ___, 128 S.Ct. 1520 (2008). The Defendants’ Renewed Motion for Summary Judgment must be denied because their reliance upon Baze is misplaced. As will be discussed below, the decision in Baze supports the Plaintiff’s claims and is consistent with the Plaintiff’s contention that his §1983 action

1

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 2 of 17
requires full development of the facts connected with that action.
The Defendants’ Renewed Motion for Summary Judgment must also be denied because genuine issues of material fact exist as to the claims raised in the Plaintiff’s Second Amended Complaint.
Most strikingly, the Defendants in their May 15, 2008 Renewed Motion for Summary judgment state:
As this Court remembers, Dr. Bagley, the Court’s independent medical expert, concluded that Nelson “has readily accessible peripheral veins” and that access to “central veins will not be necessary to obtain venous access on David Larry Nelson.” Doc. 110, Ex. 1, p. 13. Based on Dr. Bagley’s findings, Nelson’s execution may be carried out through standard peripheral intravenous access, using personnel with basic intravenous skills. (Doc. 159 at Page 5, footnotes omitted). The Defendants’ assertion in their Renewed Motion for Summary Judgment is inconsistent with the record in a multitude of ways, including (1) Defendant Culliver’s October 6, 2003 Affidavit, in which Defendant Culliver attests to information which demonstrates that medical personnel under the direction of the Defendants have been unable in the past to find the peripheral venous access sites identified by Dr. Bagley in his report and to cannulate the veins which Dr. Bagley describes as being “easily cannulated by most persons with basic intravenous skills”; (2)
2

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 3 of 17
Dr. Delano Benjamin’s August 23, 2004 “Report on Venous Access for David Larry Nelson Conducted August 23, 2004” in which Dr. Benjamin, who examined the Plaintiff on behalf of the Defendants, reports that he is “unable to offer a definite opinion regarding whether peripheral access will be achievable” during the Plaintiff’s execution and allows for the alternative that if “such attempts are unsuccessful, a central line can be utilized to obtain access”; Dr. Delano Benjamin’s August 23, 2004 and August 26, 2004 notations in the Plaintiff’s medical records in which he respectively states “Pt may need central line for IV access” and “Spoke with Mr. Billingsly from Attorney General’s Office about veinous (sic) access for David Nelson, see above note. Pt. may need central line done for veinous (sic) access”; and (3) the December 10, 2007 report from the Atmore Community Hospital which is part of the Plaintiff’s medical records and which includes such remarks as, “IV access could not be obtained in this patient”; “IV contrast could not be done…”; and “Suboptimal study since no IV contrast could be obtained in this patient…”. Furthermore, the Defendants’ assertion in their Renewed Motion for Summary Judgment is inconsistent with the June 9, 2008 report from the Atmore Community Hospital regarding the recent Magnetic Resonance
3

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 4 of 17
Imaging (MRI) of the Plaintiff’s abdomen, that report explicitly stating, “Unable to get IV access”.1
Additionally, the Plaintiff notes that (1) no discovery has been conducted in the Plaintiff’s case and (2) the Defendants have never filed an answer to the Plaintiff’s initial Complaint, Amended Complaint, or Second Amended Complaint. Precedent from the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit (hereinafter referred to as “the Eleventh Circuit”) clearly dictates that a motion for summary judgment should be considered by a court only after discovery has been conducted and an adequate record has been made. II. The Defendant's Reliance on Baze v. Rees is Misplaced
A. Baze v. Rees Supports the Plaintiff's Claims Baze v. Rees determined whether Kentucky’s protocols for lethal injection violated the Eighth Amendment. Indeed Baze is the first time that the Supreme Court had considered the constitutionality of a method of execution since it upheld the use of the electric chair in In re Kemmler, 136 U.S. 436 (1890). See Denno, Deborah W., "Death Bed," Tri Quarterly Journal, Vol. 124, pp. 141-68, 2006. While upholding Kentucky’s lethal injection procedure, Baze unequivocally holds that the Eighth Amendment is violated when a condemned establishes that his
1 This report is attached hereto as Exhibit 1.
4

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 5 of 17
execution will involve a “substantial risk of serious harm” or an “objectively intolerable risk of harm…” based on how it is to be carried out. 128 S.Ct. at 1531 (plurality opinion). The harm to be avoided is the conscious and needless suffering of pain. 128 S.Ct. at 1537-38 (plurality opinion).
Complainants in Baze contended that Kentucky’s three chemical sequential protocol relying on a barbiturate (sodium thiopental), followed by a paralyzing agent (pancuronium bromide), and concluding with a drug that would induce cardiac arrest (potassium chloride) posed such a risk primarily due to the danger that the barbiturate dose would be too low to effectively sedate the condemned. 128 S.Ct. at 1530. Without adequate sedation, according to the complainants, the induced heart attack would result in unconscionable pain which the paralyzing agent would mask. After weighing evidence produced at “extensive hearings” and considering detailed lower court fact findings, 128 S.Ct. at 1526, 1529, the Supreme Court concluded that complainants’ proof did not make out the risk of harm necessary to show an Eight Amendment violation.
As in Baze, the Plaintiff in the present case contends that his execution would constitute cruel and unusual punishment because it would subject him to an unconstitutional degree of pain. Unlike Baze, the Plaintiff does not maintain that the risk of pain stems from the use of the Alabama’s lethal
5

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 6 of 17
injection protocol per se and the adverse effect of the three chemical mix to cause death. Instead, the Plaintiff asserts that the administration of the protocol to the Plaintiff will result in a substantial and objectively intolerable risk of serious harm due to the Plaintiff’s medical condition and severely compromised peripheral veins. The Plaintiff’s lawsuit hinges on facts which he contends show that, given his condition, intravenous access via the techniques that the Defendants intend to use pose unacceptable risks of pain and injury and that readily available medical procedures other than those contemplated by the Defendants are far less intrusive and involve substantially less risk. As a consequence, unlike Baze, the Plaintiff’s “suit [does] not challenge an execution procedure required by law, so granting relief would not imply the unlawfulness of the lethal injection sentence.” Hill v. McDonough, 547 U.S. 573, 580 (2006), citing and relying on Nelson v. Campbell, 541 U.S. 637, 647 (2004).
B. Baze v. Rees Is Consistent With The Plaintiff's Contention That His §1983 Action Requires Full Development Of The Facts
A majority in Baze rejected any reading of the Eighth Amendment that would require courts to parse out and micro manage execution protocols. 128 S.Ct. at 1537-38. Nonetheless, the Supreme Court was only able to make the judgment it did after considering a fully developed record. The Supreme Court
6

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concluded that the complainants did not make out the requisite risk of pain after a full and complete review of Kentucky’s lethal injection protocol and practice and consideration of the operation of that protocol in light of expert and lay testimony. Thus, the full scope of the procedures Kentucky used to carry out sentences of death was a part of the record before the trial court, the state supreme court, and the Supreme Court of the United States. 128 S.Ct. at 1527-29. The record of proceedings from a seven day full trial was used to establish what chemicals Kentucky would use, the dosages, the sequence of administration, the means of administration, the personnel who would carry out the process, the personnel who would oversee how the process was carried out, the steps that would be taken to make sure that the condemned was not alert or otherwise conscious, the staffing background requirements and training that would be used to ensure that practice conformed to regulations. Back up and emergency contingencies were considered. Lethal injection as designed and practiced was subjected to the scrutiny of an evidentiary trial. Then, and only then, was the Supreme Court in a position to make the judgment that the complainants had not demonstrated the requisite risk of pain.
In contrast to the breadth and substance of the material before the courts in Baze, the Defendants in the present case have sought from the outset to limit access to evidence to the
7

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 8 of 17
Plaintiff that would make it possible to rationally assess the
risks the Plaintiff will face when the Defendants attempt to
execute him. It is only in their renewed motion for summary
judgment that the Defendants are willing to disclose what
chemicals Alabama uses in its lethal injection protocol.
Notably, the disclosure is not based on references to the record
in this case, but to citation references to other cases that are
themselves under protective order. Defendants’ Renewed Motion
for Summary Judgment at 2. Unlike in Baze, the Defendants in
the present case have opposed disclosure of the protocol Alabama
uses to carry out death sentences.2 Indeed, the Defendants have
even impaired the Plaintiff’s access to his own medical records.3
Here, unlike in Baze, the Defendants assert that the Plaintiff
should be denied relief without going through the thorough
2 Notwithstanding its refusal to make the execution protocols a part of the record in this case, in its motion the Defendants make the assertion that for purposes of assessing Baze, “Alabama’s execution protocol . . . is substantially similar to Kentucky’s.” Defendants’ Renewed Motion for Summary Judgment at 3. Surely that is not the sort of conclusion or inference that should be drawn ex parte in any litigation, much less in litigation centered on the constitutional right to be free from cruel and unusual punishment. Whether Alabama’s protocol is similar to the one Kentucky used is a question of fact that can only be determined after Alabama’s protocol is subjected to the give and take of full adversarial process. 3 In fact, the Defendants refused to provide the Plaintiff with his own medical records until ordered to do so by this Court. These records clearly contain information that is relevant to the issues raised in the Plaintiff’s action. For example, for the past two years, the Plaintiff systematically has been evaluated for suspicion of liver cancer, that evaluation including imaging studies being performed at the Atmore Community Hospital. Medical personnel at that hospital on multiple occasions encountered difficulty in their attempts to gain venous access to the Plaintiff and were unable, due to the condition of the Plaintiff’s veins, to administer contrasting dyes to the Plaintiff intravenously for a CAT scan and a MRI. See Exhibits 1 and 3 attached hereto.
8

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 9 of 17
litigation that preceded the Supreme Court’s decision in Baze. The Defendants’ assertion is not consistent with Baze. III. Based Upon The Current State Of The Record, The Defendants’
Renewed Motion For Summary Judgment Should Be Denied Because There Exist Genuine Issues Of Material Facts To Be Tried. Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). An issue is material if it “might affect the outcome of the suit under the governing law.” Id. The Court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. at 257 (1986).
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Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 10 of 17
The Defendants’ Motion for Summary Judgment should be denied because there exist genuine issues of material facts to be tried4, including but not limited to the following:
Issue No. 1: Whether Plaintiff David Nelson’s veins are accessible though the “traditional” procedure, called by the parties “peripheral vein access.” (See Paragraphs 4, 5, 17, and 22 of the Affidavit of Mark Heath, M.D., attached hereto as Exhibit 2, hereinafter, “Exhibit 2: ¶¶ 4, 5, 17, 22; See also the December 10, 2007 report from the Atmore Community Hospital, attached hereto as Exhibit 3 and the June 9, 2008 report from the Atmore Community Hospital, attached hereto as Exhibit 1)5.
Issue No. 2: If Plaintiff’s veins are not accessible through the peripheral vein access procedure, whether a “percutaneous central line procedure” is appropriate. (See Exhibit 2: ¶¶15, 16, 28, 29, 31, 42, 43; Dr. Delano R. Benjamin’s Report on Venous Access for David Larry Nelson Conducted August 23, 2004, Docket Entry No. 34; Medical record of the Plaintiff, attached hereto as Exhibit 46).
4 The first seven genuine issues of material fact were set forth by this Court in its July 28, 2006 Order. 5 Exhibit 3 when provided to the Plaintiff by the Defendants was not certified. The Plaintiff is serving on the Defendants, on this date, a request for admission regarding Exhibit 3. Exhibit 1 will be the subject of a request for admission after it is incorporated into the Plaintiff’s medical records. 6 This medical record, when provided to the Plaintiff by the Defendants, was not certified. The Plaintiff served on the Defendants on December 1, 2006 a request for admission regarding this medical record. The Defendants have never filed a response to said request.
10

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 11 of 17
Issue No. 3: If a percutaneous central line procedure is appropriate, through which of Plaintiff’s veins such access may be obtained, including but not limited to the subclavian vein, the internal jugular vein, the external jugular vein, and the femoral vein, and what advantages and/or complications may accompany the process of access through each type of vein. (See Exhibit 2: ¶30, 31, 32, 33, 34, 52).
Issue No. 4: What protocol(s) will be required for obtaining access to Plaintiff’s veins through the percutaneous central line procedure(s). (See Exhibit 2: ¶35, 36).
Issue No. 5: What facilities and equipment will be required for obtaining access to Plaintiff’s veins through the percutaneous central line procedure(s). (See Exhibit 2: ¶37, 38, 53).
Issue No. 6: What types of professionals and personnel will be required for obtaining access to Plaintiff’s veins through the percutaneous central line procedure(s). (See Exhibit 2: ¶39, 40, 55, 61).
Issue No. 7: Other means, if any, that may exist by which venous access may be gained on Plaintiff, and what protocols, facilities, equipment, professionals, and personnel would generally be required for each. (See Exhibit 2: ¶ 41, 42, 43).
Issue No. 8: Whether the Plaintiff has significantly compromised peripheral access. (See Exhibit 2:¶6).
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Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 12 of 17
Issue No. 9: Whether the peripheral vein in the Plaintiff’s right arm is “easily cannulated by most persons with basic intravenous skills (i.e. emergency medical technicians/paramedics who are so certified, military combat medics, nurses, CRNAs (certified registered nurse anesthetists), PAs (physician’s assistants), and physicians”. (See Exhibit 2: ¶¶7, 8, 9, 11, 12, 17; Warden Culliver’s Affidavit dated October 6, 2003, Docket Entry No. 4; Exhibit 3, the December 10, 2007 report from the Atmore Community Hospital; and Exhibit 1, the June 9, 2008 report from the Atmore Community Hospital).
Issue No. 10: Whether the medical personnel which the Defendants plan to utilize to gain venous access to the Plaintiff are competent to do so. (See Exhibit 2: ¶¶8, 9, 10, 11, 12, 13, 14, 17, 23, 24, 26, 27, 29, 40, 43, 56, 61).
Issue No. 11: Whether fluids that are administered to the Plaintiff intravenously through the peripheral vein will flow properly through the Plaintiff’s veins, particularly through any scarred areas and with rapid pushes of fluid. (See Exhibit 2: ¶¶19, 20, 21, 23).
Issue No. 12: Whether the Defendants’ protocol, including the one paragraph already disclosed to the Plaintiff, describes in any meaningful manner a process for gaining venous access to the Plaintiff. (Exhibit 2: ¶¶44, 45, 46, 47, 48, 49, 62).
12

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 13 of 17
Issue No. 13: Whether the Defendants’ protocol and their
conduct in gaining venous access to the Plaintiff will comport
with evolving standards of decency or will be deliberately
indifferent towards contemporary standards of medical care.
(See Exhibit 2: ¶¶27, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51,
57, 59, 60, 61, 62). IV. The Defendants’ Renewed Motion For Summary Judgment Is
Premature Given The Fact That Discovery Has Not Been Conducted In The Plaintiff’s Case.
Since the Defendants have never filed an answer, to date
discovery has not been conducted in the Plaintiff’s case.
Precedent from the Supreme Court and the Eleventh Circuit
clearly dictates that a motion for summary judgment should be
considered by a court only after discovery has been conducted
and an adequate record has been made.
Specifically, in Celotex Corp. v. Catrett, 477 U.S. 317
(1986), the Court stated:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Id. at 322 (emphasis added). The Court further found that:
The parties had conducted discovery, so no serious claim can be made that respondent was in any sense “railroaded” by a premature motion for summary judgment. Any potential problem with such premature motions can be adequately dealt with under Rule
13

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 14 of 17
56(f), which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery. Id. at 326 (emphasis added). In WSB-TV v. Lee, 842 F.2d 1266 (11th Cir.1988), the Eleventh Circuit reviewed the Supreme Court’s decisions in Celotex Corp., supra., Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corporation, 475 U.S. 574 (1986) and concluded that the “common denominator” of those three cases “is the Court’s caveat that summary judgment may only be decided upon an adequate record”. WSB-TV, 842 F.2d at 1269. The Eleventh Circuit in WSB-TV found that the lower court’s consideration of the motion for summary judgment was erroneous, since “the plaintiffs had been afforded no opportunity for discovery”. Id. Similarly, in Snook v. Trust Company of Georgia Bank of Savannah, N.A., 859 F.2d 865 (11th Cir.1988), the Eleventh Circuit explicitly stated, “This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery.” Id. at 870. Since no discovery has been conducted in the Plaintiff’s case, the record in the Plaintiff’s case is incomplete and the Defendants’ Renewed Motion for Summary Judgment is premature. As
14

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 15 of 17
such, the Defendants’ Renewed Motion for Summary Judgment should be denied at this time by this Court. V. The Defendants’ Renewed Motion For Summary Judgment Is
Premature Given The Fact That The Defendants Have Not Filed An Answer To The Plaintiff’s Second Amended Complaint. The Defendants have never filed an answer to the Plaintiff’s initial Complaint, the Plaintiff’s Amended Complaint, or the Plaintiff’s Second Amended Complaint. As such, the record is incomplete as to the Defendants’ position regarding the claims raised in the Plaintiff’s Second Amended Complaint. Consequently, the Defendants’ Renewed Motion for Summary Judgment is premature and should be denied at this time by this Court. VI. Conclusion For the reasons stated herein, it is respectfully submitted that this Court should deny the Defendants’ Renewed Motion for Summary Judgment. In the alternative, it is respectfully submitted that this Court should postpone ruling on the Defendants’ Renewed Motion for Summary Judgment until the Defendants have filed an answer, the parties have had an adequate opportunity to conduct discovery, and the Plaintiff has had an opportunity to supplement this Response based upon the evidence adduced during discovery. This 21st day of July, 2008.
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Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 16 of 17

965 Virginia Avenue, NE Atlanta, Georgia 30306 Telephone (404) 879-1515
965 Virginia Avenue, NE Atlanta, Georgia 30306 Telephone (404) 879-1515
Suite B 600 Robert Jemison Road Birmingham, Alabama 35209 Telephone (205) 945-8550 Fax No. (205) 945-9005

Respectfully submitted,
/s/ Michael Kennedy McIntyre MICHAEL KENNEDY McINTYRE Georgia Bar No. 494075 Attorney for Plaintiff
/s/ H. Victoria Smith H. VICTORIA SMITH Georgia Bar No. 658605 Attorney for Plaintiff
/s/ Joe W. Morgan, III JOE W. MORGAN, III Alabama Bar No. MOR093 Attorney for Plaintiff

16

Case 2:03-cv-01008-MHT -WC Document 168 Filed 07/21/08 Page 17 of 17 CERTIFICATE OF SERVICE
I hereby certify that on July 21, 2008, I electronically filed the foregoing PLAINTIFF'S RESPONSE TO THE DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT THEREOF with the Clerk of Court using the CM/ECF system which will send notification of such filing to Assistant Attorney General J. Clay Crenshaw.
/s/ Michael Kennedy McIntyre MICHAEL KENNEDY McINTYRE
17

 
 Case 2:03-cv-01008-MHT -WC Document 176 Filed 12/09/09 Page 1 of 1
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DAVID LARRY NELSON, Plaintiff, v.
RICHARD F. ALLEN and GRANTT CULLIVER,
Defendants.

)

)

)

)

)

CIVIL ACTION NO.

)

2:03cv1008-MHT

)

)

)

)

ORDER

Based upon the suggestion of death (Doc. No. 174), it

is ORDERED that the motion for summary judgment (Doc. No.

159) is denied as moot.

DONE, this the 9th day of December, 2009.

/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 2004 WL 419274 (U.S.) (Cite as: 2004 WL 419274)

Page 1

For Opinion See 124 S.Ct. 2117, 124 S.Ct. 1131, 124 S.Ct. 835, 124 S.Ct. 383

U.S.,2004. Supreme Court of the United States. David L. NELSON, Petitioner, v.
Donal CAMPBELL, Commissioner, Alabama Department of Corrections, et al., Respondents. No. 03-6821. March 3, 2004.

On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit

Brief for Respondents

Richard F. AllenActing Attorney GeneralKevin C.

NewsomSolicitor GeneralCounsel of Record* Mi-

chael B. Billingsley Deputy Solicitor GeneralState

of AlabamaOffice of the Attorney General11 South

Union

StreetMontgomery,

Alabama

36130-0152(334) 242-7401Counsel for Respond-

ents

QUESTION PRESENTED

Whether a complaint brought under 42 U.S.C. Sec. 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. Sec. 2254.

West Headnotes

Habeas Corpus 197 666

197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(C) Proceedings 197III(C)1 In General 197k665 Petition or Application 197k666 k. Characterization; Treat-
ment as Habeas Corpus Petition. Most Cited Cases Is a complaint brought under § 1983 by a deathsentenced state prisoner, who seeks to stay his exe-

cution in order to pursue a challenge to the procedures for carrying out the execution, properly recharacterized as a habeas corpus petition under the statute governing applications for habeas corpus in behalf of persons in custody pursuant to state court judgments? 28 U.S.C.A. § 2254; 42 U.S.C.A. § 1983.
*ii TABLE OF CONTENTS
QUESTION PRESENTED ... i
TABLE OF AUTHORITIES ... iv
INTRODUCTION ... 1
STATEMENT OF THE CASE ... 2
A. Nelson's Crimes ... 2
B. Procedural History ... 3
C. The Cut-Down Procedure ... 6
SUMMARY OF ARGUMENT ... 11
ARGUMENT ... 13
I. Nelson Could Not Have Obtained Relief on His Eighth Amendment Claim in a Federal Habeas Corpus Petition. ... 14
A. A Federal Habeas Petition Presenting Nelson's Claim Would Have Been Barred as Successive. ... 14
B. Nelson's Belated Contention That His Claim Should Not Be Considered Successive Is Meritless. ... 17
C. Even If It Were Not Barred as Successive, Nelson's Claim Could Not Have Been Presented in a Federal Habeas Petition. ... 20
II. The Claim Nelson Presents Is Not Cognizable Under Section 1983. ... 22
A. Nelson's Claim Is Not Cognizable Under Section

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2004 WL 419274 (U.S.) (Cite as: 2004 WL 419274)

Page 2

1983 Because It Directly Challenges the Imposition of His Death Sentence. ... 23
*iii 1. Under Preiser v. Rodriguez, a Claim That Challenges a Criminal Sentence Is Not Cognizable Under Section 1983. ... 23
2. By Challenging a Procedure That Is a “Condition Precedent” to the Imposition of His Death Sentence, Nelson Challenges the Sentence Itself. ... 25
B. Nothing in Heck v. Humphrey Suggests a Different Analysis or Result. ... 31
1. Preiser, Not Heck, Defines the Scope of Section 1983 for Suits Seeking Equitable Relief From Criminal Sentences. ... 32
2. Nelson's Suit Would Be Barred Even Under Heck Because It Necessarily Implies the Invalidity of His Death Sentence. ... 34
C. A Decision Permitting Nelson's Section 1983 Suit Would Gut AEDPA's Successive-Petitions Bar. ... 37
III. The Relief Nelson Seeks - A Stay of His Impending Execution - Is Not Available Under Section 1983. ... 39
IV. No Matter How Nelson's Suit Is Characterized, Equitable Considerations Require Its Dismissal. ... 42
V. Nelson Is Not Without a Remedy Here. ... 45
A. Nelson Had - And Still Has - Viable Remedial Options Open to Him. ... 45
B. Nelson Has No Absolute Right To Litigate His Eighth Amendment Claim in a Section 1983 Action. ... 48
CONCLUSION ... 50
*iv TABLE OF AUTHORITIES
CASES
Allen v. McCurry, 449 U.S. 90 (1980) ... 39, 49

Atkins v. Virginia, 533 U.S. 976 (2001) ... 48 Beck v. Rowsey, 124 S. Ct. 980 (2004) ... 26 Beets v. Texas Bd. of Pardons & Paroles, 205 F.3d 192 (5th Cir. 2000) ... 40, 41 Bogan v. Scott-Harris, 523 U.S. 44 (1998) ... 48 Bruce v. Dretke, 124 S. Ct. 1142 (2004) ... 26 Bryan v. Moore, 528 U.S. 960 (1999) ... 48 Buchanan v. Gilmore, 139 F.3d 982 (4th Cir. 1998) ... 24 Calderon v. Thompson, 523 U.S. 538 (1998) ... 20, 37, 41, 43 Duvall v. Keating, 162 F.3d 1058 (10th Cir. 1998) ... 24 Edwards v. Balisok, 520 U.S. 641 (1997) ... 35, 36, 49 Engle v. Isaac, 456 U.S. 107 (1982) ... 43 Estelle v. Gamble, 429 U.S. 97 (1976) ... 21 Ex parte Bradley, No. 85-424 (July 13, 2001) ... 47 Ex parte Bradley, No. 85-424 (Oct. 5, 2001) ... 46 Ex parte Grayson, No. 1830756 (May 22, 2003) ... 46 Ex parte Hubbard, No. 1780688 (Jan. 22, 2004) ... 46 Ex parte Nelson, No. 1860528 (Apr. 17, 2003) ... 46 Ex parte Royall, 117 U.S. 241 (1886) ... 49 Farmer v. Brennan, 511 U.S. 825 (1994) ... 21 Felker v. Turpin, 518 U.S. 651 (1996) ... 20, 45 Ford v. Wainwright, 477 U.S. 399 (1986) ... 17, 18 *v Fugate v. Department of Corr., 301 F.3d 1287

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2004 WL 419274 (U.S.) (Cite as: 2004 WL 419274)

Page 3

(11th Cir. 2002) ... 24
Geo. Walter Brewing Co. v. Henseleit, 132 N.W. 631 (Wis. 1911) ... 41
Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932 (11th Cir. 2001) ... 40
Gomez v. United States District Court, 503 U.S. 653 (1992) ... passim
Heck v. Humphrey, 512 U.S. 477 (1994) ... passim
Herrera v. Collins, 506 U.S. 390 (1993) ... 43
Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997) ... 29
Huffman v. Pursue, 420 U.S. 592 (1975) ... 49
In re Blodgett, 502 U.S. 236 (1992) ... 43
In re Nelson, 124 S. Ct. 583 (2003) ... 45
In re Sapp, 118 F.3d 460 (6th Cir. 1997) ... 24, 29, 40
In re Tarver, 528 U.S. 1146 (2000) ... 47
Lonchar v. Thomas, 517 U.S. 314 (1996) ... passim
Louisiana v. Resweber, 329 U.S. 459 (1947) ... 21
Martinez v. Texas Court of Criminal Appeals, 292 F.3d 417 (5th Cir. 2002) ... 24, 40
Martinez-Villareal v. Stewart, 118 F.3d 628 (9th Cir. 1997) ... 18
McCleskey v. Zant, 499 U.S. 467 (1991) ... 19, 42
Migra v. Warren City Sch. Dist., 465 U.S. 75 (1984) ... 48
Muhammad v. Close, No. 02-9065, 2004 WL 344163 (Feb. 25, 2004) ... 32
Nelson v. Alabama, 292 F.3d 1291 (11th Cir. 2002) ... 3
*vi Nelson v. Alabama, 538 U.S. 926 (2003) ... 1, 4

Nelson v. State, 511 So. 2d 225 (Ala. Crim. App. 1986) ... 2, 3 Preiser v. Rodriguez, 411 U.S. 475 (1973) ... passim Robinson v. Crosby, 124 S. Ct. 1196 (2004) ... 25, 30 Roe v. Taft, 124 S. Ct. 1196 (2004) ... 26 Roper v. Simmons, 124 S. Ct. 1171 (2004) ... 48 Sawyer v. Whitley, 505 U.S. 333 (1992) ... 43 Schlup v. Delo, 513 U.S. 298 (1995) ... 20 Slack v. McDaniel, 529 U.S. 473 (2000) ... 18, 19 Spencer v. Kemna, 523 U.S. 1 (1998) ... 23, 39 Spivey v. Board of Pardons & Paroles, 279 F.3d 1301 (11th Cir. 2002) ... 22 Steffel v. Thompson, 415 U.S. 452 (1974) ... 49 Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) ... 17, 18 Stone v. Powell, 428 U.S. 465 (1976) ... 49 Teague v. Lane, 489 U.S. 288 (1989) ... 11, 21 Trop v. Dulles, 356 U.S. 86 (1958) ... 21 Ward v. Darks, 124 S. Ct. 1142 (2004) ... 26 Williams v. Hopkins, 130 F.3d 333 (8th Cir. 1997) ... 24 Williams v. Taft, 124 S. Ct. 1142 (2004) ... 26 Williams v. Taylor, 529 U.S. 362 (2000) ... 14 Williams v. Taylor, 529 U.S. 420 (2000) ... 14 Wilson v. Garcia, 471 U.S. 261 (1985) ... 48 Wilson v. United States District Court, 161 F.3d 1185 (9th Cir. 1998) ... 24 *vii Woodford v. Garceau, 538 U.S. 202 (2003) ...

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2004 WL 419274 (U.S.) (Cite as: 2004 WL 419274)

Page 4

14, 37 Young v. Hayes, 218 F.3d 850 (8th Cir. 2000) ... 24 Zimmerman v. Johnson, 124 S. Ct. 1168 (2004) ... 26 Zimmerman v. Johnson, 124 S. Ct. 979 (2003) ... 26 STATUTES 28 U.S.C. § 1257 ... 46, 47, 48 28 U.S.C. § 2244(b)(1) ... 15, 37 28 U.S.C. § 2244(b)(2) ... passim 28 U.S.C. § 2254 ... i, 6, 27 28 U.S.C. § 2254(b) ... 11 28 U.S.C. § 2254(c) ... 20 42 U.S.C. § 1983 ... passim Ala. Code § 15-18-82.1 ... 4, 28, 41 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ... passim RULES Ala. R. App. P. 27 ... 46 Ala. R. Crim. P. 32.1 ... 45 11th Cir. R. 27, I.O.P. 3 ... 42 OTHER AUTHORITIES H.R. Conf. Rep. No. 104-518 (1996) ... 14 Statement on Signing the Antiterrorism and Effective Death Penalty Act of 1996, 32 Weekly Comp. Pres. Doc. 719 (Apr. 24, 1996) ... 15 142 Cong. Rec. S3362 (Apr. 16, 1996) ... 40 142 Cong. Rec. S3465 (Apr. 17, 1996) ... 14 *viii S. Dronen & P. Lanter, Venous Cutdown, in

Clinical Procedures in Emergency Medicine (J. Roberts & J. Hedges eds., 3d ed. 1998) ... 7
H. Hart & H. Wechsler, The Federal Courts and the Federal System (R. Fallon, et al., eds., 4th ed. 1996 & 2002 Supp.) ... 16, 19, 21
R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure (4th ed. 2001) ... 16, 19
The Merck Manual of Diagnosis and Therapy (17th ed. 1999) ... 7
B. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699 (2002) ... passim
Venous Cut Down: A Quicker and Safer Technique, The Royal College of Surgeons, www.edu.rcsed.ac.uk/operations/op4.htm ... 7, 8
*1 INTRODUCTION
Triple murderer David Larry Nelson has been on Alabama's death row for more than 20 years. On March 24, 2003, after his case had made three full trips through the state-court system and another two through the federal system, this Court denied Nelson's petition for a writ of certiorari from the denial of his federal habeas corpus petition. Nelson v. Alabama, 538 U.S. 926 (2003). Given that Congress has, subject to two narrow exceptions that Nelson has conceded do not apply here (App. 69-70), expressly prohibited inmates from filing “second or successive” federal habeas petitions, 28 U.S.C. § 2244(b)(2), this Court's order denying certiorari seemingly brought to an end Nelson's repeated attacks on his conviction and sentence.
Then, on October 6, 2003, just three days before his scheduled execution, Nelson, ostensibly proceeding under 42 U.S.C. § 1983, filed a pleading styled a “Complaint for Injunctive and Declaratory Relief.” In that “Complaint,” Nelson, a long-time IV drug abuser with “compromised veins,” alleged that the use of a “cut-down” procedure to administer his execution by lethal injection would violate the Eighth Amendment and, on that basis, sought “an order

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granting injunctive relief and staying [his] execution.” App. 22. The lower courts saw Nelson's nominal § 1983 complaint for what it is - a transparent, last-minute effort to derail his execution and to circumvent Congress' considered judgment effectively barring successive habeas corpus petitions - and dismissed it as “the ‘functional equivalent’ of a second habeas petition.” App. 121.
Nelson's argument in this Court essentially proceeds as if neither the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)[FN1] nor this Court's decisions in Preiser v. Rodriguez, 411 U.S. 475 (1973), and Gomez v. United States District Court, 503 U.S. 653 (1992), ever happened. The lower *2 courts rightly rejected Nelson's manipulative end-run. The Eleventh Circuit's judgment should be affirmed, and the stay of execution lifted.
FN1. Pub. L. No. 104-132, 110 Stat. 1214 (1996).
STATEMENT OF THE CASE
A. Nelson's Crimes
On New Year's Eve 1977, Nelson and his girlfriend, Linda Vice, met James Dewey Cash, a cab driver, at the Red Dog Saloon in Birmingham. Nelson v. State, 511 So. 2d 225, 232 (Ala. Crim. App. 1986). “Cash was going to a party, and he asked [Nelson] and Vice if they wanted to go with him. They agreed, and the three of them left in Cash's taxicab, with Cash driving.” Id. “After driving a few blocks, … [Nelson] pulled out [a] pistol and told Cash to hand over his money.” Id. When Nelson tried to rob Cash of his watch, “Cash grabbed the barrel of the pistol and [Nelson] started firing.” Id. at 233. “[O]ne bullet hit Cash in the chest, one hit him in the head, and one hit the window.” Id. Vice and Nelson fled, leaving Cash's body at the scene. Id.
Having killed Cash, Nelson went with Vice to another bar where they met Wilson W. Thompson. Id. at 229. Nelson introduced Vice to Thompson as his sister and told Thompson that he and Vice had no way home. Id. “Thompson and Nelson discussed going to Thompson's mobile home in Kimberly,

[Alabama,] which was twenty to thirty miles from Birmingham, and having an ‘orgy.’ ” Id. The three left the bar in Thompson's car and headed for Thompson's home. Id.
When they arrived, “Thompson fixed everyone a drink.” Id. Then, “[a]fter some further discussion of orgies, Nelson ordered Vice to remove her clothes.” Id. When Vice expressed reluctance, Nelson took her into the bedroom, where he again demanded that she “take something off.” Id. As she removed her blouse, Thompson, who was now nude, entered the room and told Vice to take off the rest of her clothing. Id. She did so and then, at Nelson's direction, lay down on the bed. Id. “Nelson then told Thompson he could *3 have oral sex with Vice. Just as Thompson commenced performing oral sex on Vice, Nelson shot him in the back of the neck at close range with [a] .38 caliber pistol.” Id.
“The bullet apparently passed through Thompson's neck and wounded Vice in the upper part of her leg.” Id. When Vice started screaming, Nelson shot her twice more; “one bullet wound[ed] her in the wrist and the other graz[ed] the back of her head.” Id. Nelson then pistol-whipped Thompson in the back of the head and proceeded to “ransack[]” the mobile home. Id. “Nelson returned to the bedroom and, upon finding Vice alive, displayed his penis and tried to get Vice to perform oral sex upon him.” Id. When she refused, “telling him that she was dying and he was not going to make her do anything else,” Nelson “threw a blanket over her and walked out.” Id.
Fortunately, Vice survived Nelson's attack. Thompson, whose nude body police discovered lying face down on the bed, was not so lucky. “When the bullet passed through [Thompson's] neck, it caused major damage to the spinal cord, terminating the function of all vital organs below the neck and causing death to quickly follow.” Id. at 230.
B. Procedural History
The procedural history culminating in Nelson's lastminute stay request is tortured and, for the most part, irrelevant to the resolution of this case. Sever-

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al aspects of that history are pertinent, however. First, it was Thompson's murder - the third of Nelson's three murders - for which Nelson received the death sentence at issue here. (Nelson was convicted and sentenced to life imprisonment for Cash's murder; before that, Nelson had pled guilty to the unrelated murder of Oliver King. Id. at 228 & n.1.) Second, as a result of two court-ordered resentencing proceedings, Nelson was for the Thompson murder alone sentenced to death three separate times by three different Alabama juries. Id. at 228; Nelson v. Alabama, 292 F.3d 1291, 1294 (11th Cir. 2002). Finally, and most importantly for present purposes, Nelson has filed and litigated to conclusion a federal habeas *4 corpus petition challenging his current death sentence. The district court denied Nelson's petition, the Eleventh Circuit affirmed, see id., and on March 24, 2003, this Court denied certiorari, Nelson v. Alabama, 538 U.S. 926 (2003) which brings us to the current proceeding.
As a preface, it should be noted that on July 1, 2002 - shortly after the Eleventh Circuit had affirmed the denial of habeas relief - the Alabama Legislature changed the State's method of execution from electrocution to lethal injection. Ala. Code § 15-18-82.1. In doing so, the Legislature provided every death-row inmate “one opportunity” to choose electrocution over lethal injection. Id. § 15-18-82.1(a), (b). Nelson waived the electrocution option by failing to exercise it timely. Id.
Following this Court's March 24, 2003, denial of certiorari on Nelson's habeas petition, the State on April 4, 2003, moved the Alabama Supreme Court to set Nelson's execution date. Shortly thereafter, counsel for the State received a letter from Nelson stating that his attorneys would not respond to the motion or “seek a stay of execution [on his] behalf.” App. 89. Nelson requested that all possible steps be taken to ensure that an execution date was set expeditiously. Id. On September 3, the Alabama Supreme Court set Nelson's execution for October 9, 2003.
In the meantime, on August 19, 2003 - more than two weeks before the Alabama Supreme Court is-

sued its order setting Nelson's execution and nearly two months before the scheduled execution date itself - counsel for Nelson wrote to Warden Culliver to explain that “Mr. Nelson has great concerns about the lethal injection procedure due to the fact that he has severely compromised veins” as a result of years of illegal drug abuse. App. 25. Specifically, counsel referred to the possibility that a “ ‘cutdown’ procedure” might be used to carry out Nelson's lethal injection. App. 26.
In response to the August 19 letter, state medical personnel examined Nelson's veins. App. 93. On discovering that locating a vein in Nelson's lower arms might be problematic, Warden Culliver found a doctor who *5 could attach a direct IV line to a vein in another part of Nelson's body. App. 93-94. Specifically, the State's doctor proposed first “to attempt to connect a direct intravenous line to the femoral vein located in [Nelson's] thigh” and, failing that, to a vein in his neck. App. 93. A cut-down was “the last procedure” the doctor proposed to attempt, and only then if it “bec[a]me necessary.” Id.
Although the August 19 letter shows that Nelson was aware of the bases for his Eighth Amendment claim at least seven weeks before his scheduled execution, Nelson waited until the afternoon of October 6, 2003 - three days before the execution date to file his § 1983 complaint. App. 39. The next day, after conducting a conference call with counsel and receiving the parties' briefs, the district court dismissed Nelson's suit. App. 105. The district court determined that because Nelson's complaint “challenge[d] procedures closely related to his execution and s[ought] a stay of execution,” it was the “functional equivalent” of a habeas corpus petition and, therefore, was subject “to the limits imposed on successive petitions in 28 U.S.C.A. § 2244.” App. 110. The court held that “[b]ecause Nelson did not first apply to [the Eleventh Circuit] for approval to file a second habeas petition, [it] did not have jurisdiction to hear his claim.” App. 112.
The Eleventh Circuit affirmed in a 2-1 decision. In likewise holding Nelson's complaint to be the “functional equivalent” of a successive habeas peti-

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tion, the court of appeals emphasized that the complaint sought “an immediate stay to the imposition of [his] death sentence.” App. 121. “Nelson's prayer to stay his execution,” the court observed, “directly impedes the implementation of the state sentence, and is indicative of an effort to accomplish via § 1983 that which cannot be accomplished by a successive petition for habeas corpus.” App. 122-23 n. 4.
Nelson petitioned this Court for certiorari on two questions: first, as a procedural matter, whether the Eleventh Circuit erred in dismissing his § 1983 complaint as the “functional equivalent” of a successive habeas corpus *6 petition; and second, as a substantive matter, whether the use of a cut-down procedure as a means of administering an execution by lethal injection would violate the Eighth Amendment. Pet. i. This Court stayed Nelson's execution and subsequently granted Nelson's petition for certiorari, limited to the first question presented, which the Court reformulated as follows: “Whether a complaint brought under 42 U.S.C. Sec. 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. Sec. 2254?” App. 132-33.
C. The Cut-Down Procedure
Before turning to the Question Presented, it is necessary to clear away some underbrush. As noted, this Court did not grant certiorari on the substantive question whether the use of a cut-down as a means of administering a lethal injection would violate the Eighth Amendment. Rather, the Court agreed to review only the procedural question whether § 1983 is an appropriate vehicle for Nelson's challenge. Accordingly, Nelson's dramatic descriptions of the cut-down procedure - as well as the lone amicus brief filed on his behalf, which addresses itself exclusively to the medical pros and cons of cut-downs - are irrelevant to this case. Nonetheless, because Nelson has misrepresented both (i) the specifics of the cut-down procedure itself and (ii) the likelihood that a cut-down will actually come to pass in his ex-

ecution, a brief clarification of the record is in order.
1. For starters, to read Nelson's pleadings in this case, the challenged cut-down procedure is “barbaric” (App. 13; Pet. 16, 20, 33; Pet. Br. 31), “invasive” (App. 13; Pet. 16, 22, 23; Pet. Br. 30), “inhumane” (Pet. 22), “risky” (Pet. 22), and, with his emphasis, “exceptionally suspect” (Pet. 11). A cut-down, Nelson says, will entail the “mutilation” of his body (App. 13; Pet. 5; Pet. Reply 2, 3, 4, 5, 7, 8), involve “unnecessary pain and suffering” (App. 13; Pet. 16, 23), and risk “life-threatening” complications including “severe *7 hemorrhage,” “cardiovascular collapse,” “shock,” and “terror” (Pet. 17). Indicative of Nelson's own hyperbole, Nelson's expert goes so far as to suggest that during any cut-down procedure, “smoke will rise from the area of incision” and “the room will smell of burning tissue, flesh, and blood.” App. 32.[FN2]
FN2. Our research indicates that in the last year alone, Nelson's expert, Dr. Heath, has testified in support of at least nine inmates challenging various aspects of seven different States' lethal-injection procedures.
Nelson's gory description of the cut-down procedure finds scant support in objective evidence. The scientific fact, as recognized by the sources on which Nelson's own amici principally rely, is that a venous cut-down is “a time-honored, simple surgical technique” and “an excellent method of obtaining venous access in several emergent clinical situations,” S. Dronen & P. Lanter, Venous Cutdown, in Clinical Procedures in Emergency Medicine 341-42, 350 (J. Roberts & J. Hedges eds., 3d ed. 1998), and, further, “an effective option for venous access … when peripheral cannulation becomes difficult or impossible,” Venous Cut Down: A Quicker and Safer Technique, The Royal College of Surgeons, www.edu.rcsed.ac.uk/operations/op4.htm. As the State's affiants have testified (App. 91, 93), a cut-down procedure entails only “a small skin incision, after which a venectomy is made and a wide-bore plastic catheter is inserted into the vein and secured with sutures.” The Merck Manual of

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Diagnosis and Therapy 1621 (17th ed. 1999). A cut-down typically takes “5 to 6 minutes to complete,” requires only local anesthetic, and involves “minimal” bleeding. See Dronen & Lanter, supra, at 342, 345. As with any surgical procedure, “common complications” may arise, but they “can be reduced by catheter removal as soon as possible or frequent catheter replacement.” Merck Manual, supra, at 1621. In any event, the sources cited by Nelson's own amici indicate that the complications that may attend a cut-down are no more serious than those associated with Nelson's *8 preferred method of central venous access. See Royal College of Surgeons, supra.
Nelson's blood-and-guts portrayal also ignores that cut-downs are not reserved for use in executions; rather, as Nelson's amici's source confirms, “[v]enous cut down is an emergency procedure that is potentially life saving.” Id. (emphasis added); see also Br. for Sen. Orrin G. Hatch, et al., as Amici Curiae at 6-7 (hereinafter “Hatch Br.”) (cut-down used on “newborn infants” and “trauma patients”). A cut-down is no more “barbaric” in the present context than it would be in the event that Nelson or for that matter, any patient in a public hospital required a life-saving medical procedure and venous access could not otherwise be obtained. The cut-down procedure itself - which Nelson repeatedly insists is all he is challenging (see infra at 25) - is precisely the same in both circumstances.
2. Even more significant for present purposes than Nelson's misleading description of the cut-down procedure is his mischaracterization of the probability that a cut-down will even occur as part of his execution. From Nelson's pleadings, one would surmise that the State “in fact does intend to perform” a cut-down as a predicate to his execution. App. 13; accord App. 11; Pet. 15, 20, 35; Pet. Reply 6. Indeed, Nelson went so far in the lower courts to as to feature on the covers of his briefs a banner reading: “Cut-down procedure expected to begin at approximately 4:00 p.m. central time.” In this Court, Nelson continues to assert that the State is “adamant that [it] intends to implement an inhumane method for gaining venous access” (Pet. 22), that the State

“insist[s] … upon [its] chosen ‘cut-down’ technique for acquiring venous access” (Pet. Br. 35), and, further, that the State “will perform [a] cut-down procedure on [him] prior to his execution” (Pet. 24). In opposition to what he describes as the State's certain “barbari[sm],” Nelson proposes - seemingly reasonably - an “alternative procedure,” called percutaneous central line placement, which he claims is “superior to the cut-down procedure in virtually all regards.” App. 17; Pet. 20.
*9 Contrary to Nelson's mischaracterizations, the record makes clear that it is highly “unlikely that [a cut-down] procedure will even become necessary” in Nelson's case. Br. in Opp. 2. Rather, as the Eleventh Circuit summarized: Alabama first proposes to gain venous access through a femoral vein in Nelson's thigh and if unsuccessful through the external carotid artery in Nelson's neck, neither of which procedure Nelson challenges. It is only if venous access cannot be readily gained in those two areas that Alabama proposes to use the third alternative of the “cut-down” procedure.
App. 120 n.3.
The State has consistently maintained that a cutdown “will only be considered as a last resort” i.e., only if the doctor responsible for connecting the intravenous line to Nelson is unable to obtain venous access through more conventional techniques. Br. in Opp. 2; see also id. at 22-23 (“[T]he sole basis for Nelson's eleventh hour claim, the ‘cut-down’ procedure, will most likely not even be utilized.”); Supp. Br. in Opp. 7-8 n.3 (“last resort”). The record is clear on this point. In their affidavits, both Warden Culliver and Dr. Sonnier described the cut-down procedure as being the third of three options - one that will be utilized only if options one (a central line in the thigh) and two (a central line in the neck) fail and a cut-down becomes truly “necessary.” App. 91, 93.
Thus, what the record in this case reveals is not that a cut-down is inevitable (or even likely) but, to the contrary, that the parties agree that conventional IV

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methods are preferable to the cut-down procedure and should be attempted before resorting to a cutdown. Compare App. 37-38 (Heath) with App. 90-91 (Sonnier) and App. 93-94 (Culliver). On the understanding that Nelson's years of illegal IV drug abuse have foreclosed the possibility of a simple, superficial needle stick in the lower arm, the State has proposed first to seek venous access by “attach[ing] the *10 IV to the femoral vein located in the upper thigh.” App. 90. Nelson's expert apparently concurs in that approach. After reviewing the Sonnier and Culliver affidavits describing the State's plans, Dr. Heath testified that given Nelson's history of illegal IV drug abuse and the apparent absence of peripheral veins in Nelson's arms, it is “highly likely” that the State will be required to “place a central line” into a deep vein such as “the femoral vein (in the groin) ….” App. 98.[FN3]
FN3. Nelson makes much (Pet. Br. 9-10) of a mistaken reference in Dr. Sonnier's affidavit to the “external carotid vein located in the neck.” Notably, however, Nelson's own expert, Dr. Heath, readily recognized that Dr. Sonnier meant to refer to the “external jugular vein,” which Heath acknowledged to be a “commonly-used structure for obtaining intravenous access if peripheral access cannot be secured.” App. 99. Contrary to Nelson's suggestion, all Dr. Sonnier's mistake proves is that his affidavit was hastily prepared - a circumstance that is wholly the result of Nelson's own eleventh-hour filing. Indeed, even Dr. Heath - who regularly testifies on behalf of condemned inmates (see supra at 7 n.2) arguably misstepped in executing his affidavit. Heath testified that a cut-down which (at least as envisioned here) is used to administer IV drugs where standard IV techniques will not work - should typically be “performed under deep sedation that includes the administration of potent intravenous analgesics ….” App. 32 (emphasis added). It is not immediately apparent how one would administer “intravenous anal-

gesics” as a means of sedating a cut-down patient given that the sole reason for employing a cut-down is that conventional intravenous access is impossible. Conspicuously, Nelson's brief to this Court ellipsizes the “intravenous analgesics” portion of Dr. Heath's statement. See Pet. Br. 10.
Thus, to be clear, all agree that conventional IV methods - initially, a central line placement in the femoral vein - are preferable to and should be attempted before the cut-down procedure. And there is no particular reason to believe that conventional venous access through the femoral vein in the thigh (or failing that, the neck) will not succeed; the record indicates only that Nelson does “not have any veins in his lower arms and hands sufficient to support a direct intravenous line.” Pet. Br. 6 n.4 (quoting App. 93) (emphasis added). A cut-down will be implemented only “as a last resort” in the unlikely event that conventional IV techniques do not provide venous access.
SUMMARY OF ARGUMENT
By his own admission, Nelson filed his eleventhhour stay request in the guise of a § 1983 complaint for only one reason: not because § 1983 is the appropriate vehicle for his challenge but, rather, because he “ascertained” that binding law “foreclosed any access to habeas corpus relief.” Nelson's suit is an end-run, plain and simple.
1. Several explicit restrictions on habeas corpus practice would have precluded Nelson from attacking the imposition of his death sentence in a habeas petition. Most obviously, having already fully litigated one habeas challenge to his death sentence, any effort by Nelson to obtain habeas relief would have run squarely into AEDPA's virtual bar on successive petitions. As relevant here, the only exception to that bar permits a successive petition raising a new claim that both (i) depends on a “factual predicate” that could not have been discovered earlier and (ii) implicates the inmate's actual, factual innocence. 28 U.S.C. § 2244(b)(2). As Nelson's lawyers have acknowledged that Nelson's claim “does not

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have anything to do with factual innocence,” AEDPA's bar expressly applies and prohibits Nelson from pursuing habeas relief. In any event, even aside from AEDPA's successive-petitions bar, any habeas petition filed by Nelson would have been dismissed for failure to exhaust, 28 U.S.C. § 2254(b), and as barred by Teague v. Lane, 489 U.S. 288 (1989).
2a-b. Nelson cannot skirt Congress' specific limitations on habeas relief by what this Court has called “the simple expedient of putting a different label on [his] pleadings.” Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973). Section 1983 simply is not an appropriate vehicle for Nelson's Eighth Amendment claim. Preiser, which deals expressly with actions, like Nelson's, seeking injunctive relief from state convictions or sentences, makes clear that an inmate may not “challeng[e]” or “attack” his sentence in a § 1983 action. Given that (i) obtaining venous access is, in Nelson's own words, a “condition precedent” to his execution, and (ii) the cut-down procedure that Nelson challenges will be utilized only if other means of venous access fail and a cut-down becomes truly “necessary,” it is clear that Nelson's challenge to the use of a cut-down constitutes a forbidden “challeng[e]” to the imposition of his sentence within the meaning of Preiser. For the same reasons, even if the governing precedent here were not Preiser but, instead, Heck v. Humphrey, 512 U.S. 477 (1994) - which dealt specifically with § 1983 damages actions - Nelson's suit would be barred because in every real and meaningful sense Nelson's challenge to the use of a cut-down “necessarily impl[ies] the invalidity of his … sentence.” Id. at 487.
2c. In seeking habeas-like relief from the imposition of his death-sentence in what is nominally a § 1983 complaint, Nelson is effectively asking this Court to engraft a new exception onto AEDPA's successive-petitions bar. Nelson's suit is completely unmoored from - and, indeed, would gut - AEDPA's plain language and manifest purpose.
3. Even assuming that Nelson's claim itself does not take his suit outside § 1983's ambit, the specific re-

lief he seeks - a stay of his impending execution does so. Because a request for a stay of execution entails a federal interference with state penal interests at least as grave - if not more so - than the request for speedier release at issue in Preiser, federal courts may not stay impending executions under § 1983. Nelson had ample time in which to litigate his challenge to the possible use of a cutdown without seeking a stay. Instead of promptly pursuing his claim, he waited until the last minute to spring his challenge on the State and the courts. Nelson's sandbagging should not be rewarded.
4. Wholly apart from the question whether Nelson's claim and requested relief are cognizable under § 1983, equitable considerations require dismissal. Under Gomez v. United States District Court, 503 U.S. 653 (1992), “[w]hether [Nelson's] claim was framed as a habeas petition or a § 1983 action,” his suit should be dismissed because (i) a quarter century after Nelson's crime, the State has a “strong interest in proceeding with its judgment”; (ii) there is “no good reason for [Nelson's] abusive delay” in filing; and (iii) by waiting until the eleventh hour Nelson has plainly engaged in “last-minute attempts to manipulate the judicial process.” Id. at 654.
5. Nelson's assertion that if not allowed to proceed under § 1983 he will be without “any remedy” is misleading and factually inaccurate. Nelson had and still has - multiple viable remedies open to him, including at least one in this Court directly (an original writ), and several more in state court with subsequent § 1257 review in this Court. To the extent that Nelson's contention is that he has an absolute right to litigate his claim in a lower federal court, this Court has squarely - and repeatedly - rejected it.
ARGUMENT
There is a simple - and transparent - explanation for Nelson's decision to file his last-minute stay request in a § 1983 complaint rather than a habeas corpus petition. That explanation is not that § 1983 is the more appropriate vehicle for Nelson's Eighth

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Amendment challenge. Rather, as Nelson concedes in his brief, he filed a § 1983 action because he “ascertained” that binding law “foreclosed any access to habeas corpus relief.” Pet. Br. 29. Nelson's suit, therefore, is nothing more and nothing less than “an effort to accomplish via § 1983 what cannot be accomplished by a successive petition for habeas corpus.” App. 123 n.4. Nelson's suit, by his own admission, is an end-run.
This Court has never suggested that § 1983 exists to fill perceived “gaps” in the habeas statute's remedial scheme. Rather, habeas corpus and § 1983 are distinct remedies that address distinct situations. This Court's decisions uniformly differentiate habeas petitions from § 1983 complaints on the substantive bases of (i) the claims raised and (ii) the relief sought. Some claims and forms of relief are exclusively the province of habeas; others are appropriately the subject of § 1983. Nelson nowhere contends that the claim he raises and the relief he seeks are inappropriate to habeas, and he only glancingly suggests that his claim and requested relief are truly appropriate to § 1983. Nelson's principal position, *14 instead, is that because habeas corpus does not provide him relief, § 1983 must. That is not the law. A nonactionable habeas claim does not, simply by virtue of its nonactionability, become a § 1983 claim.
I. Nelson Could Not Have Obtained Relief on His Eighth Amendment Claim in a Federal Habeas Cor-
pus Petition.
Nelson, by his own admission, filed under § 1983 not because it is an appropriate vehicle for the claim he raises or the relief he seeks - it is not - but rather because Congress and this Court have on multiple bases clearly foreclosed habeas corpus relief to inmates in Nelson's position.
A. A Federal Habeas Petition Presenting Nelson's Claim Would Have Been Barred as Successive.
Having already litigated one habeas corpus petition challenging his death sentence, the first and most obvious impediment to habeas relief that Nelson faced was AEDPA's virtual ban on “second or suc-

cessive habeas corpus application[s],” 28 U.S.C. § 2244(b). As this Court observed just last Term, “Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases.” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (citing Williams v. Taylor, 529 U.S. 362, 386 (2000) (Stevens, J.), 404 (O'Connor, J., for the Court), and Williams v. Taylor, 529 U.S. 420, 436 (2000)) (emphasis added). Specifically, Congress sought “to curb the abuse of the statutory writ of habeas corpus” and, thereby, to “address the acute problems of unnecessary delay and abuse in capital cases.” H.R. Conf. Rep. No. 104-518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 944; accord 142 Cong. Rec. S3465 (Apr. 17, 1996) (Sen. Warner) (purpose to stop “the charade of habeas corpus appeals” and to preclude “death row inmates [from] drag[ging] out their appeals for several decades”). In signing AEDPA, President Clinton lamented that “[f]or too long, and in too many cases, endless death row appeals have stood in the way of justice being served.” Statement on Signing the Antiterrorism and Effective Death *15 Penalty Act of 1996, 32 Weekly Comp. Pres. Doc. 719, 720 (Apr. 24, 1996). The point of AEDPA, the President emphasized, was to “streamline Federal appeals for convicted criminals sentenced to the death penalty.” Id.
One of the principal means by which Congress sought to “streamline” the appeals process was by severely restricting inmates' ability to file “second or successive” habeas petitions. 28 U.S.C. § 2244(b). Section 2244(b)(1) requires dismissal, without exception, of any claim raised in a second or successive petition that “was presented in a prior application.” With respect to so-called “new claim” petitions - second or successive petitions raising claims, like Nelson's Eighth Amendment claim here, that were “not presented in a previous application” - § 2244(b)(2) requires dismissal save in two narrow circumstances. Specifically, Congress determined that an inmate may file a new-claim successive petition only: • where the claim “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously

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unavailable” (§ 2244(b)(2)(A)); or • where both (i) the “factual predicate for the claim could not have been discovered previously through the exercise of due diligence” and (ii) the facts underlying the claim establish by clear and convincing evidence that the prisoner is actually, factually innocent “of the underlying offense” (§ 2244(b)(2)(B)).
One of Nelson's own lawyers, Mr. Stevenson, has in his academic writings accurately described the changes wrought by AEDPA's stringent successivepetitions bar. “As a general matter” in the preAEDPA days, “any type of claim that was unavailable at the time of the earlier filing - because the legal or factual basis for that claim did not exist or was not reasonably knowable by the prisoner - was an appropriate candidate for inclusion in a successive petition.” B. Stevenson, The *16Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 736 (2002). “AEDPA's successive petition standard,” Stevenson explains, “appears to incorporate this general approach, but with one major difference.” Id. at 737. Specifically, and as particularly relevant here, “Subsection 2244(b)(2)(B)(ii) sharply diverges from the prior law … by modifying the ‘new facts' category to include an additional requirement that the prisoner make a showing of ‘innocence.’ ” Id. at 737-38.[FN4] Stevenson goes on to explain (again correctly) that § 2244(b)(2)(B)(ii)'s standard “is not elastic enough to include certain capital punishment claims” - like Nelson's here - “that concern the constitutionality of an execution as opposed to the constitutionality of the capital sentencing determination.” Id. at 740.[FN5]
FN4. See also R. Hertz & J. Liebman, 2 Federal Habeas Corpus Practice and Procedure § 28.3e, at 1318 (4th ed. 2001) (explaining AEDPA's shift from disjunctive cause-or-innocence standard to conjunctive “cause and innocence” standard); H. Hart & H. Wechsler, The Federal Courts and the Federal System 250 (R. Fallon, et al., eds., 2002 Supp.) (AEDPA changes prior law such that claim must

“satisfy both conditions”).
FN5. Accord Hertz & Liebman, supra, § 28.3e, at 1321.
Consistent with this understanding, Nelson's lawyers have conceded that Nelson's Eighth Amendment claim does not fit within AEDPA's narrow exceptions. In view of the fact that Alabama did not adopt lethal injection as its method of execution until July 2002, after Nelson's first habeas petition had been adjudicated, the district court pointedly asked Nelson's lawyer whether Nelson's claim “couldn't arguably … fall under a factual predicate that wasn't discovered earlier” within the meaning of § 2244(b)(2)(B). App. 69. Presumably alluding to the change in execution method, counsel responded that “[o]bviously, the factual predicate for this case was not available to Mr. Nelson until very recently.” App. at 69-70. But, referring to § 2244(b)(2)(B)'s actual-innocence prong, counsel correctly added that “[t]he problem is, I don't think that's the only part of the standard” and admitted that “obviously … our *17 claim does not have anything to do with factual innocence.” Id. (emphasis added). Accordingly, it is common ground in this case that because “an execution-related claim” - like Nelson's - “does not qualify for the innocence requirement of § 2244(b)(2)(B),” see Stevenson, supra, at 756, AEDPA's successive-petitions bar would have precluded Nelson from pursuing his Eighth Amendment challenge to Alabama's lethal-injection procedures in a habeas corpus petition.
B. Nelson's Belated Contention That His Claim Should Not Be Considered Successive Is Meritless.
In his brief to this Court, Nelson attempts an aboutface. Despite his concession, noted by the lower courts, “that he had exhausted all available habeas corpus relief and that he would have to get permission from the Eleventh Circuit in order to file a second or successive habeas petition” (App. 119-20 n.2), Nelson now contends that his claim should not be considered successive, for two reasons.
1. As an initial matter, Nelson repeatedly asserts

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that this Court in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), “held specifically that a lawsuit limited to claims arising for the first time out of the circumstances of a death-sentenced inmate's imminent execution - claims that were premature and unfit for adjudication until just before the execution is carried out - does not constitute a ‘second or successive’ habeas corpus application for purposes of § 2244(b) when it is filed after the denial of habeas corpus relief on an earlier petition challenging the underlying conviction and sentence.” Pet. Br. 15; see also id. at 23, 25, 28, 36-37.

Nelson is wrong; his argument is based on either a

misunderstanding or a mischaracterization of the

decision in Martinez-Villareal. At issue there was a

habeas

petition

presenting

a

“competency-to-be-executed” claim under Ford v.

Wainwright, 477 U.S. 399 (1986). The condemned

inmate had raised his Ford claim in a prior habeas

petition, but the district court had “dismissed [the

claim] as premature … because his execution was

not imminent and therefore his competence to be

executed could not be determined at that *18 time.”

Martinez-Villareal, 523 U.S. at 644-45. After the

State had obtained an execution warrant, the inmate

moved the district court to reopen his earlier-filed

Ford claim. Based on AEDPA's successive-peti-

tions bar, the district court refused. The Ninth Cir-

cuit reversed, seemingly on the broad ground that

because, almost by definition, a Ford claim will not

arise until after the first round of habeas litigation,

AEDPA's successive-petitions bar “does not apply

to a petition that raises only a competency to be ex-

ecuted claim.” Martinez-Villareal v. Stewart, 118

F.3d 628, 629 (9th Cir. 1997).

This Court affirmed but, as Nelson's counsel has correctly observed elsewhere, “on a much narrower ground than the appellate court had employed.” Stevenson, supra, at 744. Whereas “the Ninth Circuit [had] essentially read into the statute an exemption for Ford claims,” this Court “avoided deciding the broad issues in the case.” Id. at 742, 747. This Court held only that the inmate there had not filed a “second or successive” habeas petition at all but, instead, had simply moved to reopen his first

petition. See Martinez-Villareal, 523 U.S. at 643 (“There was only one application for habeas relief ….”). The Court concluded that in that unique situation, where a habeas petitioner moves to reopen an earlier-filed petition to obtain an initial merits determination of a previously-unripe claim, AEDPA posed no bar. The Court expressly did not adopt a broad-ranging exception to § 2244(b)'s successivepetitions bar for all claims that, for whatever reason, could not have been raised in a first petition. See id. at 645 n.*. Nelson's repeated suggestion to the contrary is mistaken - and given his own counsel's evident understanding of Martinez-Villareal's “narrow” holding (see Stevenson, supra, at 742-48), disingenuous.
Neither Martinez-Villareal nor its successor, Slack v. McDaniel, 529 U.S. 473 (2000), can be stretched to encompass Nelson's case. As noted, the numerically second petition in Martinez-Villareal was deemed a first petition because the petitioner there had moved to reopen a previously-filed claim. In Slack, a numerically second petition was deemed a first only because the actual first petition had been dismissed *19 on exhaustion grounds and, thus, could be treated “as though it had not been filed.” 529 U.S. at 488. Neither special circumstance would have obtained here. Nelson would not have been moving to reopen an earlier-filed claim; and because his first petition was denied on the merits, not for failure to exhaust or for some other technical deficiency, it could hardly have been deemed a non-event. There simply is no amount of massaging that could have made Nelson's petition (had he filed one) anything other than “second or successive.”
2. Nelson's brief next suggests (albeit obliquely) that Congress could not possibly have intended to preclude successive habeas petitions like his - petitions raising new claims that, though not implicating actual innocence, are based on facts not available at the time the first habeas petition was adjudicated. Pet. Br. 22-23. But as AEDPA's plain language demonstrates, that is precisely what Congress intended. Again, before AEDPA, a new claim could be presented in a successive petition on a showing either (i) that the factual basis for the claim was not

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available at the time the first petition was filed or (ii) that the petitioner was likely to be innocent. See Hertz & Liebman, supra note 4, § 28.3e, at 1318 (citing McCleskey v. Zant, 499 U.S. 467, 494-95 (1991)). Section 2244(b)(2)(B), as amended by AEDPA, clearly represents Congress' conscious design to tighten the successive-petition standard by requiring a showing of both (i) a newly-discovered factual predicate and (ii) probable actual innocence. See id. (“cause and innocence”); Hart & Wechsler, supra note 4, at 250 (“both conditions”). See generally Hatch Br. 2, 17-21.
Congress' determination to limit § 2244(b)(2)(B)'s reach to claims that (unlike Nelson's) implicate an inmate's actual innocence is not only crystal clear, but also eminently reasonable. It appropriately tempers the traditional habeas concerns of federalism, comity, and finality with a heightened solicitude for one uniquely compelling circumstance: an inmate's showing that he is actually, factually innocent - i.e., that he didn't do it. See *20Schlup v. Delo, 513 U.S. 298, 324-25 (1995) (“[T]he individual interest in avoiding injustice is most compelling in the context of actual innocence.”); see also Calderon v. Thompson, 523 U.S. 538, 558 (1998) (“AEDPA's central concern” is “that the merits of concluded criminal proceedings not be revisited in the absence of a strong showing of actual innocence.”).
***
This Court has recognized “that judgments about the proper scope of the writ are ‘normally for Congress to make.’ ” Felker v. Turpin, 518 U.S. 651, 664 (1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). This Court has also held that § 2244(b)(2)'s “added restrictions” on new-claim successive petitions are “well within the compass” of the “complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions” and, accordingly, do not implicate the Suspension Clause. Id. Given the evident care with which Congress crafted § 2244(b)(2)(B)'s exception - specifically (and reasonably) defining it to apply only to claims concerning a prisoner's actual innocence -

this Court should refuse Nelson's end-run, which, as one of his own lawyers has acknowledged, is wholly “unmoored in the language” of § 2244(b) (Stevenson, supra, at 781) and, indeed, reads the actual-innocence limitation right out of the statute.
C. Even If It Were Not Barred as Successive, Nelson's Claim Could Not Have Been Presented in a
Federal Habeas Petition.
Even aside from AEDPA's successive-petitions bar, Nelson would have faced at least two additional obstacles to filing a federal habeas petition challenging the imposition of his death sentence. First, as the State has emphasized throughout these proceedings, Nelson has made no effort whatsoever to exhaust his state remedies. See 28 U.S.C. § 2254(c) (inmate must exhaust “any available procedure” for raising his claim in state court). Nelson's failure is not excused by the fact that his claim arose after direct appeal. Where, as here, “state postconviction processes are open to *21 a claim not previously raised in state court … exhaustion of those processes is required.” Hart & Wechsler, supra note 4, at 1446.
Second, the claims Nelson raises here - not only his challenge to the cut-down procedure itself but also his demand to know the particulars of the State's lethal-injection “protocol,” the identifies and credentials of the persons performing execution procedures, and the setting in which those procedures will be performed - are in all likelihood barred by Teague v. Lane, 489 U.S. 288 (1989). As support for his various claims, Nelson cites only stock language from this Court's decisions in Louisiana v. Resweber, 329 U.S. 459 (1947), Trop v. Dulles, 356 U.S. 86 (1958), Estelle v. Gamble, 429 U.S. 97 (1976), and Farmer v. Brennan, 511 U.S. 825 (1994). There is no sense in which a favorable resolution of Nelson's claims is “dictated by” any of those decisions or by any other “precedent existing at the time [his] conviction became final.” Teague, 489 U.S. at 301.
***
Correctly “ascertain[ing]” that existing law

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“foreclosed any access to habeas corpus relief” (Pet. Br. 29), Nelson filed what was nominally a § 1983 complaint. But Nelson's “Complaint” bears all of the hallmarks of a habeas corpus petition and, accordingly, constitutes “an obvious attempt to avoid application” of the various restrictions on federal habeas practice. Gomez v. United States District Court, 503 U.S. 653, 653 (1992). Nelson's pleading seeks purely equitable relief, is directed to state officers in their official capacities, and, indeed, expressly names Warden Culliver as a defendant. Most importantly, as detailed below, Nelson's pleading expressly and directly challenges the imposition of his criminal sentence - by seeking “an order granting injunctive relief and staying [his] execution” (App. 22) - and thus falls squarely within the rule of Preiser v. Rodriguez that an inmate challenging his sentence in federal court “is limited to habeas corpus” and may not sue under § 1983. 411 U.S. 475, 489 (1973).
*22 II. The Claim Nelson Presents Is Not Cognizable Under Section 1983.
Nelson describes the State's position here (as well as the Eleventh Circuit's holding) as categorically barring a “death-sentenced inmate[] who ha[s] filed a federal habeas corpus petition … from bringing any § 1983 action that could be brought by other inmates.” Pet. 25 (emphasis added); see also id. at 26 (“any actions”); id. at 27 (“all § 1983 claims”); Pet. Br. 20 (“any federal action”). Thus, Nelson warns, unless he prevails, condemned inmates who have filed federal habeas petitions will be forever precluded from bringing § 1983 actions challenging, for instance, “the malicious and sadistic infliction of harm by prison guards,” “denial[s] of medical care,” and “denial [s] of the minimal civilized nature of life's necessities.” Pet. 25.
Nelson is wrong; he attacks the proverbial straw man. The State has never contended, and the Eleventh Circuit never held, that a condemned inmate who has filed a federal habeas petition is thereafter categorically barred from filing suit under § 1983. Nelson quotes the Eleventh Circuit as having held “that ‘a § 1983 claim is subject to the procedural

requirements for bringing a second or successive habeas claim.’ ” Pet. 26 (quoting Spivey v. Board of Pardons & Paroles, 279 F.3d 1301, 1302 (11th Cir. 2002)) (emphasis added). Nelson's quotation, however, conspicuously omits an important limitation on the scope of the Eleventh Circuit's rule. What the Spivey court actually held - and all the State contends here - is “that a ‘§ 1983 claim [challenging the legality of an execution] is subject to the procedural requirements for bringing a second or successive habeas claim.’ ” 279 F.3d at 1302 (emphasis added).
State prisoners in Nelson's shoes - i.e., those who have previously filed federal habeas petitions - may of course file § 1983 complaints challenging the conditions of their confinement. Indeed, this Court observed in Preiser v. Rodriguez that “a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life.” 411 U.S. at 499. What a state *23 prisoner may not do is dress up in § 1983 garb what is in substance a habeas petition - a pleading expressly seeking equitable relief from a conviction or sentence - in an attempt to skirt the various restrictions on habeas practice. On that score, this Court made two important observations in Preiser: first, that “a state prisoner challenging his underlying conviction and sentence on federal constitutional grounds in a federal court is limited to habeas corpus”; and second, that an inmate may not circumvent applicable habeas restrictions “by the simple expedient of putting a different label on [his] pleadings.” Id. at 489-90. As explained below, that is exactly what Nelson tried to do here.
A. Nelson's Claim Is Not Cognizable Under Section 1983 Because It Directly Challenges the Imposition
of His Death Sentence.
1. Under Preiser v. Rodriguez, a Claim That Challenges a Criminal Sentence Is Not Cognizable Un-
der Section 1983.
Nelson's position is, as it must be, that “Section 1983 is an appropriate vehicle for [his] claims.” Pet. Br. 30. The principal basis for that position

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seems to be § 1983's broad language, which authorizes “suit[s] in equity” against state actors who deprive citizens “of any rights, privileges, or immunities secured by the Constitution.” Preiser v. Rodriguez, however, makes clear that the fact that “[t]he broad language of § 1983” covers a prisonerplaintiff's request for equitable relief is “not conclusive.” 411 U.S. at 489. Rather, “despite the literal applicability of [§ 1983's] terms,” the “specific federal habeas corpus statute” is the exclusive remedy where it “clearly applies.” Id.; see also Spencer v. Kemna, 523 U.S. 1, 20 (1998) (Souter, J., concurring) (“In the manner of [Preiser], I read the ‘general’ § 1983 statute in light of the ‘specific’ federal habeas statute ….”).
To the end of giving the “specific” habeas statute its intended scope and effect, the Preiser Court embraced the uncontroversial proposition that a state prisoner who “challeng[es]” or “attack[s]” his criminal sentence on *24 constitutional grounds in a federal court and seeks equitable relief from that sentence, see 411 U.S. at 484, 489, 494, 498, 499, “is limited to habeas corpus” and may not pursue his challenge via § 1983, id. at 489. Indeed, even the Preiser dissenters seemed to agree that the habeas statute would - at the very least - govern a case involving an “attack … directed at a state court conviction or sentence.” Id. at 520 (Brennan, J., dissenting). More recently, in addressing a claim similar to Nelson's, this Court in Lonchar v. Thomas reiterated that the various restrictions on habeas practice “apply to a suit challenging the method of execution, regardless of the technical form of action.” 517 U.S. at 329 (citing Gomez v. United States District Court, 503 U.S. 653).
In the light of (and typically citing) Preiser and its progeny, every court of appeals squarely to consider the issue has held that a condemned inmate challenging the imposition of his death sentence must proceed via habeas, not § 1983. See, e.g., Buchanan v. Gilmore, 139 F.3d 982, 984 (4th Cir. 1998); Martinez v. Texas Court of Criminal Appeals, 292 F.3d 417, 420-21 (5th Cir. 2002); In re Sapp, 118 F.3d 460, 462 (6th Cir. 1997); Williams v. Hopkins, 130 F.3d 333, 335 (8th Cir. 1997); Fu-

gate v. Department of Corr., 301 F.3d 1287, 1288 (11th Cir. 2002).[FN6]
FN6. None of the decisions cited in Nelson's petition actually addresses the question whether Preiser-like concerns prevent an inmate's challenge to the imposition of his death sentence from proceeding under § 1983. See Supp. Br. in Opp. 2-6 (explaining Young v. Hayes, 218 F.3d 850 (8th Cir. 2000), Duvall v. Keating, 162 F.3d 1058 (10th Cir. 1998), and Wilson v. United States District Court, 161 F.3d 1185 (9th Cir. 1998)).
Accordingly, inasmuch as Nelson's claim for injunctive relief in this case constitutes a “challeng[e]” to or “attack[]” on his death sentence, Preiser controls and prohibits the claim from proceeding under § 1983.
*25 2. By Challenging a Procedure That Is a “Condition Precedent” to the Imposition of His Death Sentence, Nelson Challenges the Sentence It-
self.
Nelson seeks to avoid Preiser on two bases. First, he contends that, by definition, “§ 1983 cases do not challenge the conviction or sentence.” Pet. 26. That argument is baseless. Indeed, it is precisely the argument that this Court rejected in Preiser, namely, that state prisoners may “evade [habeas] requirement[s] by the simple expedient of putting a different label on their pleadings.” 411 U.S. at 489-90. Both Preiser and Lonchar make clear that it is a suit's substance, not its form, that determines its characterization as a § 1983 complaint or a habeas petition. See Lonchar, 517 U.S. at 329; Preiser, 411 U.S. at 489-90. To be sure, there are § 1983 claims - complaints about unsanitary living conditions, for instance - that do not entail challenges to criminal sentences. But just as surely there are those - like Nelson's - that do challenge criminal sentences and, accordingly, are subject to the restrictions on habeas corpus practice.
Nelson's second contention is that, even if a § 1983 action could be used to attack a state-imposed sen-

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tence, his § 1983 action does not. Specifically, Nelson says that his suit does not attack lethal injection per se, but instead merely challenges the constitutionality of a separate medical procedure. See Pet. Br. 9, 13, 15, 22, 29, 32, 33-35. Nelson's argument does not withstand scrutiny. As a baseline for evaluating Nelson's position, he has acknowledged that a “chemical composition challenge” - that is, a “challenge to the chemicals used for lethal injection” - “constitutes a challenge to a sentence of death by lethal injection” that must proceed via habeas, not § 1983. Supp. Cert. Reply 6. Nelson's concession is well-founded; this Court has recently refused stays of execution in a slew of cases in which death-sentenced inmates had presented chemical-composition claims in what were nominally § 1983 complaints. See Robinson v. Crosby, 124 S. Ct. 1196 (2004); Roe v. Taft, 124 S. Ct. 1196 (2004); Zimmerman v. Johnson, 124 S. Ct. 1168 (2004); *26 Bruce v. Dretke, 124 S. Ct. 1142 (2004); Williams v. Taft, 124 S. Ct. 1142 (2004); Ward v. Darks, 124 S. Ct. 1142 (2004); Beck v. Rowsey, 124 S. Ct. 980 (2004); Zimmerman v. Johnson, 124 S. Ct. 979 (2003). See also Lonchar, 517 U.S. at 329 (“method of execution” claim must proceed on habeas, not via § 1983).
Nelson seeks to distinguish his claim from the chemical-composition cases on the ground that his “challenge is to [the cut-down] medical procedure and not to the sentence of death.” Supp. Cert. Reply 6. But as Justice Stevens has correctly pointed out, the “procedural issue” whether a prisoner's claim is cognizable under § 1983, or must instead proceed via habeas, is “precise [ly]” the same in the chemical-composition and cut-down contexts. See Zimmerman, No. 03A497, 540 U.S. ___ (Dec. 15, 2003) (Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ., dissenting). In any event, as explained below, the razor-fine distinction that Nelson posits cannot be squared with either (i) the premise underlying the Question Presented, as reformulated by this Court, (ii) Nelson's own pleadings in this litigation, or (iii) most importantly, the real-world facts.
1. In his petition, Nelson framed the first of his two questions presented as follows: “Whether an action

brought by a death-sentenced prisoner pursuant to 42 U.S.C. § 1983, which does not attack a conviction or sentence, is - simply because the person is under a sentence of death - to be treated as a habeas corpus case subject to the restriction on successive petitions ….?” Pet. i (emphasis added). Plainly, the premise underlying Nelson's question presented was that his was not a challenge to the imposition of his death-sentence. In granting certiorari, this Court indicated a different view. Specifically, this Court reformulated the Question Presented, seemingly on the assumption that Nelson's claim does challenge the imposition of his sentence. As framed by this Court, the Question Presented asks “[w]hether a complaint brought under 42 U.S.C. Sec. 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution, is properly recharacterized as a *27 habeas corpus petition under 28 U.S.C. Sec. 2254?” App. 132-33 (emphasis added). Thus, the reformulated Question Presented does not, as Nelson continues to suggest even in his merits brief, ask generically “whether a death row inmate's § 1983 action should be treated as a habeas corpus petition subject to the procedures required for filing successive petitions ….” Pet. Br. 13. Rather, it asks only whether habeas treatment is appropriate for a § 1983 complaint that seeks to “pursue a challenge to the procedures for carrying out the execution.”
2. Nelson's suggestion that his § 1983 suit challenges something other than the imposition of his death sentence is also belied by his own pleadings, which demonstrate that it is precisely the imposition of his death sentence he is challenging. Nelson's complaint, for instance, refers to cut-downs (as well as other, preferable preparatory techniques) as “procedures employed in the execution process” (App. 16) (emphasis added), and asserts that the use of a cut-down will entail “unnecessary pain and suffering in administering the punishment of lethal injection to [him]” App. 20 (emphasis added). More to the point, Nelson has consistently (and correctly) represented that a medical procedure - whether cutdown or other - “necessarily must be performed on [him] as a predicate to the legal procedure of exe-

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cution ….” Pet. 14 (boldface in original).[FN7] Indeed, in response to the district court's pointed question how one could “separate [the cut-down] procedure from the execution” itself, Nelson's attorney responded that, while the procedure and the execution are not exactly “one and the same,” the procedure is “certainly … a condition precedent of the lethal injection.” App. 68 (emphasis added). Nelson's own pleadings thus demonstrate that his challenge is indeed to the imposition of his death sentence.
FN7. Accord, e.g., App. 11 (“predicate”), 11 (“predicate”), 12 (“necessary”), 16 (“predicate”), 30 (“require[d]”); Pet at 12 (“necessary”), 21 (“predicate”), 32 (“predicate”), 33 (“predicate”).
*28 3. Nelson's own characterizations of the preparatory procedure (whether cut-down or other) as “necessar[y]” to, a “predicate” to, and a “condition precedent” to his execution by lethal injection are not just consistent, they are accurate as a factual matter. It goes without saying that the State “will have to” perform some preparatory procedure “in order to be in a position to carry out the sentence of death by lethal injection.” Supp. Cert. Reply 6. The State cannot carry out an execution by lethal injection - the only means of capital punishment available to Nelson[FN8] - without first preparing the condemned prisoner in some fashion, whether by a superficial IV stick, by the insertion of a central line, or, if all else fails, through the use of a cutdown. See, e.g., App. 30 (Heath), 90-91 (Sonnier), 93-94 (Culliver), 99-100 (Heath). A preparatory medical procedure, therefore, is an integral component of - a necessary step in - the State's execution process. The procedure and the lethal injection itself are inseparable. A challenge to the former is necessarily a challenge to the latter.
FN8. See Ala. Code 15-18-82.1 (changing method of execution to lethal injection and giving inmates “one opportunity,” which Nelson failed to exercise, to choose death by electrocution).

Given that the State cannot proceed with Nelson's execution in the absence of some preparatory medical procedure - and, should it become necessary, a cut-down - it is plain that Nelson's challenge to the possible use of a cut-down constitutes an attack on the imposition of his sentence. Nelson's contrary argument rests on pure formalism, and has no footing in reality. Nelson's challenge to the cut-down procedure bears no meaningful similarity to a gardenvariety conditions-of-confinement claim - concerning, say, unsanitary living quarters or a guard's mistreatment. Such a claim has no necessary effect on the imposition of a criminal sentence. By contrast, Nelson's claim challenges a procedure that is, by his own admission, a “condition precedent of the lethal injection” itself. Nelson's claim thus necessarily interferes with the imposition of his sentence.
*29 In the teeth of this common-sense logic, Nelson asks this Court to draw a line between challenges to an execution per se, which he concedes must be raised on habeas, and all other claims, which he says may proceed under § 1983. Thus, for instance, Nelson concedes that a chemical-composition claim “constitutes a challenge to a sentence of death by lethal injection” that must be pursued on habeas. Supp. Cert. Reply 6. It follows, presumably, that a claim that lethal injection itself is unconstitutional must also in Nelson's view proceed on habeas. Accord, e.g., In re Sapp, 118 F.3d at 461; Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997). But, Nelson says, because his challenge is not technically to the execution itself, but instead to a necessary preparatory procedure, it is exempt from the restrictions on habeas practice and may proceed unencumbered under § 1983. Nelson is wrong.
In distinguishing bona fide § 1983 claims from habeas claims, line-drawing is required, to be sure. But the line Nelson would have this Court draw is formalistic and, worse, illogical. It leaves a gaping hole in - to the point of rendering virtually meaningless - the restrictions that Congress and this Court have specifically imposed on habeas corpus practice. An inmate who cannot file a viable habeas challenge to his death sentence per se - because his petition is successive, because he has not exhausted

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state remedies, etc. - will simply recast his claim as one challenging a preparatory procedure and slap a § 1983 label on it. Rather, for instance, than arguing forthrightly on habeas that his death sentence should be set aside or frontally attacking electrocution as a means of execution, he will challenge via § 1983 the use of arm and leg restraints as a means of securing him to the chair. Rather than filing a habeas petition attacking the constitutionality of lethal injection or challenging the particular cocktail of chemicals used in the injection, he will sue under § 1983 disputing the use of a gurney, a cutdown, or, perhaps, even a needle.
These are not idle concerns; Nelson's slope is a slippery one. Indeed, this Court recently confronted a § 1983-based *30 stay request in which a condemned inmate facing lethal injection relied on Nelson's case to challenge as “invasive” and “mutilat[ing]” the use of a “central line” - the very procedure Nelson offers as an acceptable alternative to a cut-down. See Pet. for Cert. 16, Robinson v. Crosby, No. 03-8673, cert. denied, 124 S. Ct. 1196 (2004). The point is that a challenge to a procedure - whether a cut-down, a central line, or an IV stick that is by all accounts a “condition precedent” to an execution will, if successful, yield precisely the same relief as would a frontal attack on the execution itself - inevitably the delay, and quite possibly the prevention, of that execution.
There is a better, more defensible line distinguishing habeas corpus petitions from bona fide § 1983 complaints in the unique context of capital sentencing. It is common ground here that challenges to death sentences per se (e.g., method-of-execution, chemical-composition) are on the habeas side of the line. Also on the habeas side are challenges, like Nelson's, to acts or procedures that are necessary predicates or, in his words, “condition[s] precedent,” to the imposition of a death sentence. Other constitutional claims - like garden-variety prisonconditions claims, which have no necessary effect on the imposition of a death sentence - may be pursued via § 1983.[FN9] This line is easily administrable in that it turns on the clear answer to a single question: Does the claim at issue challenge either

the death sentence itself or some act or procedure necessary for administering that sentence, such that success on the claim will necessarily interfere with the sentence's imposition? If so, it must be pursued on habeas; if not, it may proceed via § 1983. Unlike Nelson's formalistic rule, which opens a gaping loophole in settled habeas corpus restrictions, this line is also sensible in that it requires claims that in a *31 functional, real-world sense will necessarily interfere with the imposition of a criminal sentence to proceed via habeas.
FN9. That is not to say that a § 1983 plaintiff pursuing a claim that does not by its nature affect the imposition of a criminal sentence (say, a living conditions claim) is entitled to obtain a stay of execution while he litigates that claim. He is not. See infra Part III. B. Nothing in Heck v. Humphrey Suggests a Differ-
ent Analysis or Result.
Nelson asserts that the “decisive question” under Preiser for determining whether a claim is cognizable under § 1983, or must instead proceed on habeas, is “whether recognition of the claim will necessitate a finding that a state prisoner's underlying conviction or sentence is invalid.” Pet. Br. 31 That is incorrect. As shown above - and, indeed, by the very language from Preiser on which Nelson relies (see Pet. Br. 32) - the determinant in a suit for injunctive relief like Nelson's is whether the claim “challeng[es]” or “attack[s]” a criminal conviction or sentence. See supra at 23-24. Because Nelson's does so, it is barred by Preiser.
To the extent that Nelson contends that the controlling precedent here is not Preiser, but Heck v. Humphrey, 512 U.S. 477 (1994), he is mistaken. Nelson cites Heck in passing for the proposition that “state prisoners may seek redress under § 1983 if a judgment in the prisoner's favor would not ‘necessarily imply’ the invalidity of his or her conviction or sentence.” Pet. Br. 32. Nelson's point in citing Heck is presumably that because his challenge to the use of a cut-down in his execution would not “necessarily imply” the invalidity of his

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underlying death sentence, his claim is cognizable under § 1983.
Nelson's reliance on Heck is misplaced, for two reasons. First, because Nelson's complaint seeks purely injunctive relief from a criminal sentence, rather than damages, his suit is governed by Preiser, not Heck. Second, even assuming that Heck controlled here, Nelson's § 1983-based attack on a medical procedure that is by all accounts a “condition precedent” to his execution would be barred as “necessarily imply[ing] the invalidity” of his sentence.
*32 1. Preiser, Not Heck, Defines the Scope of Section 1983 for Suits Seeking Equitable Relief
From Criminal Sentences.
By its own terms, Heck is inapplicable to Nelson's suit, which seeks purely injunctive relief rather than money damages. What the passage in Heck from which Nelson excerpts the “necessarily imply” language actually says is that “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” 512 U.S. at 487 (emphasis added). Indeed, the Heck Court emphasized that Roy Heck's case was “clearly not covered by the holding of Preiser” for the very reason that he had not sought injunctive relief from his sentence but had instead sought only “monetary damages, as to which he could not ‘have sought and obtained fully effective relief through federal habeas corpus proceedings.’ ” Id. at 481 (quoting Preiser, 411 U.S. at 488). In short, Preiser is an injunctive-relief case, Heck was a damages case. See Heck, 512 U.S. at 478, 481, 482, 483, 486, 487, 488, 489, 490 (“damages”); see also Muhammad v. Close, No. 02-9065, 2004 WL 344163, at * 1 (Feb. 25, 2004) (Heck rule applies to “§1983 damages action[s]”).
Unlike Roy Heck's, Nelson's suit does not request damages and, in fact, is expressly styled a “Complaint for Injunctive and Declaratory Relief.” App. 5. In its prayer, Nelson's complaint seeks purely equitable relief - principally “an order grant-

ing injunctive relief and staying [Nelson's] execution.” App. 22. Nelson's suit, therefore, is subject not to Heck's rule allowing § 1983 “damages” claims that do not “necessarily imply the invalidity of [a] conviction or sentence,” 512 U.S. at 487, but rather to Preiser's rule foreclosing § 1983 claims that “challeng[e]” and seek equitable relief from a state-court sentence, 411 U.S. at 489. This, put simply, is a Preiser case, not a Heck case.
To the extent that Preiser's rule for injunctive-relief claims sweeps more broadly, and precludes more § 1983 actions, than does Heck's rule for damages claims, there is *33 good reason. There is a very real difference in the extent to which each type of suit - for damages on the one hand, for injunctive relief on the other - should be viewed as circumventing the habeas statute and its attendant restrictions. In the case of a plaintiff who seeks only damages for an allegedly unconstitutional conviction or sentence, the circumvention of the habeas statute occurs, if at all, only indirectly. The damages plaintiff could not have obtained the monetary relief he seeks in a habeas proceeding. Preiser, 411 U.S. at 488. Nor will his suit, even if successful, ipso facto give him the equitable relief that habeas corpus is designed to provide; rather, to complete the cycle of circumvention, he will have to file a second suit for injunctive relief and convince a second judge to give the § 1983 damages judgment preclusive, precedential, or persuasive effect. In stark contrast, the plaintiff who files a § 1983 action seeking injunctive relief from his conviction or sentence - the very relief he could have sought in a habeas petition - thumbs his nose at the habeas statute's requirements.
The two situations are different, and call for different rules. It makes sense to give more leeway - in the form of a rule that forecloses only those claims that “necessarily imply” a judgment's invalidity - to a § 1983 plaintiff who seeks only damages, and whose suit therefore may be used only indirectly to circumvent traditional habeas restrictions. By the same token, a stricter rule - one that broadly prohibits all “challeng[es]” and “attack[s]” - is warranted in the case of suits seeking injunctive relief from

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state convictions or sentences, in which the circumvention of the habeas statute is patent, immediate, and certain.
In any event, the important point here is that no matter what standard Heck establishes for § 1983 suits seeking only damages - and no matter why Heck's standard may be more permissive than Preiser's - Nelson's suit, which seeks purely injunctive relief from his state-imposed death sentence, is governed by Preiser, not Heck. Accordingly, Nelson's claims in this case, which “challeng[e]” and “attack[]” his sentence, are not cognizable under § 1983.
*34 2. Nelson's Suit Would Be Barred Even Under Heck Because It Necessarily Implies the Invalidity
of His Death Sentence.
Under Heck, the determinant of a § 1983 damages claim's cognizability is whether that claim, if successful, would “necessarily imply the invalidity of [the prisoner-plaintiff's] conviction or sentence.” If so, the § 1983 plaintiff must as a precondition to suit show - as Nelson cannot - that the conviction or sentence has been invalidated in another forum. Because in every real and meaningful sense Nelson's claim does “necessarily imply” the invalidity of his sentence, it is not cognizable under § 1983 even on Heck's seemingly more permissive test.
Nelson's challenge to the use of a cut-down “necessarily impl[ies]” the invalidity of the sentence of death by lethal injection as it pertains to him - in Heck's words, “his … sentence.” 512 U.S. at 487. Again, as Nelson himself has correctly recognized, the State “will have to” perform a procedure to gain venous access “in order to carry out the sentence of death by lethal injection.” Supp. Cert. Reply 6. And again, the record in this case makes clear that a cut-down will be used only as a “last resort” - only, that is, if it becomes truly “necessary” to administer the lethal injection. See supra at 8-10, 28-29. Granting the assumption underlying Nelson's own claim - that a cut-down will become necessary and will in fact be used to carry out his execution - it is clear that Nelson's challenge

to that “necessary” procedure would, if successful, leave the State without any available means of administering a lethal injection. And, indeed, given Nelson's failure to choose electrocution when that option was open, which in turn leaves lethal injection as the only means of execution available to him (see supra at 4, 28 n.8), Nelson's claim would seemingly prevent the State from carrying out his death sentence at all. Accordingly, in every practical, real-world sense, Nelson's § 1983 action would, if successful, “necessarily imply” the invalidity of “his … sentence” within the meaning of Heck.
*35 Nelson, of course, contends that he is not challenging his sentence per se, but is instead challenging only a “procedure” for carrying his sentence into effect. See supra at 25. But as we have shown, Nelson's effort to separate “procedure” from sentence rests on a formalistic - and ultimately untenable - distinction, because the “procedure” Nelson challenges is by his own admission a necessary predicate - a “condition precedent” - to the imposition of his sentence. See supra at 27. In the circumstances of this case, a decision invalidating the “procedure” would also effectively invalidate the sentence.
This Court has made clear that the Heck standard should be applied functionally, not formalistically. In Heck itself, the Court characterized its holding as reaching beyond claims of “unconstitutional conviction or imprisonment” to encompass, as well, allegations of “other harm caused by actions whose unlawfulness would render a conviction or sentence invalid.” 512 U.S. at 486-87. The Court thus clarified that Heck's limitations on § 1983 actions extend beyond unvarnished, frontal assaults on convictions and sentences per se. Rather, those limitations apply as well - as they must in the real world to claims that, though perhaps not “directly attributable” to a conviction or sentence, see id. at 487 n.6, nonetheless necessarily affect the conviction's or sentence's validity.
In Edwards v. Balisok, 520 U.S. 641 (1997) - a decision that Nelson altogether ignores - this Court's emphasis on functional reasoning was even more

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apparent. There, the Court pointed to Heck's “other harm” language in expressly embracing a practical, functional approach to the question whether a given § 1983 claim “necessarily impl[ies]” the invalidity of a conviction or sentence. Balisok had filed a § 1983 action alleging that the procedures utilized in a prison disciplinary hearing at which he was deprived of good-time credits violated due process. Like Nelson here, Balisok insisted that his challenge was concerned solely with “procedures,” and not with his ultimate sentence or punishment. See, e.g., Br. for Resp. 6, 7, 8, 16, No. 95-1352 *36 (Aug. 2, 1996). As this Court summarized Balisok's claim, it “posited that the procedures were wrong, but not necessarily that the result was.” 520 U.S. at 645. The Ninth Circuit had adopted a formalistic rule that a claim challenging only procedures will never “necessarily imply” a punishment's invalidity within the meaning of Heck and thus is “always cognizable under § 1983.” Id. at 644.
In reversing, this Court unanimously rejected the Ninth Circuit's bright-line rule sanctioning all § 1983-based challenges to disciplinary-hearing “procedures.” Instead, the Balisok Court concluded that while some challenges to procedures will not run afoul of Heck, others certainly will. That determination, this Court emphasized, will depend on “the nature of the challenge to the procedures” and whether, in a particular case, the procedural challenge is “such as necessarily to imply the invalidity of the judgment.” Id. at 645. And, indeed, this Court held that several of Balisok's challenges, although ostensibly aimed solely at the procedures employed, not at the punishment imposed, did “necessarily imply” the invalidity of his punishment within the meaning of Heck, and were therefore not cognizable under § 1983.
Balisok's functional reasoning applies precisely to this case. Like Balisok, Nelson insists that he is not attacking his sentence per se, but is instead challenging a “procedure” used to administer that sentence. That procedural challenge, he says, may proceed under § 1983, without regard to the rules governing habeas corpus practice. What Nelson seeks in this case is a Ninth-Circuit-like rule that a chal-

lenge to an execution “procedure” can never amount to a challenge to the execution itself. But that is just the sort of wooden formalism that this Court rejected in Balisok. It is the “nature of [Nelson's specific] challenge,” id. at 645, that determines whether his § 1983 claim is foreclosed by Heck. Viewed functionally, as Balisok shows it should be, it is clear that Nelson's claim is indeed barred. Just as Balisok demonstrates that the legal relationship between a particular “procedure” and a sentence can be such that a challenge to the former is *37 tantamount to a challenge to the latter, so, too, the factual relationship between the cut-down “procedure” that Nelson attacks and his death sentence - the former being a “condition precedent” to the latter - exposes Nelson's challenge as one directed to his sentence.
C. A Decision Permitting Nelson's Section 1983 Suit Would Gut AEDPA's Successive-Petitions Bar.
In Calderon v. Thompson, 523 U.S. 538 (1998), this Court was unanimous as to one point: A death-row inmate's motion to recall an appellate court's mandate (or, for that matter, a court's sua sponte recall of its own mandate) may not “be condoned as a mechanism to frustrate [AEDPA's] limitations on second and successive petitions.” Id. at 569 (Souter, J., dissenting); accord id. at 553-54 (majority opinion). The question in this case is whether another device - a civil rights suit brought under § 1983 should be “condoned” as a means of achieving the very same “frustrat[ion]” of congressional intent. The answer is no.
When it enacted AEDPA's successive-petitions bar as part of its effort “to reduce delays in the execution of state and federal sentences, particularly in capital cases,” Garceau, 538 U.S. at 206, Congress seemingly had a case like this one in mind. As is evident from the text of 28 U.S.C. § 2244(b) quoted and discussed in detail above - Congress carefully considered the question when, if ever, a prisoner who has already litigated one habeas corpus petition should be able to collaterally attack his conviction or sentence a second time. As to successive petitions raising claims presented in earlier

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petitions, Congress answered categorically: never. Id. § 2244(b)(1). With respect to claims - like Nelson's here - that were not raised in previous petitions, Congress was only slightly more circumspect. As relevant here, Congress determined that an inmate may file a successive petition raising a new claim only where both “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence” and the claim, if successful, would prove by clear and convincing evidence *38 that the inmate was actually, factually innocent of the underlying offense. Id. § 2244(b)(2). See generally Hatch Br. 2, 17-21. Here, Nelson's lawyers have conceded - correctly that Nelson's Eighth Amendment claim does not fit within AEDPA's narrow exceptions. See supra at 16-17.
Referring specifically to § 2244(b)'s foreclosure of successive habeas petitions like Nelson's - those presenting claims that do not implicate actual innocence but that, for whatever reason, were not available when the first petition was adjudicated - Nelson's counsel, Mr. Stevenson, has in his academic writings lamented what he calls “the problems with AEDPA's successive petition restrictions.” Stevenson, supra, at 774. Stevenson acknowledges that the most forthright way to “cure” AEDPA's “problems” would be “to seek a congressional amendment to the statute.” Id. He also realizes, however, that a statutory amendment would require the support of a majority of elected representatives and that “securing such a Congressional majority is … the big hitch.” Id. Faced with what he calls that “hitch,” Stevenson has said that the courts offer the “best hope” for AEDPA “reform.” Id. at 776.
The first judicial fix Stevenson has proposed is for this Court to “proceed down the path traveled by the Ninth Circuit” and to “construe the successive petitions provision as exempting claims that were not reviewable at the time of the earlier petition” wholly without regard for § 2244(b)(2)'s explicit limitation to new claims that implicate actual innocence. Id. at 778. Ultimately, Stevenson rightly concedes that such a solution is “unmoored in the language of the statute.” Id. at 781. Nelson's posi-

tion here is no different. He would have this Court arrive at the same destination as the Ninth Circuit, only by the seemingly more benign route of § 1983.
In seeking habeas-like equitable relief from his sentence in what is nominally a § 1983 action, Nelson is effectively asking this Court to engraft a new exception onto AEDPA's rule prohibiting successive petitions. Nelson would have this Court permit his suit to go forward on the basis that, in view of Alabama's change in execution method, the “factual *39 predicate” underlying his current claim was not available to him when he filed his first habeas petition - even though he acknowledges that his “claim does not have anything to do with factual innocence” (App. 70) as expressly required by § 2244(b)(2)(B). Nelson's position is every bit as “unmoored” in AEDPA's text and structure as the Ninth Circuit's freewheeling interpretation in that it, too, reads the carefully considered actual-innocence limitation right out of the statute. See generally Hatch Br. 2, 17-21.
As this Court held in Preiser, the “specific federal habeas corpus statute” must control over the general § 1983 wherever the former “clearly applies.” 411 U.S. at 489; see also Spencer, 523 U.S. at 21 (Souter, J., concurring). In § 2244(b)(2), Congress made a very “specific determination,” Preiser, 411 U.S. at 490, not to permit claims like Nelson's to proceed in successive habeas petitions. Nelson may not circumvent that specific determination by the “simple expedient of putting a [§ 1983] label” on what is in substance a successive petition. See id. at 489-90.
***
Citing Preiser, this Court has observed that “[i]t is difficult to believe that the drafters of [§ 1983] considered it a substitute for a federal writ of habeas corpus,” and has emphasized “the continuing illogic of treating federal habeas and § 1983 suits as fungible remedies for constitutional violations.” Allen v. McCurry, 449 U.S. 90, 104 & n.24 (1980). Offering § 1983 as a convenient “substitute” for what is in substance a habeas corpus petition - and treating

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the two very different remedies as “fungible” - is precisely what Nelson's challenge in this case does. This Court should reject Nelson's effort to conflate the two.
III. The Relief Nelson Seeks - A Stay of His Impending Execution - Is Not Available Under Sec-
tion 1983.
Even assuming that the claim Nelson presents is not itself categorically outside the scope of § 1983 on the ground that it “challeng[es]” (or “necessarily impl[ies] the invalidity” of) his sentence, Nelson's suit is nonetheless impermissible *40 because the relief he requests - namely, a federal stay of his impending execution - is not available under § 1983.
This Court's reformulated Question Presented focuses, in a way that Nelson's did not, on Nelson's request for a stay of execution. Nelson's proposed question did not mention the stay request and, indeed, as shown above, presupposed that Nelson's suit did not in any way “attack a conviction or sentence.” Pet. i. As reformulated by this Court, however, the Question Presented asks whether a § 1983 complaint brought “by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution,” should be subject to the restrictions on habeas practice. App. 132-33 (emphasis added). This Court's focus on Nelson's stay request is appropriate, because “federal courts lack jurisdiction under § 1983 to stay executions.” Beets v. Texas Bd. of Pardons & Paroles, 205 F.3d 192, 193 (5th Cir. 2000); Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932, 933 (11th Cir. 2001) (same); see also In re Sapp, 118 F.3d at 462-63.
It is scarcely debatable that “a request for a stay of execution entails a potential federal interference with state penal interests that is equivalent to, if not greater than, the request for immediate release (or speedier release) from prison that was at issue in Preiser.” Martinez, 292 F.3d at 423. Just as in Preiser this Court acknowledged the State's compelling interest in making certain that prison sentences are not cut short, so too the State has an overriding in-

terest in ensuring that its death sentences are carried out promptly and not stalled as the result of procedural gamesmanship. For victims' families, and for society at large, endless maneuvering like Nelson's very much implicates the old maxim quoted by Senator Hatch during the debates on AEDPA's habeas-reform provisions[FN10] - that “[w]hen the case is proved, and the hour is come, justice delayed is justice denied.” *41Geo. Walter Brewing Co. v. Henseleit, 132 N.W. 631, 632 (Wis. 1911).[FN11] Accordingly, just as this Court held in Preiser that a request for speedier release must proceed, if at all, on habeas corpus, so must a prisoner's “last-minute effort to defeat and delay [his] execution” by way of a stay. Beets, 205 F.3d at 193.
FN10. See 142 Cong. Rec. S3362 (Apr. 16, 1996).
FN11. See also Thompson, 523 U.S. at 556 (“Only with an assurance of real finality can the State execute its moral judgment in a case. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out.”).
The rule that federal courts may not stay impending executions under § 1983 precludes Nelson's suit, but that result was hardly inevitable. That Nelson's stay request is now barred is no one's fault but his own. The record shows that Nelson has known about his “severely compromised veins” and, indeed, “has encountered repeated problems … with prison medical personnel gaining venous access,” for at least “two decades.” Pet. Br. 5; App. 7. The implication of this known venous condition for his execution should have been apparent to Nelson, at the latest, by July 1, 2002, when the Alabama Legislature adopted lethal-injection as the State's method of execution. See Ala. Code § 15-18-82.1.
Even setting aside what Nelson knew or should have known in July 2002, it is indisputable that Nelson had actual, subjective knowledge of the particulars of his Eighth Amendment claim by August 19, 2003. On that date, Nelson's lawyer reported in a letter to Warden Culliver that “Mr. Nelson has

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great concerns about the lethal injection procedure due to the fact that he has severely compromised veins,” and acknowledged the possibility that the State might have to use a “ ‘cutdown’ procedure” to administer Nelson's execution. App. 25-26.
Nelson, however, did not file his § 1983 complaint in July 2002, or even in August 2003. Nor, for that matter, did Nelson file on September 3, 2003, when the Alabama Supreme Court set his execution for October 9, 2003. Had Nelson filed at any of those times, he may well have been able to litigate his Eighth Amendment challenge without *42 requiring a stay of execution. See, e.g., 11th Cir. R. 27, I.O.P. 3 (“Motion to Expedite Appeals”). As it is, Nelson sat on his rights for (at least) a full seven weeks and then sprang his challenge on the State a mere 72 hours before his scheduled execution - at which point he sought a stay of execution and asserted, as a basis for the stay, that in the light of his (now) impending execution “[f]ailure to provide injunctive relief w[ould] result in irreparable harm.” App. 20, 22.
In these circumstances, it is hardly unjust to apply to Nelson the rule disallowing federal courts to stay impending executions under § 1983. Thus, even if the nature of Nelson's claim does not take Nelson's suit outside § 1983 (see Part II), the relief he seeks does so.
IV. No Matter How Nelson's Suit Is Characterized, Equitable Considerations Require Its Dismissal.
Ultimately, this Court can decide this case without resolving whether either the claim Nelson presents (see Part II) or the relief he seeks (see Part III) carries his suit outside § 1983's ambit. Instead, this Court can dispose of Nelson's suit, and affirm the court of appeals' decision, on a straightforward application of Gomez v. United States District Court, 503 U.S. 653 (1992).
In Gomez - which Nelson inexplicably ignores condemned inmate Robert Alton Harris filed an eleventh-hour § 1983 complaint alleging that California's method of execution violated the Eighth Amendment. After the Ninth Circuit stayed Harris'

execution, the State filed a motion to vacate the stay, which this Court granted by a 7-2 vote. The Gomez Court gave two distinct reasons for rejecting Harris' complaint and lifting the stay. First, noting that Harris had previously filed four federal habeas petitions, the Court found Harris' § 1983 complaint to be “an obvious attempt to avoid the application” of pre-AEDPA limitations on successive petitions. Id. at 653 (citing McCleskey v. Zant, 499 U.S. 467).
Separately, and more importantly for present purposes, this Court held that it did not ultimately matter “[w]hether *43 [Harris'] claim was framed as a habeas petition or as a § 1983 action.” Id. at 653-54. In either case, “Harris s[ought] an equitable remedy” - namely, a stay of execution. And “[e]quity,” this Court emphasized, must take into account both (i) “the State's strong interest in proceeding with its judgment” and (ii) “Harris' obvious attempt at manipulation.” Id. at 654. Further, observing that “there [was] no good reason for [Harris'] abusive delay” in bringing suit and that Harris had engaged in “last-minute attempts to manipulate the judicial process,” this Court held that it would “consider the last-minute nature of [Harris'] application to stay execution in deciding whether to grant relief.” Id.; accord Sawyer v. Whitley, 505 U.S. 333, 341 n.7 (1992); Herrera v. Collins, 506 U.S. 390, 425-26 (1993) (O'Connor, J., concurring).
Gomez controls this case and requires dismissal of Nelson's suit, whatever its label. Each of the factors this Court emphasized in Gomez is present in this case, as well. First, like Harris, Nelson expressly seeks an equitable remedy, namely, “an order granting injunctive relief and staying [his] execution.” App. 22. Second, given that more than a quarter century has passed since Nelson committed the murders at issue, the State's equitable interest in “proceeding with its judgment” is every bit as “strong” as - and indeed is stronger than - it was in Gomez, where only 14 years had elapsed. 503 U.S. at 654; see also Thompson, 523 U.S. at 552; In re Blodgett, 502 U.S. 236, 239 (1992); Engle v. Isaac, 456 U.S. 107, 128 (1982).
Third, just as in Gomez there was “no good reason”

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for Harris' delay in bringing suit, see 503 U.S. at 654, there is no excuse for Nelson having sat on his rights. As explained above, Nelson possessed all of the facts necessary to raise his claim as of July 1, 2002, and, at the very latest, subjectively knew of the particulars of his claim on August 19, 2003 seven full weeks before his scheduled execution. See supra at 5, 41-42. Finally, and relatedly, by springing his claim on the State and the courts a mere 72 hours before his scheduled execution and then brazenly asserting - based on the *44 shortness of time - that he would suffer “irreparable harm” (App. 20) in the absence of a stay, Nelson, like Harris before him, plainly engaged in “last-minute attempts to manipulate the judicial process.” Gomez, 503 U.S. at 654. Nelson's suit is gamesmanship, pure and simple.[FN12]
FN12. Lonchar v. Thomas, 517 U.S. 314 (1996), which held that a lower court may not dismiss a first federal habeas petition solely on “equitable” Gomez grounds, is of no aid to Nelson. Throughout its opinion, the Lonchar Court emphasized that the case before it involved a “first habeas petition,” id. at 319, 321, 322, 324, 325, 329, and distinguished Gomez on the ground that it “was not a first habeas petition,” id. at 329 (emphasis in original). Because Nelson's pleading is not, on any reading, a “first habeas petition,” this case is controlled by Gomez, not Lonchar.
The only respect in which this case is even arguably distinct from Gomez is the length of each prisoner's delay in bringing suit. In Gomez, this Court noted that Harris' challenge to California's use of lethal gas “could have been brought more than a decade ago.” Id. We acknowledge that Nelson would have had no particular reason to challenge the use of a cut-down procedure ten years ago, as Alabama had not yet adopted lethal injection as its method of execution. Nelson, however, most certainly could have raised his claim - and had every reason to do so - when Alabama switched from electrocution to lethal injection in July 2002, fifteen months before his scheduled execution. He did not. Indeed, even if

Nelson's delay is measured not from July 2002 but instead from August 19, 2003, his situation is not so different from Harris' as to call for a different result. It is the fact of Nelson's manipulative delay, not its length, that should control.
Had Nelson really wanted to litigate his Eighth Amendment claim - rather than merely to derail the State's capital sentencing process - he could have done so without waiting until the eleventh hour and seeking a stay. Nelson opted instead to lie in wait. He sandbagged both the State and the courts. This Court should not reward Nelson's obvious manipulation of the system.
*45 V. Nelson Is Not Without a Remedy Here.
We conclude our brief where Nelson began his. Nelson contends that unless he prevails in this case - i.e., unless his Eighth Amendment claim here is cognizable under § 1983 - he will be without “any remedy” at all. Pet. Br. 14, 19, 20. Again, Nelson is wrong.
A. Nelson Had - And Still Has - Viable Remedial Options Open to Him.
Even on the assumption - which underlies the lower courts' decisions and was until Nelson's merits brief accepted as fact by all parties here - “that [Nelson] ha[s] exhausted all available habeas corpus relief” (App. 119 n.2), it simply is not the case that § 1983 is the only means by which Nelson could have raised his claim. In fact, Nelson had multiple avenues - some in federal court, and many more in state court - available to him for pressing his Eighth Amendment challenge. For whatever reason, Nelson opted not to avail himself of any (but one) of the remedies open to him, but it simply is not true that he was without a non-§ 1983 remedy to begin with.
One avenue open to Nelson - and the only non-§ 1983 remedy that Nelson bothered to pursue as a means of raising his Eighth Amendment challenge was a petition for an original writ of habeas corpus in this Court. See Felker v. Turpin, 518 U.S. 651 (1996). Nelson filed an application for an original

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writ alongside his petition for certiorari in this case; this Court denied Nelson's application. In re Nelson, 124 S. Ct. 583 (2003).
Nelson had at least three additional avenues open to him in state court. First, subject to generally applicable procedural rules, he could have sought state post-conviction relief on any of several grounds pursuant to what in Alabama is called a “Rule 32” petition. See Ala. R. Crim. P. 32.1(a) (State or Federal Constitution requires new sentence), (c) (sentence not authorized by law), (e) (newly discovered facts). Any decision of the Alabama Supreme Court affirming the denial of an Eighth Amendment-based Rule 32 *46 petition on the merits would have been subject to certiorari review in this Court under 28 U.S.C. § 1257. Nelson never filed a Rule 32 petition challenging the use of a cutdown in the administration of his death sentence.
Second, and wholly apart from Rule 32, Nelson could have filed under Ala. R. App. P. 27(a) a response to the State's motion in the Alabama Supreme Court to set his execution date. In that response, Nelson could have argued (as he does here) that his execution should be set aside at least until such time as a cut-down is definitively eliminated as a means of administering his lethal injection. A response to the State's motion to set the execution date would hardly have been futile. The Alabama Supreme Court may not set an execution date without at least allowing time for an inmate's response, see Ala. R. App. P. 27(a), (b), and, in fact, that court can (and sometimes will) sua sponte “order[]” an inmate to “file a written response” to the State's motion, see Order, Ex parte Bradley, No. 85-424 (Oct. 5, 2001). More than once, the Alabama Supreme Court has on the basis of a condemned inmate's response denied the State's motion to set an execution date. See, e.g., Order, Ex parte Grayson, No. 1830756 (May 22, 2003). And, indeed, in recently-issued ruling, the court granted a condemned inmate (who, like Nelson, has been on death row for more than 20 years) a three month extension of time in which to respond to the State's motion so that he could pursue an open-ended “review of his medical records.” Order, Ex parte

Hubbard, No. 1780688 (Jan. 22, 2004).
In this case, Nelson's lawyers sought the State's consent to an additional seven-day enlargement, beyond the time to which state law already entitled them, in which to file a response to the State's motion to set an execution date. The State consented to, and the Alabama Supreme Court granted, Nelson's requested enlargement. See Order, Ex parte Nelson, No. 1860528 (Apr. 17, 2003). Nelson never filed a response.
Finally, once his execution was set, Nelson could have filed in state court a motion to stay the execution on federal *47 constitutional grounds, the denial of which would have been subject to this Court's review under § 1257. See Order, Ex parte Bradley, No. 85-424 (July 13, 2001) (granting motion to stay execution); see also In re Tarver, 528 U.S. 1146 (2000) (granting stay of execution pending disposition of certiorari petition from state court's denial of motion to stay), cert. denied, 528 U.S. 1183 (2000). Nelson had every reason and opportunity to file a motion to stay in state court. Again, the record makes absolutely clear that Nelson was actually, subjectively aware of his Eighth Amendment claim on or before August 19, 2003, two weeks before the Alabama Supreme Court set Nelson's execution date, and nearly two months before the scheduled execution date itself. (On the afternoon of his scheduled execution, Nelson in fact did file a stay motion in the Alabama Supreme Court, which that court denied as moot after this Court granted Nelson's stay request. For whatever reason, Nelson declined to raise any Eighth Amendment issue in his state-court stay motion; he relied exclusively on state law. See Br. in Opp. 4 n.1.)
Nelson, therefore, was not without options.[FN13] To the extent that Nelson now finds his remedies limited, that is a problem of his own making. By and large, Nelson has refused to avail himself of the non-§ 1983 remedies open to him. He still has offered no explanation for that failure. In any event, Nelson is not without avenues for relief even now. Despite Nelson's failure to pursue viable state-court remedies before, those very outlets remain available

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to him today - even if the State prevails in this case. In the wake of this Court's October 9, 2003, order staying Nelson's execution, see 124 S. Ct. 383 (2003), the State, even if it wins here, must go back to the Alabama Supreme Court and ask it to set a new execution date. During the pendency of that request, Nelson may again pursue a Rule 32 petition in the trial court and on appeal. Further, Nelson may respond *48 directly in the Alabama Supreme Court to the State's motion to reset the execution date. And further still, once that court fixes a new date, Nelson may then move to stay.
FN13. Alabama, of course, is by no means alone in granting condemned inmates access to these and other similar state postconviction remedies. See Br. of Ohio, et al., as Amici Curiae at 22 & n.1.
The State would of course vigorously oppose Nelson's Eighth Amendment challenge to the imposition of his death sentence, but it is not clear how that dispute would be resolved. Neither this Court, nor the Alabama Supreme Court, nor the Eleventh Circuit will have reviewed - let alone decided - the merits of Nelson's claim. The question whether the Eighth Amendment prohibits the use of a cut-down as a predicate to an execution by lethal injection will remain open. And, again, any decision of the Alabama Supreme Court on that question will be subject to this Court's certiorari review under § 1257. (Nelson's implicit suggestion that this Court's § 1257 jurisdiction somehow provides an insufficient check on state courts' decisions concerning execution-related issues is belied by this Court's routine issuance of writs of certiorari to state courts to consider such questions. See, e.g., Roper v. Simmons, 124 S. Ct. 1171 (2004) (certiorari to state court); Atkins v. Virginia, 533 U.S. 976 (2001) (same); Bryan v. Moore, 528 U.S. 960 (1999) (same).)
B. Nelson Has No Absolute Right To Litigate His Eighth Amendment Claim in a Section 1983 Ac-
tion.
Given the viable state-court options open to him

(and the existence of certiorari review in this Court), the fact that Nelson does not have at his disposal the full panoply of federal-court remedies including § 1983 - is of no particular moment. There are all manner of procedural rules, defenses, and doctrines that, in certain circumstances, will operate to foreclose a federal court's consideration of a federal constitutional claim under § 1983 even where that claim has never before been decided on the merits. See, e.g., Migra v. Warren City Sch. Dist., 465 U.S. 75, 83-84 (1984) (res judicata); Wilson v. Garcia, 471 U.S. 261, 280 (1985) (statute of limitations); Bogan v. Scott-Harris, 523 U.S. 44, 48-49 (1998) (absolute immunity).
*49 The unstated premise of Nelson's argument here - that because habeas corpus is not available to him, § 1983 must be - has been squarely rejected by this Court. In Allen v. McCurry, 449 U.S. 90 (1980), this Court reviewed a lower-court decision holding, in essence, that because under Stone v. Powell, 428 U.S. 465 (1976), a state convict could not raise his Fourth Amendment claim in a federal habeas corpus petition, he was entitled to a “federal judicial hearing of that claim in a § 1983 suit.” Allen, 449 U.S. at 103. This Court expressly rejected that holding, as well as the supposition underlying it “that every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court, regardless of the legal posture in which the federal claim arises.” Id. That assumption, this Court observed, has no support either “in the Constitution” or “in § 1983 itself.” Id.
The Allen Court added, in words uniquely applicable here, that “[t]he only other conceivable basis for finding a universal right to litigate a federal claim in a federal district court is hardly a legal basis at all, but rather a general distrust of the capacity of the state courts to render correct decisions on constitutional issues.” Id. at 105. This Court then “emphatic [ally] reaffirm[ed] … the constitutional obligation of the state courts to uphold federal law” and expressed its “confidence in their ability to do so.” Id.; accord, e.g., Stone, 428 U.S. at 493-94 n.35; Huffman v. Pursue, 420 U.S. 592, 611

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(1975); Steffel v. Thompson, 415 U.S. 452, 460-61 (1974); Ex parte Royall, 117 U.S. 241, 251 (1886).
Thus, even accepting Nelson's view that “[t]he failure to provide any remedy for an Eighth Amendment violation would offend longstanding traditions of justice” (Pet. Br. 14, 19), Nelson simply is not in that boat. Nelson had - and still has - meaningful avenues of relief open to him. As it has done before in Preiser, Heck, Balisok, and Allen, this Court should reject Nelson's invitation to anoint § 1983 as a one-size-fits-all remedy.
*50 CONCLUSION
For the foregoing reasons, this Court should affirm the judgment of the court of appeals and lift the stay of execution.
U.S.,2004. David L. NELSON, Petitioner, v. Donal CAMPBELL, Commissioner, Alabama Department of Corrections, et al., Respondents. 2004 WL 419274 (U.S.)
END OF DOCUMENT

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For Opinion See 124 S.Ct. 2117, 124 S.Ct. 1131, 124 S.Ct. 835, 124 S.Ct. 383
U.S.,2004. Supreme Court of the United States. David NELSON, Petitioner, v.
Donal CAMPBELL, Commissioner, Alabama Department of Corrections, et al., Respondents. No. 03-6821. February 4, 2004.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Brief of Laurie Dill, M.D., Frank Gogan, M.D., Gary Kalkut, M.D., Mark C.D. Mitchell, M.D., Jane Mobley, M.D., & William Winternitz, M.D. as
Amici Curiae in Support of Petitioner Jason BrownGeorge H. Kendall(Counsel of Record)Laura A. Fernandez Allison G. KortHolland & Knight, LLP195 Broadway, 24th FloorNew York, New York 10007(212) 513-3200Counsel for Amici Curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES ... ii
INTEREST OF THE AMICI CURIAE ... 1
STATEMENT ... 2
ARGUMENT ... 3
1. The Cut-Down Procedure is an Invasive Surgical Procedure That Requires Appropriate Safeguards ... 4
2. Less Intrusive and Safer Procedures Are Available ... 7
3. The Record Fails To Show That A Suitable Plan Is In Place Or That Appropriate Alternatives Have Been Considered ... 8

4. The Record Does Not Establish That Dr. Sonnier Is Competent To Perform Cut-Down ... 9
CONCLUSION ... 10
*ii TABLE OF AUTHORITIES
Cases:
Barrette v. Hight, 230 N.E. 2d 808 (Mass. 1967) ... 6
Crawford County State Bank v. Grady, 514 N.E. 2d 532 (Ill. App 4 Dist. 1997) ... 6
Edwards v. Our Lady of Lourdes Hosp., 526 A. 2d 242 (N.J. Super. A.D. 1987) ... 6
Other Authorities:
Steven C. Dronen and Patricia Lanter, Venous Cutdown, in Roberts: Clinical Procedures in Emergency Medicine, (James R. Roberts & Jerris R. Hedges eds., 3d. ed. 1998) ... 4, 5, 7
Sam C. Eggertsen, MD, Teaching Venous Cutdown Techniques with Models , 16 (6) J. Fam. Pract. 1165, 1165 (1983) ... 8
Gray's Anatomy (Carmine D. Clemente ed; 30th ed. 1989) ... 9
David C. McGee, M.D., and Michael K. Gould, M.D., Preventing Complications of Central Venous Catherization , 348 N. Engl. J. Med. 1123, 1128 (2003) ... 5
Bruce B. McIntosh, MD, and Scott A. Dulchavsky, MD, Peripheral Vascular Cutdown , 8 (4) Crit. Care Clin. 807, 808 (1992) ... 7, 8
*iii Tracey Tay, Venous Cutdown, in The Liverpool Hospital Manual of Trauma Care (Scott K. D'Amours et al. eds., 6th ed. 2002) ... 7
Venous Cut Down: A Quicker and Safer Technique (visited Jan. 20, 2004), The Royal College of Surgeons, Surgical Knowledge and Skills Website

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<http:// www.edu.rcsed.ac.uk/operations/op4.htm> ... 5, 8, 9
*1 INTEREST OF THE AMICI CURIAE[FN1]
FN1. This brief was not written in whole or in part by counsel for any party, and no person or entity other than the amici curiae and their counsel has made any monetary contribution to the brief's preparation or submission. The parties have consented to the filing of this brief in letters on file with the Clerk.
Each of the amici curiae is a medical doctor.[FN2] Our practices require us to be familiar with current practices in obtaining intravenous access, including the surgical procedures necessary to gain access to central veins.
FN2. Laurie Dill, M.D., practices internal medicine in Montgomery, Alabama, and has been a physician for 17 years. Frank Gogan, M.D., has practiced general medicine in Montogmery, Alabama, and has been a physician for 23 years. Gary Kalkut, M.D., has practiced internal medicine in New York City for 20 years, and has several years of experience in providing medical services to prisoners. Mark C.D. Mitchell practices emergency medicine in Daphne, Alabama, and has been a physician for 21 years. Jane Mobley practices internal medicine in Birmingham, Alabama, and has been a physician for 17 years. William Winternitz practices internal medicine in Tuscaloosa, Alabama, and has been a physician for 26 years.
The underlying dispute in this matter concerns the State of Alabama's intent to utilize a medical procedure known as a “cut-down” in a non-surgical setting in order to gain access to a functional vein, and thus enable the Petitioner's execution by lethal injection. We understand that the Court is concerned principally with how a challenge to such a procedure may be brought, and we offer no view on that question. We do, however, write briefly to set

forth current medical standards for gaining intravenous access in individuals who have compromised veins.
*2 STATEMENT
This matter arises from an order of the Alabama Supreme Court that the Petitioner, David Nelson, be executed by lethal injection. In the weeks leading up to Nelson's October 9, 2003 execution date, the parties became aware that Nelson's poor vein structure made peripheral venous access in his hands and arms impracticable. Thereafter, the Warden of Holman Prison informed Nelson and his counsel that in order to gain adequate access, the State would attempt a cut-down procedure to locate an adequate vein in Nelson's upper thigh or arm.
Shortly before the scheduled execution, Nelson filed the instant suit, asserting that the State's employment of a cut-down procedure, in a prison setting, and under the circumstances outlined by the Warden, was both reckless because of the irresponsible manner in which the State was proposing to conduct the procedure, and unnecessary because of less painful, less traumatic and safer alternatives.
Nelson supported his claims with the affidavit of a Board Certified anesthesiologist, Mark Heath, M.D. Dr. Heath asserted the cut down is a potentially risky surgical procedure. He described the procedure as painful and disturbing, specifically the smoke, odor, as well as the buzzing and sizzling noises that can result from cautery. JA 32. Dr. Heath indicated that cut-down procedures are usually performed under deep sedation, with the administration of potent intravenous analgesics (drugs that block pain), because otherwise they would be extraordinarily disturbing and distressing. Id. Finally, he asserted that a cut-down procedure is a procedure that should be performed only by a physician or practitioner who is specifically trained and credentialed to perform that procedure. JA 32-33. Moreover, given the near universal*3 adoption of superior techniques, Dr. Heath explained there is no comprehensible reason for the State of Alabama to employ the cut-down procedure to obtain intraven-

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ous access. JA 37.
The State countered with affidavits from the Warden and a medical doctor, Marc Sonnier. J.A. 90-94. The Warden explained that the State was now prepared to use the cut-down procedure in the event that access to veins in the thigh and neck proved unavailable, and that an unidentified medical doctor would perform any of the needed procedures. J.A. 93-94. He further stated that if the cutdown procedure was utilized, Nelson would be given local anesthesia. J.A. 94. Dr. Sonnier explained that he was familiar with each procedure outlined by the Warden and that none of the procedures, if performed in the prison setting, would pose any significant risk to Nelson. J.A. 90-91.
The parties disagree profoundly upon the nature of the cut-down procedure and adequacy of the state's plan to employ it. We offer this brief to advise the Court on these areas of dispute.
ARGUMENT
From our experience and training, the disputed issues do not present close questions. The Petitioner has fully and fairly described how current medical practice views the appropriate use of cut-down procedures, and why the State's hastily assembled plan to utilize it is sharply inconsistent with such practice.
*4 1. The Cut-Down Procedure is an Invasive Surgical Procedure That Requires Appropriate Safe-
guards
The cut-down procedure is an accepted medical procedure when conducted in the correct setting, by a properly trained physician, and where less intrusive procedures are unavailing. “Venous cutdown is contraindicated when less invasive alternatives exist or when excessive delay would be required for the procedure to be performed.” Steven C. Dronen and Patricia Lanter, Venous Cutdown, in Roberts: Clinical Procedures in Emergency Medicine, (James R. Roberts & Jerris R. Hedges eds., 3d. ed. 1998).

“Performance of a rapid, effective cutdown can be achieved only by thorough knowledge of the procedure and attention to its many details.” Id. There are a host of reasons why cut-down must be performed in the correct setting, and by an adequately trained physician. The ultimate objective of the procedure is to go deeply into an arm, leg, or chest to locate large, uncompromised veins. “Detailed knowledge of anatomy is imperative to the success of this procedure.” Id. Moreover, “[t]he choice of a particular vein should be governed by its accessibility and size and by the physician's experience and training.” Id. Skill and practice are especially important in cut-down procedures, because they require cutting through tissue, fat, and muscle; such deep invasion breaches small arteries and causes bleeding.

Given the nature of the procedure, there are numer-

ous possible complications that the physician must

take precautions to avoid. See id. Whenever deep

incisions are made, there is a clear risk of rupturing

large blood vessels. Such a breach can cause a

severe hemorrhage. When the procedure is used in

the neck area, two additional risks arise: cardiac

dysrhythmia, an abnormality of *5 the electrical

activity of the heart, and pneumothorax, which in-

duces the sensation of suffocation. See Venous Cut

Down: A Quicker and Safer Technique (visited Jan.

20, 2004), The Royal College of Surgeons, Surgical

Knowledge

and

Skills

Website

<http://www.edu.rcsed.ac.uk/operations/op4.htm>.

Cutdown also causes significant physical pain and

obvious psychological and emotional stress. “An

indirect but significant complication is deterioration

of an unstable patient during a time-consuming cut-

down attempt.” Steven C. Dronen and Patricia

Lanter, supra.

Because of these and other risks,[FN3] it is necessary that this procedure take place in a hospital or otherwise appropriate medical setting. All of the complications that can arise require ready access to equipment found only in the hospital setting, and to trained staff who can competently assist the physician.[FN4] In the absence of sufficient, qualified, available staff and other doctors, a physician would

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lack the assistance necessary to deal adequately with complications as they arose.
FN3. The complications of venous cutdown include local hematoma and infection, sepsis, phlebitis, embolization, wound dehiscence, and injury to associated structures. Steven C. Dronen and Patricia Lanter, Venous Cutdown, in Roberts: Clinical Procedures in Emergency Medicine, (James R. Roberts & Jerris R. Hedges eds., 3d. ed. 1998).
FN4. For instance, acceptable protocol requires that “[i]f a physician is unable to insert a catheter after three attempts, he or she should seek help rather than continue to attempt the procedure. The incidence of mechanical complications after three or more insertion attempts is six times the rate after one attempt.” David C. McGee, M.D., and Michael K. Gould, M.D., Preventing Complications of Central Venous Catherization, 348 N. Engl. J. Med. 1123, 1128 (2003).
It is also accepted practice that cut-down procedures should be performed by physicians who have specialized *6 training in the area.[FN5] “As with most medical procedures, the level of experience of the physician reduces the risk of complications.” McGee and Gould, at 1128. This is not a procedure that all physicians would feel comfortable performing, and the risk of complication or error is significantly lessened when skilled, trained physicians perform the procedure.[FN6] “[Even] insertion of a catheter by a physician who has performed 50 or more catherizations is half as likely to result in a mechanical complication as insertion by a physician who has performed fewer than 50 catherizations.” McGee and Gould, at 1128.
FN5. Emergency medicine, surgery, anesthesiology and cardiology are the four areas of medicine most likely to provide doctors with experience in cut-down procedure. Doctors outside of these specialties

may well have never performed a cutdown.
FN6. Case law includes numerous examples of how inexperience and lack of skill in cut-down procedure can lead to devastating pain and suffering in patients. See, e.g., Crawford County State Bank v. Grady, 514 N.E. 2d 532 (Ill. App 4 Dist. 1997) (multiple cut downs on leg cause swelling and eventual gangrene in foot; foot is later amputated); Edwards v. Our Lady of Lourdes Hosp., 526 A. 2d 242 (N.J. Super. A.D. 1987) (after cut down, inexperienced physician inserts catheter in artery, not vein; right leg is later amputated at the hip after gangrene develops); Barrette v. Hight, 230 N.E. 2d 808 (Mass. 1967) (during cut down by inexperienced doctor, lateral nerve in arm is severed and median nerve is damaged).
Moreover, to lessen the pain, trauma and anxiety of the patient, it is also accepted practice that a general anesthesia or deep sedation be utilized. Many, if not most patients are profoundly traumatized by the sight of copious amounts of their own blood, and by the pungent odors that arise from such procedures as cautery.
We believe that any competent physician, if asked to support the State's plan to resort to the cut-down under the instant conditions-without the guarantee of adequate equipment, a certified and trained practitioner to perform *7 the procedure, licensed medical support staff, and a surgical environment, and without having first ruled out the safer, far less painful preferred procedures-would refuse. For all of the foregoing reasons, a cut-down procedure should not be utilized in a prison environment unless it is fully equipped to provide safe surgery.
2. Less Intrusive and Safer Procedures Are Available
Modern medicine provides the State of Alabama with plainly superior options. Indeed, we believe most trained physicians, in the absence of normal

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peripheral venous access, would only resort to a cut-down after definitively ruling out the other, safer, less invasive procedures.
These preferred procedures are well established. “[A] method of rapid fluid infusion that is technically easier and faster than venesection is the percutaneous insertion of large-bore introducer devices into the subclavian, internal jugular, or femoral veins.” Steven C. Dronen and Patricia Lanter, Venous Cutdown, in Roberts: Clinical Procedures In Emergency Medicine, (James R. Roberts & Jerris R. Hedges eds., 3d. ed. 1998). “Venous cutdown is only indicated where more rapid and less invasive venous access is not obtained. Options include cannulation of the femoral vein or neck veins ….” Tracey Tay, Venous Cutdown, in The Liverpool Hospital Manual of Trauma Care (Scott K. D' Amours et al. eds., 6th ed. 2002). Medical professionals throughout the country are familiar with these preferred procedures, the most common of which, percutaneous central line placement, utilizes a hollow needle and a wire to secure access. Because percutaneous techniques are far less invasive, they carry none of the risks of the cut-down procedure, and are far less painful, less traumatic, and easier for the physician to master. As a result, “[p]ercutaneous alternatives should be *8 exhausted or prohibited prior to contemplating a peripheral cutdown.” Bruce B. McIntosh, MD, and Scott A. Dulchavsky, MD, Peripheral Vascular Cutdown, 8 (4) Crit. Care Clin. 807, 808 (1992).
3. The Record Fails To Show That A Suitable Plan Is In Place Or That Appropriate Alternatives Have
Been Considered
While the record shows that Nelson requested the State's plan for addressing Nelson's condition, and asked that it consider alternatives to the cut-down procedure, the record strongly suggests that no suitable plan exists and that no such consideration was given. The Warden's affidavit explains clearly that the State's plan, which does not include percutaneous central line placement, was conceived after Nelson brought the instant litigation, and that as yet unnamed medical personnel are prepared to carry

out the procedures. J.A. 90-91.
There is nothing in this record that suggests that percutaneous central line placement would fail. Given this fact, there is no medical reason to utilize the significantly more dangerous cut down procedure.[FN7]
FN7. “A peripheral venous cutdown is not the primary consideration in most patients who require vascular access. It is specifically indicated, however, in patients who lack adequate peripheral access and who are not candidates for percutaneous central venous access.” Bruce B. McIntosh, MD, and Scott A. Dulchavsky, MD, Peripheral Vascular Cutdown, 8 (4) Crit. Care Clin. 807, 807 (1992) (emphasis added). “If an intravenous line cannot be established percutaneously, and if a subclavian (or internal jugular) catherization is not appropriate to the clinical situation, a venous cutdown is indicated ….” Sam C. Eggertsen, MD, Teaching Venous Cutdown Techniques with Models, 16 (6) J. Fam. Pract. 1165, 1165 (1983) (emphasis added). “Venous cut down is an emergency procedure … [and an] effective option for venous access in multisystem trauma and hypovolemic shock, when peripheral cannulation becomes difficult or impossible.” Venous Cut Down: A Quicker and Safer Technique (visited Jan. 20, 2004), The Royal College of Surgeons, Surgical Knowledge and Skills Website <http:// www.edu.rcsed.ac.uk/operations/op4.htm> (emphasis added). *9 4. The Record Does Not Establish That Dr. Sonnier Is Competent To Perform Cut-Down
Finally, while the Warden did not confirm that Dr. Sonnier would supervise or conduct the invasive procedures outlined in their affidavits, we note that there are significant reasons to question whether Dr. Sonnier possesses the requisite experience and training adequately and safely to perform a cutdown procedure. At no point does he describe his

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background and training in sufficient detail to establish that he possesses such training and experience. Our confidence in his experience is not strengthened by his claim that he has previously attached an intravenous line “to the external carotid vein located in the neck,” and his assertion that the saphenous vein is in the arm. J.A. 91. Humans do not have an external carotid vein in their neck nor a saphenous vein in their arm. Grays Anatomy, at 816-26; 845-50 (Carmine D. Clemente ed., 30th ed. 1984). Further, it appears that it was the Warden, and not Dr. Sonnier, who determined the procedures that would be used. The selection of a method to gain access to a non-compromised vein should be made by the doctor, and only after he or she has performed a full examination of the patient. There is no evidence that Dr. Sonnier has performed such an examination.
*10 Conclusion
If a special medical procedure is necessary to locate a functional vein, the procedure should comply with accepted medical practice. The deficient plan proposed by the State of Alabama in this instance falls far short of those practices.
U.S.,2004. David NELSON, Petitioner, v. Donal CAMPBELL, Commissioner, Alabama Department of Corrections, et al., Respondents. 2004 WL 234123 (U.S.)
END OF DOCUMENT

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For Opinion See 124 S.Ct. 2117, 124 S.Ct. 1131, 124 S.Ct. 835, 124 S.Ct. 383
U.S.,2004. Supreme Court of the United States. David L. NELSON, Petitioner, v.
Donal CAMPBELL, Commissioner, Alabama Department of Corrections, et al., Respondents. No. 03-6821. January 22, 2004.
On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit
Brief for Petitioner Michael Kennedy McIntyre [FN*]H. Victoria Smith507 The Grant Building44 Broad Street, N.W.Atlanta, GA 30303404-688-0900 Bryan A. Stevenson LaJuana DavisEqual Justice Initiativeof Alabama122 Commerce StreetMontgomery, AL 36104334-269-1803Counsel for PetitionerDavid L. Nelson
FN* Counsel of Record QUESTION PRESENTED
Whether a complaint brought under 42 U.S.C. Sec. 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. Sec. 2254?
*ii TABLE OF CONTENTS
QUESTION PRESENTED ... i
TABLE OF CONTENTS ... ii
TABLE OF AUTHORITIES ... iv
OPINIONS BELOW ... 1
JURISDICTION ... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ... 1
STATEMENT OF THE CASE ... 4
SUMMARY OF THE ARGUMENT ... 13
ARGUMENT ... 16
I. SERIOUS CONSTITUTIONAL ISSUES MAY EMERGE CONCERNING THE PROCEDURE FOR PUTTING AN INDIVIDUAL CONDEMNED PRISONER TO DEATH - AS THEY EMERGED HERE - AFTER THAT PRISONER'S FEDERAL HABEAS CORPUS PROCEEDINGS HAVE BEEN COMPLETED ... 16
II. THE FAILURE TO PROVIDE ANY REMEDY FOR EIGHTH AMENDMENT VIOLATIONS IN THESE UNUSUAL SITUATIONS WOULD OFFEND LONGSTANDING TRADITIONS OF JUSTICE AND RAISE GRAVE CONSTITUTIONAL QUESTIONS THAT CAN READILY BE AVOIDED BY A PROPER INTERPRETATION OF THE APPLICABLE FEDERAL STATUTES ... 19
*iii III. UNDER A PROPER CONSTRUCTION OF 28 U.S.C. § 2244(b) AND 42 U.S.C. § 1983, A FEDERAL COURT DOES NOT INVARIABLY LOSE JURISDICTION TO ENTERTAIN AN OTHERWISE COGNIZABLE § 1983 ACTION SIMPLY BECAUSE THE PLAINTIFF HAS PREVIOUSLY SOUGHT FEDERAL HABEAS CORPUS RELIEF ON UNRELATED GROUNDS ... 24
IV. WHEN A PREVIOUSLY UNAVAILABLE CLAIM THAT DOES NOT INVALIDATE A CONVICTION OR SENTENCE IS OTHERWISE COGNIZABLE UNDER § 1983 - AS IS MR. NELSON'S - A FEDERAL COURT IS NOT JURISDICTIONALLY BARRED FROM REVIEWING THE CLAIM SIMPLY BECAUSE THE CLAIMANT IS A PRISONER WHO HAS COMPLETED FEDERAL HABEAS CORPUS PROCEEDINGS ... 29

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V. IF RECHARACTERIZATION OF MR. NELSON'S § 1983 COMPLAINT IS PROPER, THE COMPLAINT SHOULD BE ENTERTAINED AS A FEDERAL HABEAS CORPUS PETITION BY THE DISTRICT COURT WITH NO NEED FOR PRIOR AUTHORIZATION BY THE COURT OF APPEALS BECAUSE IT IS NOT A SECOND OR SUCCESSIVE HABEAS CORPUS APPLICATION WITHIN THE MEANING OF 28 U.S.C. § 2244(b) ... 36
CONCLUSION ... 38
*iv TABLE OF AUTHORITIES
Cases
Alden v. Maine, 527 U.S. 706 (1999) ... 21
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ... 21
Boyd v. United States, 304 F.3d 813 (8th Cir. 2002) ... 26
Bryan v. Moore, 528 U.S. 960 (1999) ... 17
Crowell v. Benson, 285 U.S. 22 (1932) ... 22
Dunlap v. Litscher, 301 F.3d 873 (7th Cir. 2002) ... 26
Dunn v. Cockrell, 302 F.3d 491 (5th Cir. 2002) ... 26
Duvall v. Keating, 162 F.3d 1058 (10th Cir. 1998) ... 34
Estelle v. Gamble, 429 U.S. 97 (1976) ... 30
Farris v. United States, 333 F.3d 1211 (11th Cir. 2003) ... 27
Felker v Turpin, 101 F.3d 657 (11th Cir. 1996) ... 27
Felker v. Turpin, 518 U.S. 651 (1996) ... 22, 25
Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992) ... 21

Fugate v. Dep't of Corr., 301 F.3d 1287 (11th Cir. 2002) ... 27
Furman v. Georgia, 408 U.S. 238 (1972) ... 16, 17
Gilreath v. State Bd. of Pardons and Paroles, 273 F.3d 932 (11th Cir. 2001) ... 28
Gitten v. United States, 311 F.3d 529 (2d Cir. 2002) ... 26
Gonzalez v. Sec'y for Dep't of Corr., 326 F.3d 1175 (11th Cir. 2003) ... 27
Gregg v. Georgia, 428 U.S. 153 (1976) ... 16
*v Heck v. Humphrey, 512 U.S. 477 (1994) ... 32, 33, 34
Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997) ... 27
Hope v. Pelzer, 536 U.S. 730 (2002) ... 16
Hutto v. Finney, 437 U.S. 678 (1978) ... 30
I.N.S. v. St. Cyr, 533 U.S. 289 (2001) ... 22
International Ass'n of Machinists v. Street, 367 U.S. 740 (1961) ... 22
In re Kemmler, 136 U.S. 436 (1890) ... 16, 17
Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838) ... 21
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ... 22
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) ... 16
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ... 14, 21
In re Medina, 109 F.3d 1556 (11th Cir. 1997) ... 26, 27
Mobley v. Head, 306 F.3d 1096 (11th Cir. 2002) ... 27

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Monell v. Dep't of Soc. Services, 436 U.S. 658 (1978) ... 31
Monroe v. Pape, 365 U.S. 167 (1961) ... 31
Nelson v. Alabama, 292 F.3d 1291 (11th Cir. 2002) ... 4
Nelson v. Campbell, 124 S. Ct. 383 (2003) ... 13
Nelson v. Campbell, 286 F. Supp. 2d 1321 (M.D. Ala. 2003) ... 1, 19, 20
Nelson v. Campbell, 347 F.3d 910 (11th Cir. 2003) ... passim
Nelson v. Nagle, 995 F.2d 1549 (11th Cir. 1993) ... 4
*vi Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) ... 34
Preiser v. Rodriguez, 411 U.S. 475 (1973) ... 23, 24, 31, 32
In re Provenzano, 215 F.3d 1233 (11th Cir. 2000) ... 26, 29
Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999) ... 17
Rodwell v. Pepe, 324 F.3d 66 (1st Cir. 2003) ... 26
Rose v. Lundy, 455 U.S. 509 (1982) ... 28
Slack v. McDaniel, 529 U.S. 473 (2000) ... 28
Spivey v. State Bd. of Pardons and Paroles, 279 F.3d 1301 (11th Cir. 2002) ... 28, 34
Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) ... passim
Thompson v. Calderon, 151 F.3d 918 (9th Cir. 1998) ... 26
United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366 (1909) ... 22
United States v. C.I.O., 335 U.S. 106 (1948) ... 22

United States v. Castro, 124 S. Ct. 786 (2003) ... 22
United States v. Winestock, 340 F.3d 200 (4th Cir. 2003) ... 26
Wilkerson v. Utah, 99 U.S. 130 (1878) ... 16
Wilson v. United States Dist. Court for the N. Dist. of California, 161 F.3d 1185 (9th Cir. 1998) ... 34
Wolff v. McDonell, 418 U.S. 539 (1974) ... 32, 33, 34
Workman v. Bell, 227 F.3d 331 (6th Cir. 2000) ... 27
Ex parte Young, 209 U.S. 123 (1908) ... 21
Young v. Hayes, 218 F.3d 850 (8th Cir. 2000) ... 34
*vii Statutes
28 U.S.C. § 1254(1) ... 1
28 U.S.C. § 1343 ... 2
28 U.S.C. § 2241 ... 2
28 U.S.C. § 2244(b) ... passim
28 U.S.C. § 2254 ... 3
42 U.S.C. § 1983 ... passim
Ala. Code § 15-18-82.1 (2002) ... 4
Ala. Code §15-18-82 (1975) ... 5
Miscellaneous
Frank H. Netter, M.D., Atlas of Human Anatomy (Arthur F. Dalley II, Ph.D., ed., 2d ed. 1997) ... 10
*1 OPINIONS BELOW
The opinion of the United States Court of Appeals for the Eleventh Circuit is reported at Nelson v. Campbell, 347 F.3d 910 (11th Cir. 2003). J.A. 118. The opinion of the United States District Court for the Middle District of Alabama is reported at Nelson v. Campbell, 286 F. Supp. 2d 1321 (M.D. Ala.

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2003). J.A. 105.
JURISDICTION
The judgment of the Court of Appeals for the Eleventh Circuit was entered on October 8, 2003. J.A. 118. A timely petition for rehearing en banc was denied on October 9, 2003. J.A. 129. The petition for writ of certiorari was filed on October 9, 2003, and was granted on December 1, 2003. J.A. 132. This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Eighth Amendment to the United States Constitution provides in relevant part: [N]or [shall] cruel and unusual punishments [be] inflicted.
The Fourteenth Amendment to the United States Constitution provides in relevant part: No State shall … deprive any person of life [or] liberty … without due process of law….
*2 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
28 U.S.C. § 1343 provides in pertinent part: (a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: .... (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of cit-

izens or of all persons within the jurisdiction of the United States….
28 U.S.C. § 2241 provides in pertinent part: (a) Writs of habeas corpus may be granted by … the district courts … within their respective jurisdictions. .... (c) The writ of habeas corpus shall not extend to a prisoner unless .... *3 (3) He is in custody in violation of the Constitution or laws or treaties of the United States….
28 U.S.C. § 2244(b) provides in pertinent part: (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254 provides in pertinent part: (a) [A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
*4 STATEMENT OF THE CASE
In 1994, David Nelson implored a Jefferson County, Alabama, trial jury and circuit court judge to sentence him to death.[FN1] As he requested, a death sentence was imposed. Nelson v. Alabama, 292 F.3d 1291, 1293-94 (11th Cir. 2002).

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FN1. Mr. Nelson's 1980 capital murder conviction had been affirmed in a prior federal habeas corpus application but his death sentence had been reversed. Nelson v. Nagle, 995 F.2d 1549 (11th Cir. 1993).
Mr. Nelson sought to waive his appeals and have an execution date set. Id. at 1294. After repeated remands in the Alabama courts as a result of a deficient sentencing order, Mr. Nelson's death sentence was affirmed on appeal. Mr. Nelson did not file an appeal brief in either the Alabama Court of Criminal Appeals or the Alabama Supreme Court. Id. He did subsequently challenge his death sentence in a federal habeas corpus application which was denied by the district court; and that court's ruling was affirmed by the Eleventh Circuit Court of Appeals on June 3, 2002. Id.
Throughout all of the foregoing proceedings, and as of the time of final disposition by the Eleventh Circuit of Mr. Nelson's single federal habeas corpus petition, the sole method of executing death sentences prescribed by Alabama law was electrocution. On July 1, 2002, the Alabama legislature changed the mode of execution from electrocution to lethal injection. Ala. Code § 15-18-82.1 (2002).
On April 4, 2003, the Alabama Attorney General's office moved the Alabama Supreme Court to set an *5 execution date for Mr. Nelson. J.A. 81. In response to this request, Mr. Nelson sent a letter to the Attorney General informing the State that Mr. Nelson had “no plans to contest your motion filed with the court,” and “I conclude and agree with you that an execution date should be set promptly by the court in the immediate future.” J.A. 89. On September 3, 2003, the Alabama Supreme Court scheduled Mr. Nelson's execution for October 9, 2003. Mr. Nelson was to be executed by lethal injection.
Mr. Nelson has severely compromised veins and has encountered repeated problems over the last two decades with prison medical personnel gaining venous access during routine physical examinations. J.A. 7. Prompted by concerns about Mr. Nelson's physical problems, counsel for Mr. Nelson

contacted the Holman Correctional Facility Warden, Grantt Culliver, in August 2003.[FN2] Counsel informed Warden Culliver about these problems and expressed concern about the protocol for gaining venous access for the lethal injection procedure.[FN3] J.A. 25-26, 92.
FN2. Mr. Nelson was then housed at the William E. Donaldson Correctional Facility (“Donaldson”) in Bessemer, Alabama, but was slated to be transferred from Donaldson to the Holman Correctional Facility (“Holman”) in Atmore, Alabama, for execution. See Ala. Code §15-18-82 (1975). Subsequent to the setting of Mr. Nelson's execution date by the Alabama Supreme Court on September 3, 2003, the transfer was made. J.A. 7.
FN3. During this conversation, counsel also inquired about the possibility that Mr. Nelson could be electrocuted. Warden Culliver informed her that under state law Mr. Nelson no longer had the option of choosing electrocution instead of lethal injection. J.A. 92-93.
Mr. Nelson's counsel requested that Warden Culliver permit either a private physician hired by Mr. Nelson or a *6 prison physician to examine and consult with Mr. Nelson regarding venous access for the lethal injection. J.A. 8. Alternatively, counsel requested that a private physician be permitted to consult with the prison medical personnel who would be performing any procedures necessary for venous access prior to the execution. J.A. 8-9. Warden Culliver assured Mr. Nelson's counsel that a physician would examine and consult with Mr. Nelson about the execution protocol after Mr. Nelson arrived at Holman for execution. J.A. 26. Counsel additionally requested a copy of the Alabama Department of Corrections' written protocol for execution procedures. J.A. 25-26. Warden Culliver refused to provide information about the execution protocol or about any medical procedure that would have to be performed to gain venous access to Mr. Nelson prior to the execution, including informa-

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tion about the “medical personnel” who would be present during the procedure and Mr. Nelson's execution. J.A. 25-26.
Mr. Nelson arrived at Holman Prison in September 2003, however he was never examined by a physician. J.A. 8. Instead, Warden Culliver and a prison nurse met with Mr. Nelson on two occasions. J.A. 11. During the first meeting, which occurred around September 10, 2003 - one month before Mr. Nelson's scheduled execution date of October 9 Warden Culliver acknowledged that Mr. Nelson lacks superficial peripheral veins adequate to support an intravenous line and that a medical procedure would be necessary to gain venous access prior to the execution. J.A. 10.[FN4]
FN4. The nurse reported to Warden Culliver that “Nelson did not have any veins in his lower arms and hands sufficient to support a direct intravenous line.” J.A. 93.
*7 Warden Culliver initially informed Mr. Nelson that in order to gain venous access, a half-inch incision would be made in Mr. Nelson's arm through which a catheter would be inserted into a vein. Mr. Nelson was informed that this procedure was to take place at least twenty-four hours prior to his execution. J.A. 11. On Friday, October 3, 2003 - less than a week before the execution was scheduled to occur - Warden Culliver informed Mr. Nelson and his counsel that the medical procedure that would be used to gain venous access prior to the lethal injection procedure would require not a half-inch incision, but rather a two-inch incision either in Mr. Nelson's leg or arm, with only a local anesthetic being used. J.A. 12, 54. Warden Culliver further informed Mr. Nelson that instead of being performed twenty-four hours prior to the execution, this procedure would begin one hour before the execution. J.A. 12. In describing the procedure to Mr. Nelson's counsel, Warden Culliver claimed that it was not a “cut-down” procedure. J.A. 12.
Mr. Nelson's execution was to be the first time the State of Alabama would ever undertake to perform a medical procedure prior to the execution in order

to gain venous access.[FN5] J.A. 10. At no point prior to the filing of the present lawsuit did the State commit to using qualified medical personnel to perform the potentially dangerous procedure needed to gain venous access to Mr. Nelson, *8 despite Mr. Nelson's requests for such assurance.[FN6] Prompted by growing concerns aroused by the increasingly apparent likelihood that the State of Alabama had no written medical procedures for gaining venous access prior to the execution of a condemned inmate, on Friday, October 3, 2003, Mr. Nelson's counsel again contacted the Department of Corrections, by both telephone and facsimile, in another effort to gain access to the State's protocol for the lethal injection procedure and the medical procedure that would have to be implemented to gain venous access to Mr. Nelson. J.A. 27. On Friday, October 3, 2003, this request was once again denied. J.A. 28.
FN5. See also Nelson v. Campbell, 347 F.3d 910, 913 n.1 (11th Cir. 2003) (Wilson, J., dissenting) (“the procedure at issue here had never before been implemented in Alabama and prison officials had to craft a special procedure to govern Nelson's execution.”). J.A. 124 n.1.
FN6. Even after the lawsuit had been filed, the State continued to assert - at a hearing in the district court - that “there's no Constitutional requirement that the prisons use a doctor” to perform this medical procedure. J.A. 58.
On the following Monday, October 6, 2003, Mr. Nelson filed the present legal action pursuant to 42 U.S.C. § 1983 to challenge the State's employment of an invasive, painful and unnecessarily torturous medical procedure to gain venous access prior to the lethal injection. Mr. Nelson alleged that the State's refusal to disclose the Alabama Department of Corrections' written protocol for gaining venous access prior to his execution, combined with the State's proposed method for gaining access to his veins to administer the lethal injection, violated his right to be free from cruel and unusual punishment

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under the Eighth Amendment. J.A. 5-23. Mr. Nelson sought an order staying his execution, requiring the defendants to provide him with the protocol that they intended to follow, and directing the defendants to “promulgate a protocol concerning *9 venous access that comports with contemporary standards of medical care and the Eighth Amendment to the United States Constitution.” J.A. 22.
As is evident from counsel's assertions in the district court, Mr. Nelson's challenge was not to lethal injection as a method of execution, but was limited instead to “how the State of Alabama at the present time intends to to [sic] have venous access on Mr. Nelson.” J.A. 69. Mr. Nelson was not “asking ultimately for his execution to be stopped in this suit.” J.A. 70. Indeed, counsel agreed that, if the challenge were successful, “all it's going to do is to provide Mr. Nelson with a procedure prior to his execution that meets the Eighth Amendment.” J.A. 70.
In response to Mr. Nelson's lawsuit, counsel for the defendant state officials (“the State”) acknowledged that “the protocol that is going to be planned for this execution is a little different than the ones that we've had….” J.A. 51. The State's counsel assured the district court that the affidavit of Warden Culliver “outlines that particular protocol” to be employed. J.A. 58. In the district court, the Warden and the State's expert asserted that if venous access could not be obtained in the upper thigh, an attempt would be made to “attach a direct intravenous line to the external carotid vein located in the neck.” J.A. 93, 91. If this failed, the State proposed making a two-inch incision in the front part of the arm in order to “isolate and dissect the saphenous vein….” J.A. 91, 93. However, as Mr. Nelson's medical expert - a licensed physician and boardcertified practicing anesthesiologist and assistant professor of clinical anesthesiology at Columbia University College of Physicians and Surgeons - reported to the court by affidavit, humans do not have an external carotid vein *10 in the neck.[FN7] And it is common medical knowledge that the saphenous vein is not located in the arm but in the leg.[FN8]

FN7. “The ‘external carotid vein’ does not exist in human beings.” J.A. 99.
FN8. Frank H. Netter, M.D., Atlas of Human Anatomy 510 (Arthur F. Dalley II, Ph.D., ed., 2d ed. 1997).
The State now described its proposed approach as including a possible “cut-down” procedure. J.A. 87, 91. It said that it would use only a local anesthetic during the “cut-down.” J.A. 87, 91. Mr. Nelson, in turn, presented an affidavit from a medical expert explaining that the “cut-down” procedure is an invasive surgical procedure which, when performed without access to “proper medical equipment and supplies” and without the attendance of “experienced and competent assistance” would be intolerably painful and dangerous. J.A. 34-36. When performed in an attempt to gain venous access in a patient with whom peripheral intravenous access attempts have failed, in the manner proposed by the State, the “cut-down” procedure does not comport with contemporary standards of medical care. J.A. 37. The procedure involves making a series of sharp surgical incisions through the skin, the underlying connective tissue, and layers of fat and muscle, until the region surrounding the large vein is reached. J.A. 31, 36. Mr. Nelson's expert explained, the “cut-down” procedure that the State proposed performing utilizing only a local anesthetic is “usually performed under deep sedation … because it would otherwise be an extraordinarily disturbing and distressing experience.” J.A. 32. In Mr. Nelson's case, a “cut-down” procedure performed on his arm would likely be “technically challenging and painful,” and *11 ultimately “ineffective,” because the veins in his arm are likely “scarred and/or thrombosed (occluded by clot).” J.A. 101.
Complications of the “cut-down” procedure are well-recognized and include severe hemorrhage and pneumothorax, which is the entry of air into the potential space between the lungs and the inner wall of the chest and carries the potential for death by asphyxia and cardiovascular collapse. Other complications include cardiac dysrhythmia, an abnormality of the electrical activity of the heart which

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can lead to shock with accompanying severe chest pain, nausea, and vomiting. “Cut-downs” can also be extremely painful. J.A. 34-36. The likelihood of these complications occurring substantially increases when the procedure is performed by personnel who are not well experienced in such techniques. Any plan that involves subjecting an individual to a “cut-down” procedure in the hands of inexperienced personnel would represent a clear risk of a “medical misadventure and a botched outcome.” J.A. 33.[FN9]
FN9. A “cut-down” procedure also requires proper equipment both to perform the procedure and to treat the potential complications, including (but not limited to) suction, surgical lighting, surgical instruments, cautery, chest tubes, EKG monitors and equipment, and a defibrillator. J.A. 34-36.
Federal District Court Judge Myron Thompson acknowledged that Mr. Nelson's challenge to the medically inept and dangerous surgical procedure which the State intended to employ constituted a valid Eighth Amendment claim. J.A. 113. But Judge Thompson nevertheless dismissed the lawsuit for lack of jurisdiction on the ground *12 that “binding Eleventh Circuit Court of Appeals case law” required him to treat Mr. Nelson's § 1983 complaint as the functional equivalent of a habeas corpus petition. The court declined to assert jurisdiction because Mr. Nelson had previously filed a federal habeas corpus petition and had not sought permission from the court of appeals to file a successive habeas corpus petition under 28 U.S.C. § 2244(b)(3)(A). J.A. 110-12.
On appeal, the Eleventh Circuit Court of Appeals affirmed the jurisdictional dismissal on October 8, 2003, a day before Mr. Nelson's scheduled execution. J.A. 122. The panel majority reasoned: Because Nelson's § 1983 claim was the “functional equivalent” of a second habeas petition and because Nelson did not get our permission to file a second habeas petition prior to filing in the district court as required by 28 U.S.C. § 2244(b)(3)(A), the district

court properly dismissed Nelson's § 1983 claim for lack of jurisdiction to entertain the claim.… Moreover, even had Nelson sought our permission to file a second habeas petition, the facts alleged indicate that Nelson's application would have been denied pursuant to 28 U.S.C. § 2244(b)(2) because his cruel and unusual punishment claim neither “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” nor has a “factual predicate for the claim [that] could not have been discovered previously through the exercise of due diligence … [that] if proven and viewed in light of the evidence as a whole, would be sufficient to establish … that, but for constitutional error, no reasonable *13 factfinder would have found the applicant guilty of the underlying offense.”
(citations omitted). J.A. 121-22. Circuit Judge Charles R. Wilson dissented, emphasizing that Mr. Nelson was not challenging his sentence, because his sentence was “death by lethal injection, not by lethal injection subject to any painful secondary procedure that Alabama state prison officials deem appropriate.” J.A. 125. Therefore, Judge Wilson reasoned that Mr. Nelson's § 1983 claim is not the functional equivalent of a habeas corpus petition, because it “has no bearing on his conviction or his sentence, nor will it ever.” J.A. 127.
On October 9, 2003, Mr. Nelson sought and was denied rehearing en banc, J.A. 129-30, and petitioned this Court for a writ of certiorari and a stay of execution. The Court stayed Mr. Nelson's imminent execution, Nelson v. Campbell, 124 S. Ct. 383 (2003), and on December 1, 2003, granted certiorari limited to the question whether a death row inmate's § 1983 action should be treated as a habeas corpus petition subject to the procedures required for filing successive petitions under 28 U.S.C. § 2244(b)(3)(A). J.A. 132-33.
SUMMARY OF THE ARGUMENT
The Eighth Amendment prohibits the unnecessary and wanton infliction of pain. It permits sentences

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of death to be carried out, but not in a manner that is more torturous than necessary to extinguish life. As in Mr. Nelson's case, the fact that a proposed means of execution may cause an individual condemned prisoner to suffer needless torment in violation of the Eighth Amendment may occasionally come to light after the prisoner has completed federal habeas corpus litigation. The successive-application bar of 28 U.S.C. § 2244(b) does not preclude a federal judicial remedy for such Eighth Amendment violations.
Some remedy for injurious violations of the Constitution must be made available if constitutional rights are to be preserved and given any meaningful existence. The failure to provide any remedy for an Eighth Amendment violation would offend longstanding traditions of justice and raise grave constitutional questions. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). This Court should not sanction a construction of the relevant federal statutes to produce such a result, particularly when there is nothing in the text of the statutes that would support it.
Although there is no basis in statute or in this Court's caselaw, the Eleventh Circuit has embraced an approach that forecloses all forms of relief for a condemned prisoner who seeks to avert a torturous method of execution that is first proposed after the prisoner has completed a federal habeas corpus proceeding, even where the federal action the prisoner then files does not challenge the underlying conviction or sentence and could not previously have been brought. Applying this Eleventh Circuit rule, the federal district court and the court of appeals below improperly concluded that because Mr. Nelson filed the present lawsuit and request for a preliminary injunction after the end of his federal habeas corpus proceedings, his § 1983 claim constituted the “functional equivalent” of a successive habeas corpus petition and was jurisdictionally barred by the preclusion rules of 28 U.S.C. § 2244(b).
The Eleventh Circuit's shielding of unconstitutional conduct from redress by an unsupported reading of § 2244(b) misconstrues the text and purpose of the

statute and ignores this Court's applicable precedent. This Court has held specifically that a lawsuit limited to claims arising for the first time out of the circumstances of a death-sentenced inmate's imminent execution - claims that were premature and unfit for adjudication until just before the execution is carried out - does not constitute a “second or successive” habeas corpus application for purposes of § 2244(b) when it is filed after the denial of habeas corpus relief on an earlier petition challenging the underlying conviction and sentence. Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). Because Mr. Nelson is not repetitively or belatedly challenging the legality of his conviction or sentence or seeking relief from either of them, the Eleventh Circuit below erred in treating his § 1983 action as a successive habeas corpus application that had to satisfy § 2244(b)'s gatekeeping requirements for successive petitions, rather than determining whether he satisfied the requirements for stating a § 1983 claim. Mr. Nelson did not ask the courts below and is not asking this Court to prevent his execution. He asks only that the respondent Alabama prison officials be enjoined from torturing him in the process, in violation of the Eighth Amendment. That prayer for relief is squarely within federal § 1983 jurisdiction.
However, even if this Court concludes that the specific form of relief pleaded by Mr. Nelson, an injunctive action under 42 U.S.C. § 1983, is an inappropriate vehicle for raising legitimate timesensitive Eighth Amendment violations threatened by an unusual execution procedure, it should allow Mr. Nelson to raise those claims in another form, so that basic constitutional rights are not left unprotected empty promises.
ARGUMENT
I. SERIOUS CONSTITUTIONAL ISSUES MAY EMERGE CONCERNING THE PROCEDURE FOR PUTTING AN INDIVIDUAL CONDEMNED PRISONER TO DEATH - AS THEY EMERGED HERE - AFTER THAT PRISONER'S FEDERAL
HABEAS CORPUS PROCEEDINGS HAVE BEEN COMPLETED.

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The Eighth Amendment prohibits the “unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976) (citing Furman v. Georgia, 408 U.S. 238, 392 (1972)). This Court has long held that the Amendment protects prisoners from “the gratuitous infliction of suffering.” Gregg, 428 U.S. at 183 (citing Wilkerson v. Utah, 99 U.S. 130, 135-36 (1878) and In re Kemmler, 136 U.S. 436, 447 (1890));[FN10] see also Hope v. Pelzer, 536 U.S. 730, 738 (2002). In the capital punishment context specifically, this Court has upheld unique execution procedures that raise unusual issues of potential cruelty only after specifically finding that “[t]here is no purpose to inflict unnecessary pain … in [a] proposed execution.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947). Where the measure of pain inflicted in executing a condemned *17 prisoner results from an unusual circumstance that involves “something more than the mere extinguishment of life,” the Eighth Amendment's prohibition against cruel and unusual punishment is obviously implicated. See Furman, 408 U.S. at 265 (quoting Kemmler, 136 U.S. at 447).
FN10. “[P]unishments of torture … and all others in the same line of unnecessary cruelty, are forbidden by … [the Eighth A]mendment.” Wilkerson, 99 U.S. at 136. “Punishments are cruel when they involve torture or a lingering death….” Kemmler, 136 U.S. at 447.
Occasionally, the circumstances giving rise to a constitutional claim of unusual cruelty in the means proposed for conducting an execution do not emerge until shortly before the execution - which will ordinarily be after the condemned prisoner has completed federal habeas corpus proceedings. For example, in Florida, after electrocuted prisoners caught on fire, were burned and charred, and bled excessively during executions, this Court granted certiorari to review the constitutionality of the procedures involved in using Florida's electric chair. See Bryan v. Moore, 528 U.S. 960 (1999), cert. dismissed, 528 U.S. 1133 (2000) (dismissing the writ after Florida amended its execution procedures to provide an alternative method of execution);

Provenzano v. Moore, 744 So. 2d 413, 431-36 (Fla. 1999) (Shaw, J., dissenting) (describing the executions of three Florida prisoners), cert. denied, 528 U.S. 1182 (2000). By the time of Bryan, it had become apparent that Florida's condemned prisoners both those who had completed federal habeas corpus proceedings and those who had not - alike faced the possibility of unexpectedly torturous and needlessly painful executions raising serious constitutional concerns that merited federal court review.[FN11]
FN11. The execution of Jimmy Lee Gray in Mississippi similarly exposed the existence of previously unperceived but significant constitutional claims. During his execution by gas, prison officials were forced to clear the room after Mr. Gray's desperate gasps for air during the procedure repulsed witnesses. See Dan Lohwasser, United Press International, Domestic News, September 2, 1983, available in LEXIS, Nexis Library, UPI File. A reporter who witnessed the execution stated that over the course of eight minutes, Mr. Gray's “head dropped and he appeared dead, but each time it snapped up, striking with an audible clang a steel pole running from floor to ceiling behind his seat.” Id. “I thought I had some pretty hard bark on me from being in Vietnam, but I was pretty shook up. There was a steel pole running from the floor to the ceiling behind Gray's chair, and we watched him slam his head into the pole for eight minutes as hard as he could.” See Eileen Keerdoja, A “Civilized” Way to Die?, Newsweek, Apr. 9, 1984, at 106.
*18 Mr. Nelson's case represents an extreme instance of this plight. His federal habeas corpus petition was denied by the district court on August 18, 2000, and its denial was affirmed by the Eleventh Circuit on June 3, 2002. At that time, death sentences in Alabama were carried out by electrocution. On July 1, 2002, Alabama replaced the electric chair with lethal injection as the State's method of

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execution. It was not until September 2003, when Mr. Nelson was brought to Holman Prison to be executed, that the warden in charge of his execution began making plans for ways to accomplish the injection despite the inaccessibility of Mr. Nelson's veins. And it was only during the days immediately preceding Mr. Nelson's scheduled execution date of October 9, 2003, that the warden finally disclosed his plans, and Mr. Nelson learned that they involved the performance of potentially excruciating surgery - a medically ill-defined and inappropriate “cut-down” procedure - which would be conducted without qualified personnel, proper equipment, or adequate anesthesia. Then, when Mr. Nelson filed a civil rights complaint seeking to enjoin this “cut-down” *19 procedure as a violation of the Eighth Amendment, the courts below concluded that they had no jurisdiction to hear such a claim, because his lawsuit had to be treated as a habeas corpus petition and would constitute Mr. Nelson's “second” habeas corpus petition, whereas 28 U.S.C. § 2244(b) limits prisoners in Mr. Nelson's situation to just one.
II. THE FAILURE TO PROVIDE ANY REMEDY FOR EIGHTH AMENDMENT VIOLATIONS IN THESE UNUSUAL SITUATIONS WOULD OF-
FEND LONGSTANDING TRADITIONS OF JUSTICE AND RAISE GRAVE CONSTITUTION-
AL QUESTIONS THAT CAN READILY BE AVOIDED BY A PROPER INTERPRETATION OF THE APPLICABLE FEDERAL STATUTES.
In Mr. Nelson's § 1983 case, the district court forthrightly described the consequences of the “binding Eleventh Circuit”[FN12] rule that it felt compelled to follow in recharacterizing his § 1983 complaint as a habeas corpus petition in order to dismiss it as a “second … application”[FN13] for the writ forbidden by 28 U.S.C. § 2244(b):
FN12. Nelson v. Campbell, 286 F. Supp. 2d 1321, 1324 (M.D. Ala. 2003).
FN13. Id. at 1324 n.13.
The court recognizes that the import of the dismissal of this lawsuit is that Nelson will be effect-

ively left without a federal forum for review of his Eighth Amendment claim. .... The rule that a § 1983 action seeking a stay of execution must be treated as a habeas petition *20 means that, after a death row inmate has filed his first federal habeas petition, he can never obtain a stay of execution from a federal court so that court can review … an Eighth Amendment claim regarding any later decision as to how the execution is to be carried out. The rule means that no matter how meritorious Nelson's claim is, and despite the fact that he could not raise his claim in his earlier habeas petition, there seems to be no way for him to obtain federal relief now.
Nelson v. Campbell, 286 F. Supp. 2d at 1325. The Eleventh Circuit's affirmance of the district court relied upon this rule - that any federal action instigated by a death row prisoner to challenge violations of constitutional rights that occur after the close of his initial federal habeas corpus proceedings must be construed as a successive habeas corpus petition.[FN14]
FN14. The Eleventh Circuit determined that: [b]ecause Nelson's § 1983 claim was the functional equivalent of a second habeas petition and because Nelson did not get our permission to file a second habeas petition prior to filing in the district court as required by 28 U.S.C. § 2244(b)(3)(A), the district court properly dismissed Nelson's § 1983 claim for lack of jurisdiction to entertain the claim. Moreover, even had Nelson sought our permission to file a second habeas petition, the facts alleged indicate that Nelson's application would have been denied pursuant to 28 U.S.C. § 2244(b)(2)…. Nelson v. Campbell, 347 F.3d 910, 912 (11th Cir. 2003) (citations and internal quotations omitted).
As the district court plainly (though politely) implies, such a result is refractory to reason. It is also

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radically at odds with the fundamental tenet of the Anglo-American *21 legal tradition expressed in the maxim ubi jus, ubi remedium - where there's a right there's a remedy - a maxim classically viewed as central to the rule of law. Chief Justice Marshall in Marbury v. Madison quoted Blackstone[FN15] for the proposition that “ ‘it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded,’ ” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803);[FN16] and the Chief Justice added that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Id.
FN15. 3 William Blackstone, Commentaries *23.
FN16. See also, e.g., Ex parte Young, 209 U.S. 123, 165 (1908); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971); Alden v. Maine, 527 U.S. 706, 811-12 (1999) (dissenting opinion of Justice Souter). In Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 66-67 (1992), the Court, after quoting Marbury's reference to Blackstone, added that “it has often been said to involve a monstrous absurdity in a well organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist.” Id. at 67 (quoting Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 624 (1838)).
This is neither a transitory nor a parochial notion.[FN17] It goes to the heart of due process.[FN18] To deprive an individual *22 of recourse to a forum necessary for the vindication of his or her rights and to do so arbitrarily, on the basis of an accident of timing over which she or he had no control, would violate due process. See Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). To construe a statute as having this perverse effect

and to do so “without any clear indication that such was Congress' intent,”[FN19] would create unnecessary and serious constitutional problems under the Due Process Clause; and to construe a silent habeas corpus statute in this manner would create serious Suspension Clause problems as well.[FN20] The Court does not read statutes in this manner.[FN21]
FN17. See, e.g., Article XVIII of the American Declaration of the Rights and Duties of Man: Article XVIII: Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.
FN18. Again in Chief Justice Marshall's words in Marbury, 1 Cranch at 163: The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
FN19. United States v. Castro, 124 S. Ct. 786, 791 (2003).
FN20. See I.N.S. v. St. Cyr, 533 U.S. 289, 300-04 (2001). Because the present case does not involve the use of habeas corpus “to allow a final judgment of conviction in a state court to be collaterally attacked,” Felker v. Turpin, 518 U.S. 651, 663 (1996), the Suspension Clause concern here, as in St. Cyr and Felker, does not require the Court to consider the vexed issue whether “the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789.” Id. at 664.
FN21. See, e.g., United States ex rel. Attorney General v. Delaware & Hudson Co.,

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213 U.S. 366, 407-08 (1909) (when a statute is subject to two interpretations, the construction that saves it from constitutional infirmity will be adopted); Crowell v. Benson, 285 U.S. 22, 62 (1932) (same); United States v. C.I.O., 335 U.S. 106, 120-21 & n.20 (1948) (same); International Ass'n of Machinists v. Street, 367 U.S. 740, 749-50 (1961) (same).
Here there is no need or reason whatsoever to do so. The Eleventh Circuit has turned 28 U.S.C. § 2244(b) on its *23 head with no regard for its text, its manifest purpose, or this Court's prior construction of it. Congress enacted § 2244(b) to prevent state prisoners from using federal habeas corpus proceedings to attack their convictions or their sentences repetitiously or dilatorily. The Eleventh Circuit has converted § 2244(b) into a bar against the provision of any federal forum to a state prisoner who is not attacking either a conviction or a sentence but is seeking one and only one opportunity to present an Eighth Amendment claim of needless cruelty at the first opportunity after the prisoner learns that a state prison official has decided to execute the sentence in a wantonly torturous manner.
That this is a misconstruction of the statute is apparent from any fair reading of Stewart v. MartinezVillareal, 523 U.S. 637 (1998). This Court held in Stewart that a federal habeas corpus petition presenting claims arising in the first instance out of the circumstances of a death-sentenced inmate's imminent execution - claims that were premature and unfit for adjudication until just before the execution was carried out - is not a “second or successive” petition for purposes of § 2244(b) when filed by an inmate who has earlier litigated and lost a habeas corpus proceeding raising claims that challenged the validity of the underlying conviction and sentence. Id. at 644-45. Stewart establishes that even if Mr. Nelson had filed a document captioned as an application for a writ of habeas corpus, it would not have been “a second or successive habeas corpus application” within the meaning of § 2244(b). And this is relevant as well to his entitlement to proceed by way of a civil rights action under 42 U.S.C. §

1983, because the only conceivable bar to such a proceeding would be a drastic extension of the holding in *24Preiser v. Rodriguez, 411 U.S. 475 (1973), that certain sorts of claims should be pursued only through a habeas corpus petition, not under § 1983. But a major reason for that ruling in Preiser was to prevent state prisoners from using § 1983 actions to evade the procedural limitations of federal habeas corpus practice - such as, in the view of the court of appeals in the present case, § 2244(b)'s prohibition of most second and successive petitions. Conversely, if § 2244(b) as construed in Stewart would not bar Mr. Nelson from raising his Eighth Amendment challenge to the “cut-down” procedure in a habeas corpus proceeding, there is no reason to stretch Preiser to cover his case. Mr. Nelson discusses Preiser more fully in section III.A of this brief, and then returns to Stewart in his discussion of the Eleventh Circuit's opinion in section IV.
III. UNDER A PROPER CONSTRUCTION OF 28 U.S.C. § 2244(b) AND 42 U.S.C. § 1983, A FEDERAL COURT DOES NOT INVARIABLY LOSE JURISDICTION TO ENTERTAIN AN OTHERWISE COGNIZABLE § 1983 ACTION SIMPLY BECAUSE THE PLAINTIFF HAS PREVIOUSLY SOUGHT FEDERAL HABEAS CORPUS RELIEF
ON UNRELATED GROUNDS.
The decisions of the courts below precluding Mr. Nelson from consideration of the merits of his Eighth Amendment claim in any form of action rest upon a rule extrapolated from 28 U.S.C. § 2244(b) and progressively extended in a series of Eleventh Circuit cases. The rule is that a state prisoner who has unsuccessfully conducted a habeas corpus proceeding challenging his conviction and sentence cannot file a later legal action, however pleaded in law and in fact, challenging anything done to him in the *25 course of executing that sentence, unless he seeks and receives authorization from the court of appeals to file a “second or successive habeas corpus application” under the largely preclusive standards of § 2244(b).[FN22] The rule allows for no exceptions in the case of prisoners whose claims in the later legal action could not have been presen-

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ted in their earlier habeas corpus proceeding - because, for example, the events giving rise to the claims had not yet occurred and were not foreseeable at the time of that proceeding. Claims of this kind cannot be raised at all in the Eleventh Circuit because, by definition, they are always either too early or too late.
FN22. 28 U.S.C. § 2244(b) requires petitioners who seek to file a “second or successive” habeas corpus petition to first obtain leave from the appropriate court of appeals. 28 U.S.C. § 2244(b)(3)(A). See Felker v. Turpin, 518 U.S. 651 (1996). Authorization can be obtained only if the petition would raise a new claim and if this new claim relies on a new rule of constitutional law made retroactive to cases on collateral review by this Court or else relies on newly discovered evidence which could not have been discovered earlier through the exercise of due diligence and which would establish the petitioner's innocence of the underlying offense by clear and convincing evidence. 28 U.S.C. § 2244(b)(2).
One would suppose that a result so “seemingly perverse” would not be embraced by a court without some strong anchor in the statutory text. Stewart, 523 U.S. at 644. However, there is nothing in the language or the structure of § 2244(b) which remotely suggests that all post-habeas corpus filings are to be construed as successive habeas corpus applications. Nor does the manifest purpose of the statute - to promote finality by forbidding repetitious or dilatory challenges to a state prisoner's conviction or sentence - support the Eleventh Circuit rule deeming claims that could never previously have been *26 raised to be the subjects of a “second or successive application.”
The Eleventh Circuit began its expansion of this doctrine in In re Medina, 109 F.3d 1556 (11th Cir. 1997), when it took the position that, “the provisions of § 2244(b), as amended, operate to foreclose review of competency to be executed claims in second habeas applications,” id. at 1564, even

where such claims could not have been raised in the petitioner's first application. After this Court rejected that position in Stewart v. Martinez-Villareal, the Eleventh Circuit continued to bar competencyto-be-executed claims filed after a first habeas corpus application as “successive” unless the unripe claim was previously raised in the first petition.[FN23] See In re Provenzano, 215 F.3d 1233 (11th Cir. 2000) (holding that Medina forecloses the circuit court from granting a petitioner authorization to file a second habeas corpus petition raising a previously unraised claim of incompetence to be executed).
FN23. This issue was expressly left open by this Court in Stewart, 523 U.S. at 645 n.1.
The Eleventh Circuit has proceeded to extend this rule in a variety of contexts. For example, contrary to most federal circuits,[FN24] the Eleventh Circuit has announced a *27 “bright line rule that the successive-petition restrictions in § 2244(b) apply to all Rule 60(b) motions filed by habeas petitioners.” Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (citation and internal quotations omitted) (emphasis added). See also Felker v. Turpin, 101 F.3d 657, 661 (11th Cir. 1996) (“[w]e hold that the successive petition restrictions contained in the amendments to § 2244(b) apply to Rule 60(b) proceedings”). In In re Medina itself, the court applied the gatekeeping restrictions of § 2244 to bar a Rule 60(b) motion seeking to raise a claim of incompetence to be executed. Medina, 109 F.3d at 1561.[FN25]
FN24. See Rodwell v. Pepe, 324 F.3d 66, 70 (1st Cir. 2003) (Rule 60(b) motion is not automatically a successor under the AEDPA); Gitten v. United States, 311 F.3d 529, 530 (2d Cir. 2002) (same); United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003) (same); Dunn v. Cockrell, 302 F.3d 491, 492 n.1 (5th Cir. 2002) (per curiam) (same); Dunlap v. Litscher, 301 F.3d 873, 875-76 (7th Cir. 2002) (same); Boyd v. United States, 304 F.3d 813, 814

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(8th Cir. 2002) (same); Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (a bright line rule equating all Rule 60(b) motions with successive habeas corpus petitions would be improper). The Sixth Circuit has similarly held that the requirements of § 2244 do not automatically apply to every post-habeas corpus filing. Workman v. Bell, 227 F.3d 331, 334-35 (6th Cir. 2000) (en banc) (addressing motion to recall mandate, court stated that cases of fraud upon the court are excepted from the requirements of § 2244).
FN25. There has been some dissent from the Eleventh Circuit's subjection of all Rule 60(b) motions to § 2244(b) preclusion even “where a Rule 60(b) motion filed by a habeas corpus petitioner is not meant to circumvent 28 U.S.C. § 2244(b), but instead seeks the particular relief which that Federal Rule of Civil Procedure specifically provides.” Mobley v. Head, 306 F.3d 1096, 1102 (11th Cir. 2002) (Tjoflat, J., dissenting), hearing en banc pending as ordered by Gonzalez v. Sec'y for Dept. of Corr., 326 F.3d 1175 (11th Cir. 2003). Judge Tjoflat opined that “it would be a miscarriage of justice if we turned a blind eye to such abuse of the judicial process” even though the claim would not meet the requirements of § 2244. Mobley, 306 F.3d at 1105 (Tjoflat, J., dissenting).
Challenges to cruel and unusual punishment brought under § 1983 have been barred uniformly as successive petitions. See, e.g., Fugate v. Dep't of Corr., 301 F.3d 1287 (11th Cir. 2002) (§ 1983 cruel-and-unusual punishment claim challenging lethal injection had to be treated as second habeas corpus application); *28Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997) (§ 1983 cruel-and-unusual punishment claim challenging electrocution had to be treated as a second habeas corpus application). And in other settings where § 1983 petitioners have sought relief that would not invalidate their conviction or sentence, the Eleventh Circuit has also per-

sistently dubbed the proceeding a banned “second or successive” habeas corpus application. See, e.g., Gilreath v. State Bd. of Pardons and Paroles, 273 F.3d 932 (11th Cir. 2001) (barring § 1983 action challenging clemency procedures as successive petition); Spivey v. State Bd. of Pardons and Paroles, 279 F.3d 1301 (11th Cir. 2002) (same).
There is no basis in statute, authoritative precedent, or logic for this kind of transmogrification of § 2244(b) into an absolute bar against judicial relief for constitutional violations that are raised in a timely manner for the first time when they first arise and become legally actionable. To the contrary, this Court has consistently rejected the view that § 2244(b) bars consideration of the merits of a ripened constitutional claim that was not adjudicated in a prisoner's prior habeas corpus proceeding, noting that to apply § 2244(b) to such claims would undermine sensible habeas corpus practice. Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998); see also Slack v. McDaniel, 529 U.S. 473, 487 (2000) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)) (holding that a federal habeas corpus petition filed after dismissal of an initial filing because the petitioner had failed to exhaust state remedies should not be deemed a second or successive petition, lest “the complete exhaustion rule” become a “trap” for “the unwary pro se prisoner.”). This Court rejected the notion that Congress silently excluded competency-to-be-executed claims from federal habeas corpus review because the prohibition as *29 “successive” of an entire category of never-previously-raised claims would involve an interpretation of § 2244(b) whose “implications for habeas practice would be far reaching and seemingly perverse.” Stewart, 523 U.S. at 644. And the same perverseness would have to be imputed to § 2244(b) to construe it as prohibiting federal habeas corpus review of every possible execution-related constitutional claim - however meritorious - simply because such claims cannot be raised before they become ripe and will be deemed by Eleventh Circuit logic to be “second or successive” if first raised after they become ripe.
IV. WHEN A PREVIOUSLY UNAVAILABLE

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CLAIM THAT DOES NOT INVALIDATE A CONVICTION OR SENTENCE IS OTHERWISE COGNIZABLE UNDER § 1983 - AS IS MR. NELSON'S - A FEDERAL COURT IS NOT JURISDICTIONALLY BARRED FROM REVIEWING
THE CLAIM SIMPLY BECAUSE THE CLAIMANT IS A PRISONER WHO HAS COMPLETED FEDERAL HABEAS CORPUS PRO-
CEEDINGS.
As the State began its preparation for Mr. Nelson's lethal injection, he was informed that he would be subject to the potentially torturous “cut-down” procedure. Counsel ascertained that the law in the Eleventh Circuit foreclosed any access to habeas corpus relief because Mr. Nelson had already completed one federal habeas corpus proceeding. See In re Provenzano, 215 F.3d 1233, 1235-36 (11th Cir. 2000), and the similar cases discussed supra in section *30 III.[FN26] Time being of the essence, counsel sought protection for his client's Eighth Amendment rights through the form of action most likely to proceed quickly through the lower courts: an emergency pleading for relief under 42 U.S.C. § 1983, J.A. 5, with a prayer for “an order granting injunctive relief and staying the Plaintiff's execution.” J.A. 22.
FN26. Counsel's analysis of Eleventh Circuit law was subsequently confirmed by the court of appeals in its opinion below. Nelson v. Campbell, 347 F.3d 910, 912 (11th Cir. 2003) (noting that all claims would have been barred under § 2244(b)).
Section 1983 is an appropriate vehicle for Mr. Nelson's claim. In terms, it authorizes a “suit in equity, or other proper proceeding for redress” against any person who, under color of state law, “subjects or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Mr. Nelson's invocation of the Eighth Amendment to challenge the State's threatened use of a painful, needlessly invasive and potentially traumatic “cut-down” procedure prior to his execution unquestionably pleads a valid cause

of action under 42 U.S.C. § 1983. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). The gist of Mr. Nelson's lawsuit was to require the State of Alabama to use some medically appropriate and humane procedure in extinguishing his life. If, as is clear, § 1983 gives a cause of action for an injunction against state correctional officials who persist in maintaining barbaric conditions of confinement, see, e.g., Hutto v. Finney, 437 U.S. 678 (1978), it can hardly be thought not to give a cause of action for an injunction against state *31 correctional officials who insist on inventing a barbaric method of execution.[FN27]
FN27. The Civil Rights Act was passed “to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise … [the States might deny citizens their] rights, privileges, and immunities guaranteed by the Fourteenth Amendment.” Monroe v. Pape, 365 U.S. 167, 180 (1961), overruled on other grounds by Monell v. Dep't of Soc. Services, 436 U.S. 658 (1978) (municipalities and other local governments are “persons” to whom Civil Rights Act applies). It is precisely this sort of callous indifference that has guided the State's reaction to Mr. Nelson's constitutional concerns throughout. Had there been no federal forum in which Mr. Nelson could seek to hold state officials to constitutional account, it is likely that those officials would never even have given Mr. Nelson any information regarding the potentially torturous procedure devised for his execution. And when they did eventually respond in court by revealing a protocol of the procedure to be used to gain venous access described in affidavits by Warden Culliver and Dr. Marc Sonnier - this protocol still failed to provide information about the qualifications of the personnel to be performing the procedure or the conditions under which it was to be performed. Worse, as Mr. Nelson's medical expert observed in an affidavit in the district court,

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the references by both Warden Culliver and Dr. Sonnier to a body part that does not exist, J.A. 99-100, suggest that “Dr. Sonnier is acting under instruction from Mr. Culliver, and that these instructions include specification of technical medical issues that are likely to be beyond the professional training and credentialing of Mr. Culliver.” J.A. 100. This performance evinces a shocking level of reckless indifference by state authorities to federal constitutional rights.
Although many claims of constitutional rights or immunities in connection with state criminal process can be raised only by a petition for a writ of habeas corpus, see Preiser v. Rodriguez, 411 U.S. 475 (1973), other claims remain squarely within the ambit of § 1983. The decisive question is whether recognition of the claim will necessitate a finding that a state prisoner's underlying conviction or sentence is invalid. If so, then the prisoner must file a *32 habeas corpus petition; the prisoner cannot proceed in a civil action under § 1983. Preiser, 411 U.S. at 500 (“when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”).
Conversely, where, as in Mr. Nelson's case, a claim of unconstitutionality is lodged against procedures deployed or threatened under color of state law that are merely auxiliary to the prisoner's conviction and sentence and can be restrained or corrected without impugning the integrity of the underlying conviction and sentence, then § 1983 relief is available. Wolff v. McDonell, 418 U.S. 539 (1974) (holding that § 1983 was a permissible avenue of relief when adjudication of a prisoner's claim would not undermine the outcome of disciplinary proceedings); see also Heck v. Humphrey, 512 U.S. 477, 487 (1994) (recognizing that state prisoners may seek redress under § 1983 if a judgment in the prisoner's favor would not “necessarily imply” the invalidity of his or her conviction or sentence).

In Heck, this Court analyzed both Preiser and Wolff and made clear where the line between them lies. “Like Preiser, Wolff involved a challenge to the procedures used by state prison officials to deprive prisoners of good-time credits. The § 1983 complaint [in Wolff] sought restoration of good-time credits as well as ‘damages for the deprivation of civil rights resulting from the use of the allegedly unconstitutional procedures.’ ” Heck, 512 U.S. at 482 (quoting Wolff, 418 U.S. at 553). Heck explains Wolff's two-part holding - that the claim for goodtime credits was foreclosed by Preiser but “the damages claim was nonetheless ‘properly before the district court and required *33 determination of the validity of the procedures employed for imposing sanctions, including loss of good-time,’ ” Heck, 512 U.S. at 482 (quoting Wolff, 418 U.S. at 554) as follows: In light of … [Wolff's] earlier language characterizing the claim as one of “damages for the deprivation of civil rights,” rather than damages for the deprivation of good-time credits, we think this passage recognized a § 1983 claim for using the wrong procedures, not for reaching the wrong result (i.e., denying good-time credits). Nor is there any indication in the opinion, or any reason to believe, that using the wrong procedures necessarily vitiated the denial of good-time credits. Thus, the claim at issue in Wolff did not call into question the lawfulness of the plaintiff's continuing confinement.
Heck, 512 U.S. at 482-83.
Mr. Nelson's complaint, like the ones which the Court in Wolff and Heck held cognizable under § 1983, is precisely that Alabama's prison officials are about to violate his Eighth Amendment rights by “using the wrong procedures” (i.e., unnecessarily torturous ones) not that those procedures will produce “the wrong result” (i.e., his death.) Mr. Nelson does not contest the State's right to execute him; he seeks only that the execution be performed humanely. As he has repeatedly stated throughout this § 1983 lawsuit, he does not challenge the State's legal authority to execute him or the constitutionality of his sentence. J.A. 69-70. He challenges nothing more than the gratuitous infliction

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of pain and avoidable suffering that the State's proposed “cut-down” procedure will entail. Since this violation of the Eighth Amendment can and should be remedied without calling into question in any *34 way the validity of his underlying conviction or sentence, he may challenge it in a civil rights injunctive suit under § 1983 under the square holding of Wolff and the explicit analysis in Heck.[FN28]
FN28. Circuit courts elsewhere than in the Eleventh Circuit have followed Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) - which addressed Ohio's clemency procedures in a § 1983 action brought by a death row inmate - in recognizing the legitimacy of § 1983 suits as a vehicle for condemned inmates (including those who have completed federal habeas corpus proceedings) to challenge a State's deprivation of the “minimal” procedural due process rights vouchsafed by Woodard in clemency proceedings, id. at 289. See Young v. Hayes, 218 F.3d 850 (8th Cir. 2000) (granting stay of execution to permit the district court to consider the validity of a challenge to improper state interference in clemency proceedings); Duvall v. Keating, 162 F.3d 1058 (10th Cir. 1998) (upholding a district court's denial on the merits of a death row prisoner's request for a temporary restraining order filed in conjunction with a challenge to clemency procedures while recognizing the legitimacy of § 1983 generally); Wilson v. United States Dist. Court for the N. Dist. of California, 161 F.3d 1185 (9th Cir. 1998) (rejecting state's challenge to a district court's grant of a temporary restraining order staying an execution in a challenge to clemency procedures). Contra, Spivey v. State Bd. of Pardons and Paroles, 279 F.3d 1301 (11th Cir. 2002) (holding that a § 1983 complaint challenging the propriety of clemency proceedings must be recharacterized as a successive habeas corpus application).
Similarly, because Mr. Nelson has not challenged

the lawfulness of his sentence or the State's entitlement to execute him humanely, his § 1983 action to restrain the State from performing an unconstitutionally torturous “cut-down” procedure prior to his execution cannot be fairly regarded as an attempt to “circumvent the rules regarding second or successive habeas petitions.” Nelson v. Campbell, 347 F.3d at 911. Although he requested a preliminary injunctive order staying his execution - a point the Eleventh Circuit Court of Appeals thought *35 particularly significant, see id. at n.4, this request was necessitated solely by the insistence of state officials upon their chosen “cut-down” technique for acquiring venous access, and was not aimed at halting or delaying the execution itself. Even after Mr. Nelson filed his complaint alleging a violation of the Eighth Amendment and seeking a stay, the State had the opportunity to ensure that his execution would proceed on schedule by adopting any procedure for gaining access to his veins that comported with contemporary medical standards for avoiding needless agony and the risk of “medical misadventure and a botched outcome.” J.A. 33. However, the State declined the district judge's request to consider “a procedure that would be acceptable to both sides,” J.A. 73, and thus required that the stay be sought which was eventually granted by this Court.
The stay is, of course, temporary; and that is as Mr. Nelson wishes it to be. For if, in the end, he is permitted to proceed in federal court and there obtains a favorable adjudication of his Eighth Amendment claim, the immediate result will be to let the State execute him and thus accomplish its ultimate objective as well. Under these circumstances it is demonstrably incorrect to say, as the court of appeals below did, that “Nelson's prayer to stay his execution directly impedes the implementation of the state sentence, and is indicative of an effort to accomplish via § 1983 that which cannot [properly] be accomplished by a successive petition for habeas corpus.” Nelson, 347 F.3d at 913 n.4. What is “directly imped[ing] the implementation of the state sentence,” id., in Mr. Nelson's case, and has impeded it from the outset, is Warden Culliver's adamant insistence on a needlessly torturous way of

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*36 accomplishing the fatal result that both Mr. Nelson and the State of Alabama want to see promptly accomplished.
V. IF RECHARACTERIZATION OF MR. NELSON'S § 1983 COMPLAINT IS PROPER, THE COMPLAINT SHOULD BE ENTERTAINED AS A FEDERAL HABEAS CORPUS PETITION BY THE DISTRICT COURT WITH NO NEED FOR PRIOR AUTHORIZATION BY THE COURT OF APPEALS BECAUSE IT IS NOT A SECOND OR SUCCESSIVE HABEAS CORPUS APPLICATION WITHIN THE MEANING OF 28 U.S.C. §
2244(b).
As we have said above, and as Mr. Nelson explicitly told both courts below, he seeks only an adjudication of his claim that Alabama's proposed “cut-down” procedure would violate his Eighth Amendment right against cruel and unusual punishment. Such a claim could not have been presented in his previous federal habeas corpus proceeding because it was premature when that proceeding was maintained and finally adjudicated. Indeed, throughout the period of that proceeding, the State of Alabama executed death sentences by electrocution, not by lethal injection. It is not difficult to imagine what sort of ruling the federal habeas court at that time would have rendered if Mr. Nelson had undertaken to challenge any potential secondary procedure that might become necessary if and when Alabama subsequently elected to replace electrocution with lethal injection - or with the gas chamber, hanging, or whatever other new methods of execution the future could bring. The challenge would unquestionably have been viewed by the courts as ridiculously premature. For that reason, 28 U.S.C. § 2244(b) erects no bar to Mr. Nelson's presentation of the claim in a habeas corpus *37 petition after the legal and factual grounds for the challenge did mature. Stewart v. Martinez-Villareal squarely so holds. And this result is eminently correct, for nothing in § 2244(b) remotely implies any congressional intent to foreclose all avenues of relief for a death-sentenced prisoner who seeks legal redress against an unconstitutional execution procedure which became known - indeed, which was first de-

vised - only after his or her federal habeas corpus proceedings had been concluded.
David Nelson's fundamental entitlement to present his claim should not depend, we believe, upon the mechanism of his request - a § 1983 action however proper that mechanism is (as we have shown it to be above), but rather on the substance of that claim. If this Court deems some other vehicle more appropriate, Mr. Nelson requests that the Court permit him to pursue that remedy. If the Court sees any reason why his § 1983 complaint should be recharacterized as a habeas corpus application, it would nonetheless not be a “second or successive” application for the writ according to Stewart. Hence, Mr. Nelson should be entitled to pursue it in the district court without “gatekeeper” authorization under 28 U.S.C. § 2244(b)(3).
*38 CONCLUSION
The judgment of the Eleventh Circuit Court of Appeals should be reversed and the case remanded to permit Mr. Nelson to present the merits of his Eighth Amendment claim to the district court.
U.S.,2004. David L. NELSON, Petitioner, v. Donal CAMPBELL, Commissioner, Alabama Department of Corrections, et al., Respondents. 2004 WL 188118 (U.S.)
END OF DOCUMENT

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

 
 No.03-6821 IN THE UNITED STATES SUPREME COURT
October Term, 2003

DAVID LARRY NELSON, Petitioner,

VS.

DONAL CAMPBELL,

Commissioner

of the Alabama Department and

of Corrections,

GRANTT CULLIVER,

Warden of William C. Holman Correctional Facility,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF BRIEF OF AMICI CURIAE
IN SUPPORT OF PETITIONER

AND

KATHRYN LOUISE LIPPERT Alabama Bar No. ASB-8428-I64K Post Office Box 661111 Birmingham, Alabama 35266 Telephone (205) 426-3705 Fax Number (205) 426-3750
Counsel for Amici Curiae

No.03-6821 IN THE UNITED STATESSUPREMECOURT
OctoberTerm, 2003

DAVID LARRY NELSON, Petitioner,

VS.

DONAL CAMPBELL,

Commissioner

of the Alabama Department and

of Corrections,

GRANTT CULLIVER,

Warden of William C. Holman Correctional Facility,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE AN A,MICI CURIAE BRIEF

PRIOR TO THE COURT'S CONSIDERATIN

OF A PETITION FOR

WRIT OF CERTIORARI

The amici curiae listed below, pursuant to Rule 37.2(b), Rules of the Supreme Court of the United States, move this Court for leave

to file a brief in support of the above-captioned certiorari.

petition for a writ of

In support,the amici curiae submit:

1.

The above-styled petition for a writ of certiorari was

timely filed. Petitioner is indigent and has been permitted to proceed in

forma pauperis in all prior proceedings.

2.

The above-styled petition centers around medical

procedures contemplated by the Respondents to be performed on the Petitioner to gain venous access to the Petitioner so that he may be

executed by lethal injection.

The medical procedures being

contemplated by the Respondents are complicated medical procedures that will involve significant risk to the Petitioner and should be

performed only by highly specialized, credentialed medical personnel.

3.

From the limited information volunteered

by the

Respondents throughout litigation of this matter, it appears that no

competent, crcdentialed physician is overseeing the Respondents' plan

to gain venous access to the Petitioner. Furthermore, it is unknown

what experience and credentials the medical personnel who will be

employed by the Respondents to perform the medical procedures

possess.

4.

The amici curiae are all practicing physicians in the

State of Alabama who have reviewed the Respondents' proposed plan

to gain venous access in the Petitioner. The amici curiae, with their

medical training and knowledge, can offer a unique perspective to the Petitioner's case and can explain to the Court the medical concerns

raised by the Respondent's proposed medical procedures.

5.

The amici curiae are in a position to raise matters that

neither of the parties can raise given their responsibilities and their lack of medical training.

as advocates

6.

The amici curiae offer the attached brief in support of

the Petitioner's Petition for Writ of Certiorari. The amici curiae

received authorization from the Petitioner's counsel to file the attached

brief. Counsel for the Respondent refused to consent to the filing of a

brief by amici curiae.

ACCORDINGLY,

the amici curiae move this Court for leave

to file the attached brief in support of this Court's consideration of Petitioner David Nelson's Petition for Writ of Certiorari.

Respectfully Submitted,
KATId/RYN LOUISI_ _IPPERT Counsel for Amici Curiae

No.03-6821 IN THE UNITED STATESSUPREMECOURT
OctoberTerm,2003

DAVID LARRY NELSON, Petitioner,

VS.

DONAL CAlVlPBELL,

Commissioner

of the Alabama Department and

of Corrections,

GRANTT CULLIVER,

Warden of William C. Holman Correctional Facility,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF OF AMICI CURIAE IN SUPPORT OF PETITIONER

KATHRYN LOUISE LIPPERT Alabama Bar No. ASB-8428-I64K Post Office Box 661111 Birmingham, Alabama 35266 Telephone (205) 426-3705 Fax Number (205) 426-3750
Counsel for Amici Curiae

AMICI CURIAE

Dr. Laurie Dill Montgomery,

Alabama

Dr. Frank J. Hogan Montgomery, Alabama

Dr. David W. Hodo Selma, Alabama

Dr. Mark C. D. Mitchell AUnore, Alabama

Dr. Jane Mobley Birmingham, Alabama
Dr. William Winternitz Tus_loosa, Alabama

TABLE OF CONTENTS

AMICI CURIAE ............................................................................

i

TABLE OF CONTENTS .................................................................

ii

QUESTIONS PRESENTED ...........................................................

iii

STATEMENT OF INTEREST OF AMICI CURIAE ..................... 1

SUMMARY OF ARGUMENT .......................................................

2

ARGUMENT ..................................................................................

5

I.

INTRODUCTION

.............................................................

5

II.

BASIC CONSIDERATIONS

REGARDING

INTRAVENOUS

ACCESS .................................................

5

III.

TECHNIQUES FOR OBTAINING CENTRAL

VENOUS ACCESS ...........................................................

8

IV.

QUALIFICATIONS

FOR OBTAINING CENTRAL

ACCESS ..............................................................................

10

V.

COMPLICATIONS

OF PLACING CENTRAL VENOUS

CATHETERS .......................................................................

12

VI.

CONCERNS OF AMICI CURIAE REGARDING THE

STATE OF ALABAMA'S

PROPOSED PROCEDURES

TO OBTAIN CENTRAL VENOUS ACCESS IN THE

PETITIONER ......................................................................

14

VII. CONCLUSION

..................................................................

18

CERTIFICATE OF SERVICE

QUESTIONS PRESENTED

The Petitioner has raised the following two questions in his Petition for Writ of Certiorari before this Court:

1.

Whether an action brought by a death-sentenced

prisoner pursuant to 42 U.S.C. § 1983, which does not attack a conviction or sentence, is - simply because the person is under a

sentence of death - to be treated as a habeas corpus case subject to the

restriction on successive petitions which categorically precludes review of any constitutional violation not related to innocence (as the

Fourth, Fifth and Eleventh Circu/ts hold), or can be maintained as §

1983 action (as the Sixth, Eighth and Ninth Circuits and several lower

courts hold)?

2.

Whether a cut-down procedure, which involves pain

and mutilation, conducted prior to an execution by lethal injection,

violates the Eighth Amendment to the United States Constitution?

iii

STATEMENT OF INTEREST OF AMICI CURIAE Each amicus curiae is a practicing physician in the State of Alabama I. The amici curiae have been informed of the medical procedures the Respondents have proposed using to gain venous access to the Petitioner to execute him by lethal injection. The proposed medical procedures concern us as physicians for a number of reasons. First, obtaining central venous access is a complex medical procedure that involves serious risks and should only be performed by properly trained personnel. In this situation the Respondents will not disclose the credentials of the people who will be performing the procedure, including whether or not the physician is actually licensed to practice medicine in the State of Alabama or any other state. We are also concerned because it is apparent to us that the Respondents hope to implement a plan that was not designed by competent, credentialed physicians, and thereby are placing the Petitioner at high risk of enduring severe and needless pain and suffering.

1 Pursuant to Rule 37.6, States, counsel for neither part.

Rules party

of the Supreme Court has authored this brief
1

of the United in whole or in

SUMMARY OF ARGUMENT

The Respondents must gain venous access to the Petitioner in

order to execute him by lethal injection. Venous access may be

obtained in most people by placing a very thin catheter under the skin

in the hand or arm. Gaining venous access in this manner is referred

to as peripheral venous access and is a relatively simple procedure.

Gaining peripheral venous access may be difficult or

essentially impossible in some patients. When dealing with these

people, central venous access must be obtained, which involves

obtaining access to a central vein such as those in the chest and

abdomen. Central venous access can only be achieved via a relatively

complicated medical procedure.

The Respondents have essentially conceded that they will not

be able to gain peripheral venous access to the Petitioner in order to

execute him by lethal injection. As such, they will have to perform an

invasive medical procedure to gain central venous access to the

Petitioner prior to his execution.

There are two predominant

methods for obtaining central

venous access - - the pereutaneous 2

technique

and the cut down

technique. In the overwhelmingmajority of situationswherecentral venous access is required, the percutaneoustechnique is heavily favoredoverthe cut down technique.This is becausethe percutaneous techniqueis less invasive, less painful, safer, faster, easierto learn, easierto teach, and easier to perform.
Attempts to gain central venous access should only be made by skilled, experienced physicians who have been specially trained to perform the requisite medical procedures. It cannot be emphasized enough that merely being a physician in no way qualifies a person to perform medical procedures to gain central venous access.
Many serious and painful complications may arise while a central venous catheter is being placed. These complications include severe pain, hemorrhage (severe bleeding), serious cardiac arrhythmias (abnormal beating of the heart causing shock), and pneumothorax (lung collapse due to collection of air between the lung and chest wall). Additionally, the amount of pain caused by the procedure is related to the experience of the medical practitioner performing the procedure.

For some unknown reason, the Respondents intend to use the cut down procedure instead of the percutaneous procedure. The Respondents also refuse to disclose the credentials and experience of the medical personnel who will be in charge of performing the cut down procedure.
Based on the scant information that the Respondents have disclosed, it appears that people with sufficient medical knowledge have not designed the medical procedure being prepared by the Respondents. Furthermore, there are no assurances that a competent, qualified, licensed physician will be performing the medical procedures proposed by the Respondents.
Of no small concern is the fact that the proposed medical procedures described by the Respondents include references to anatomy not present in human beings. In addition, the Respondents use the terms "percutaneous technique" and "cut down technique" interchangeably when the techniques are completely distinct.
Based upon the foregoing, the amici curiae have grave concerns about the medical procedures proposed by the Respondents. The amici curiae strongly recommend that the Petitioner's execution

be postponed until the Respondents disclose a medically sound, detailed description of the procedure that will be undertaken as well as

a description of the experience and credentials of the medical

personnel who will be performing the procedure.

ARGUMENT

Im

_TRODUCTION

The Respondents have encountered a unique problem in the Petitioner's case involving the need for medical procedures to be

performed on the Petitioner in order for the Respondents to gain intravenous access to the Petitioner for the purpose of executing him

by lethal injection. It the intent of the amici curiae to outline some of the considerations surrounding intravenous access and also to explain the bases for our concerns about the medical procedures for gaining

intravenous access to the Petitioner which are being contemplated by

the Respondents.

H.

BASIC CONSIDERATIONS

INTRAVENOUS

ACCESS

REGARDING

Obtaining intravenous access is a common and essential procedure in the contemporary practice of medicine, because many

drugs are only effective if delivered directly into the venous system. 5

In the vast majority of situations, intravenous access can be easily obtained by placing a very thin catheter (the same diameter or smaller than the wire of a coat hanger) into a vein located just under the sk/n in the hand or arm. This is called "peripheral access", as contrasted with "central access" which makes use of a "central vein" such as those in the chest and abdomen. Peripheral access is usually a minor procedure that causes a small amount of pain or discomfort, comparable to that caused by a vaccination.
Unfortunately, in some patients peripheral access cannot easily be obtained, or is essentially impossible to obtain. One circumstance where this problem is commonly encountered is in patients who have received chemotherapy, which causes injury and scarring of peripheral subcutaneous veins. As their veins deteriorate, a point is reached where the search for peripheral access becomes arduous and agonizing, and the patient and physician reach a joint decision to place a central intravenous catheter. This decision is not reached lightly, as placement of a chronic indwelling central catheter is a non-trivial surgical procedure that involves pain and risk. Often the patient is referred to a physician with expertise in obtaining vascular access; as

many physicians do not themselves have the experience and credentials to place a central catheter or to treat the complications that are associated with the procedure. Other clinical situations that involve difficult intravenous access include obese patients (in whom the subcutaneous veins are obscured by adipose tissue), patients who have taken corticosteroids for diseases such as arthritis and lupus, patients who suffer from diabetes and regularly inject insulin, and patients with a history of intravenous drug abuse. Additionally, some patients without any apparent reason just have no readily accessible peripheral veins.
Central venous access is indicated in several other clinical situations. As an example, patients undergoing major surgery often undergo central line placement (usually after general anesthesia has been induced) for the purposes of delivering large volumes of blood and fluids to treat anticipated intraoperative bleeding. Patients undergoing cardiac catheterizaton for diagnostic purposes may also require the placement of central venous catheters. Central access is also required for the placement of implanted cardiac pacemakers. The above list is not intended to be comprehensive, but rather is presented

for the purpose of conveying the scope of settings in which central intravenous access may be required.

It should be noted that in the great majority of the above-

referenced therapeutic situations, peripheral intravenous access is

obtained prior to embarking on the central venous access procedure.

This allows the practitioner to administer painkillers and sedatives

which render the central venous access procedure virtually innocuous.

In the rare and unfortunate situation where peripheral intravenous

access cannot be established before placing the central line, the

experience is physically grueling, painful, and arduous for the person

undergoing the procedure.

Eli. TECHNIQUES ACCESS

FOR OBTAINING

CENTRAL VENOUS

Putting aside rarely used methods, it is fair to say that two main

techniques are used for obtaining central venous access.

One

technique, which is the most commonly used today, is called the

"percutaneous technique".

This involves inserting a needle through

the skin and into the vein, then passing a thin wire through the lumen

of the needle, then removing the needle over the wire to leave the wire

placed in the vein, and then finally advancing a thin flexible catheter 8

over the wire into the vein. The wire can then be removed, leaving the catheter in the vein. Usually this procedure is performed in the groin (femoral vein), the neck (internal or external jugular vein), or under the collar bone (subclavian vein).
The second technique for obtaining central intravenous access is called the cut down technique. This involves the use of a scalpel to make a series of incisions through the skin, the subcutaneous fat, and the underlying muscle, to reach the relatively deeply located central vein. The length of these incisions is in the range of two inches and depends upon a variety of factors including location of the incision, degree of scarring, depth of the vessel, and the skill of the surgeon. As with the percutaneous technique, this procedure is usually performed in the groin (femoral vein), the neck (internal or external jugular vein), or under the collar bone (subclavian vein). The cut down technique is also used to obtain access to veins in the arm and leg, particularly in the setting of shock from trauma, where bleeding has emptied the vascular system and percutaneous access is thereby made difficult. Unlike the percutaneous technique, the cut down technique requires an array of surgical tools including hemostats, retractors, scissors, and
9

scalpels. The proceduretypically requiresthe use of electrocautery, which is usedto stop bleeding by burning the open endsof blood vessels.
The selection between these techniques is a therapeutic decisionthatis madeby the practitionerbasedon the considerationsof the individual situation. Neverthelessw, e state with confidence that in

the overwhelming

majority of situations where central access is

required, the percutaneous technique is heavily favored over the cut

down procedure. The reasons for this are simple: compared with the

cut down technique, the percutaneous technique is less invasive, less

painful, less expensive, safer, faster, easier to learn, easier to teach,

and easier to perform.

IV.

QUALIFICATIONS

ACCESS

FOR OBTAINING

CENTRAL

Obtaining central venous access, whether by the percutaneous

technique or the cut down technique, is a significant medical

procedure that requires skill, judgment,

and experience.

These

procedures are typically taught during post-graduate medical residency

training, and involve "elbow to elbow" supervision by an experienced

practitioner.

Some medical

specialties

10

(including

surgery,

anesthesiology, cardiology, intensive care, and interventional

radiology) frequently involve placement of central venous catheters.

In other medical specialties, it is frequently the case that a patient

requiring central venous access will be referred to a physician with

expertise and proficiency in performing the procedure.

For physicians to be permitted to practice in a given hospital,

they must apply for and receive admitting privileges. As part of this

process, a physician will apply for permission to perform various

procedures, and hospitals have in place systems for ascertaining

whether such procedure privileges should be granted. Obtaining

central venous access, whether by the percutaneous technique or the

cut down technique, is a procedure that is specifically privileged by

hospitals. This system is followed throughout the country as a means

of ensuring that personnel possessing adequate training and experience

care for patients. In particular, in granting privileges for performing

central venous access a hospital board would need evidence that a

physician performs the procedure with significant frequency and has

appropriate credentials.

Among the required credentials would be

evidence of active state licensure. A hospital would also need to

11

review a physician's career record to ensure that there was no history

of lieensure revocation for misconduct or incompetence.

It is very

important to understand that merely being a physician in no way

provides an assurance that proficiency or even familiarity with intravenous access exists.

V.

COMPLICATIONS

CATHETERS

OF PLACING CENTRAL VENOUS

One of the reasons for requiring credentialing for obtaining

central venous access is that the procedures are associated with

significant

complications.

These complications

include pain,

hemorrhage (severe bleeding), cardiac arrhythmias, and pneumothorax

(accumulation

of air in the space between the lung and inner chest

wall, causing lung collapse and suffocation). The amount of pain

caused by the procedure is related to the experience of the practitioner.

A skilled practitioner will spend less time "fishing around" to find the

location of the vein and will be more adept at effectively infiltrating

local anesthesia to make the procedure more comfortable,

Hemorrhage can occur because of lacerating or rupturing the large blood vessels that are the targets of the procedure. Hemorrhage

can be external or internal.

If it is external, one result can be 12

widespread distribution of blood throughout the operative field,

including the drapes covering the patient's face, the floor, the medical

personnel, and the operating table. If the hemorrhage is internal,

expertise and experience is often required to recognize the problem

and provide appropriate treatment. Hemorrhage, while not painful per

se, is extraordinarily distressing and is associated with nausea,

shortness of breath, a sense of suffocation, and terror.

Cardiac arrhythmias (abnormal beating of the heart) can be

triggered by inadvertent stimulation of the heart muscle by the catheter

or wire. These arrhythmias can cause a profound lowering of blood

pressure, which like hemorrhage is extremely distressing. If that were

to occur, the patient would likely require electrical defribrillation or

electrical cardioversion, both of which would burn the skin and

produce an extraordinarily

agonizing experience for a conscious

patient.

Finally, the complication of pneumothorax can be caused by

inadvertently puncturing the thin sac that separates the lungs from the

inner side of the chest wall. The resulting lung collapse is painful and

extremely distressing, causing suffocation and sometimes death. The

13

treatmentof pneumothorax involves the insertion of one or more large

diameter tubes (approximately one-half inch in diameter) between the ribs and deep into the chest to evacuate the air. This procedure is

painful, should only be performed by experienced practitioners, and is

accompanied by its own set of catastrophic complications. It should be noted that in most clinical situations in which

central venous access is being obtained, peripheral intravenous access

has already been established. Peripheral lines play a critical role in the

treatment of the above-described complications

because they permit

the administration of painkillers and sedatives, drugs for treating

arrhythmias, and allow for the infusion of blood and other fluids to

treat hemorrhage.

Logically, in a setting where central access is

required because peripheral access could not be achieved, these

complications are much more fearsome and difficult to manage.

VL

CONCERNS

OF AMICI CURIAE REGARDING

THE

STATE OF ALABAMA'S

PROPOSED

PROCEDURES

TO OBTAIN CENTRAL VENOUS ACCESS IN THE

PETITIONER

It is our understanding that the Petitioner has a history of

difficult intravenous access. The affidavit of Warden Grantt Culliver

states that difficulty is anticipated in obtaining intravenous access and 14

that a plan has been formulated to obtain central venous access. It is our further understanding that this plan involves attempting catheter placement in the groin, the neck, or the ann.
It is our understanding that the Respondents have refused to disclose the State of Alabama's protocol for lethal injection and have disclosed very little information about the methods that will be employed in attempts to gain venous access in the Petitioner. It is our further understanding that the Respondents have not disclosed any information about the personnel who will be placing the central catheter in the Petitioner, including information about the personnel's credentials and experience. Indeed, it is not even known whether the individual who will be performing the medical procedure holds a current license to practice medicine in the State of Alabama or any other state. Thus, there is no assurance or basis for confidence that a suitably proficient practitioner will perform the medical procedure.
The failure on the part of the Respondents to provide this information makes it impossible to rationally ascertain whether or not reasonable steps have been taken to ensure that the procedure will not be bungled and cause extreme suffering and distress to the Petitioner.
15

Warden Culliver in his affidavitstates that if the central intravenousaccess isobtained via the neck, the "externalcarotidvein" willbe used. There isno such structurein human beings,and itis not credibleto the amici curiae that a trained physician or practitioner would even mistakenly use thisterm. Oddly, an affidavitby Dr. Marc Sonnier also uses the term "externalcarotidvein". The use of this term bespeaks the presence of lessthan a glimmer of familiaritywith the procedure and buttressesour concern thatthe personnel recruited by the Respondents for thisprocedure wiU not possess the requisite proficiencyand expertise. It is difficultto believe thatany personnel currentlyemployed by the Respondents possess the requisiteexpertise to perform, review, or "sign off" on the procedures proposed by the Respondents.
Itis our understanding that Warden Culliver'sinitiapllan was to place the centrallinetwenty-fourhours in advance of the execution. This plan reflectsa troublinglack of judgment. The factthat Warden Cullivcr retractedthis ill-advisedplan, eventually assertingthat the procedure would be performed one or two hours priorto the execution, does nothing to mitigatethe factthat he made the proposal and, for a
16

period of time, defended it. Also, it is our understanding that Warden

Culliver initially informed the Petitioner that the procedure would involve an incision a quarter of an inch in length but later informed the Petitioner, as is reflected in his affidavit, that the incision would be

approximately two inches in length. Warden Cuiliver clearly lacks the

experience and expertise to make decisions about the medical features of the procedure.

It is also our understanding that during early discussions about plans to obtain intravenous access in the Petitioner, Warden CuUiver

used the term "cut-down" to refer to the percutaneous procedure. As described above, the two procedures are very different, and in virtually

all cases it is preferable to use the percutaneous technique.

Warden

Culliver's failure to discern the distinctions between these procedures,

in conjunction with his apparent prominent role in designing the

procedure, strongly suggests that the Petitioner is at risk for being subjected to a poorly designed procedure.

In summary, the procedures for obtaining central venous access are complex medical procedures that require training and skill and

should only be performed by experienced and credentialed personnel.

17

Warden Culliver's approach thus far has been to conceal from the Petiitoner the nature of the procedure to be performed and the

qualifications of the personnel who will be performing it. Based upon

the scant information that has been provided by the Respondents, the

amici curiae are concerned that the Petitioner is at great risk of experiencing unnecessary suffering and pain. VII. CONCLUSION

In view of the above-described

problems, each amicus curiae

cannot escape the unfortunate conclusion that the Respondents have taken a haphazard and disarrayed approach to designing the procedure

for obtaining intravenous access in the Petitioner's case. This situation

brings to mind an adage of medical Iraining, "failing to plan is

planning to fail". We do not understand why it would not be in the best interest of the Respondents to contract with a demonstrably

experienced physician to perform the procedure of obtaining central intravenous access on the Petitioner. We also do not understand why

it would not be in the best interest of the Respondents to provide

information about the physician's credentials so that it could be

reasonably determined that central intravenous access would be

18

obtained in a fashion that would minimize the risk of needless cruelty,

pain, and suffering. It is our understanding the need to obtain central venous access

in the Petitioner is not emergent. The readily apparent lack of a

coherent program for designing and carrying out this procedure on the Petitioner leads us to recommend in the strongest possible terms that

the procedure be postponed until the elements set forth above are brought into place. Specifically, we recommend that the Respondents

be required to disclose a reasonably detailed and medically sound

description of the procedure to be undertaken and a detailed description of the personnel who will be performing the procedure,

including the credentials of the medical personnel.

We, of course,

recognize the medical personnel's desire for anonymity in the context

of performing medical procedures related to an execution. However, it

is not difficult to envision a solution that allows for a review of this

information without revealing the identity of the specific personnel.

For example, a mutually agreed upon independent party could review the professional credentials and licensure of the medical personnel and

provide an assurance

to interested

parties that appropriately

19

credentialedpersonnel would be involved.
The amici curiae respectfully request that this Court grant the Petitioners Petition for Writ of Certiorari.
Respectfully submitted,

Post Office Box 661111
Birmingham, Alabama 35266 Telephone (205) 426-3705 Fax Number (205) 426-3750

Counsel for Amici Curiae

20

CERTIFICATE OF SERVICE
I hereby certify that I have this date served a true and correct copy of this Brief of Amici Curiae in Support of Petitioner by United States Mail with proper postage affixed thereto upon the following:
Mr. Michael Billingsley Deputy Attorney General Alabama State House 11 South Union Street Montgomery, Alabama 36130
Michael Kennedy Mclntyre 507 The Grant Building 44 Broad Street, N.W. Atlanta, GA 30303
H. Victoria Smith 507 The Grant Building 44 Broad Street, N.W. Atlanta, GA 30303
Dated: This/___'__ day of November, 2003.

KAT_

LOLrl SF:r_PPERT

 
 CM/ECF - U.S. District Court: ALMD - Docket Report

https://ecf.almd.uscourts.gov/cgi-bin/DktRpt.pl?708653872164454-L_3...

DEATHPENALTY, MHT-ClerkC
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:03-cv-01008-MHT-WC

Nelson v. Campbell, et al (DEATH PENALTY) Assigned to: Judge Myron H. Thompson Referred to: Honorable Wallace Capel, Jr Demand: $0 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 10/06/2003 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Special Master
David Boyd Honorable

represented by David R. Boyd Balch & Bingham PO Box 78 2 Dexter Avenue Montgomery, AL 36101-0078 334-834-6500 Fax: 269-3115 Email: dboyd@balch.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff David Larry Nelson

represented by H. Victoria Smith Michael Kennedy McIntyre & Associates 965 Virginia Avenue NE Atlanta, GA 30306 404-879-1515 Fax: 404-879-0005 Email: hvs@georgiapostconviction.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joe Wilson Morgan, III 600 Robert Jemison Road Suite B Birmingham, AL 35209 205-945-8550 Fax: 945-9005 LEAD ATTORNEY

Michael Kennedy McIntyre Michael Kennedy McIntyre & Associates 965 Virginia Avenue NE Atlanta, GA 30306-3615 404-879-1515

1 of 18

8/22/2007 11:19 AM

CM/ECF - U.S. District Court: ALMD - Docket Report
V. Defendant Donal Campbell in his individual and official capacity as Commissioner of the Alabama Department of Corrections
Defendant Grantt Culliver
Defendant Richard F. Allen
2 of 18

https://ecf.almd.uscourts.gov/cgi-bin/DktRpt.pl?708653872164454-L_3...
Fax: 404-879-0005 Email: mkm@georgiapostconviction.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Clayton Crenshaw Office of the Attorney General Alabama State House 11 South Union Street Montgomery, AL 36130 334-242-7300 Fax: 334-353-3637 Email: ccrenshaw@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B. Billingsley Office of the Attorney General Alabama State House 11 South Union Street Montgomery, AL 36130 334-242-7300 Fax: 242-2848 Email: Mbillingsley@ago.state.al.us TERMINATED: 09/24/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Clayton Crenshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B. Billingsley (See above for address) TERMINATED: 09/24/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Clayton Crenshaw Office of the Attorney General 11 South Union Street Montgomery, AL 36130 334-242-7300
8/22/2007 11:19 AM

CM/ECF - U.S. District Court: ALMD - Docket Report

https://ecf.almd.uscourts.gov/cgi-bin/DktRpt.pl?708653872164454-L_3...

Fax: 334-353-3637 Email: ccrenshaw@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/06/2003 10/06/2003 10/06/2003 10/06/2003 10/07/2003 10/07/2003
10/07/2003
10/07/2003 10/07/2003 10/07/2003 10/07/2003 10/07/2003

#

Docket Text

Staff Attorney Assigned: Torbert (cb) (Entered: 10/06/2003)
1 COMPLAINT for injunctive and declaratory relief (w/attachments 1 thru 6 attached) (djy) (Entered: 10/06/2003)
1 MOTION by David Larry Nelson to Proceed in Forma Pauperis referred to Judge Myron H. Thompson (djy) (Entered: 10/06/2003)
File referred to Judge Thompson. (djy) (Entered: 10/06/2003)
Tele-conference held before Judge Myron H. Thompson on 10-7-03; hearing on oral motions (djy) Modified on 10/07/2003 (Entered: 10/07/2003)
2 Courtroom Deputy's MINUTES of proceedings re: tele-conference held before Judge Thompson on 10/7/03 - hearing on oral motions (1) plaintiff's motions for preliminary injunction and temporary restraining order; (2) defendants' motion for change of venue and motion to dismiss (written motions to be filed by noon today, with any responses to motions due by 1:00 pm; ORAL ORDER directing court report to prepare and file transcript of proceeding forthwith; ORAL ORDER directing Clerk of Court to transmit a copy of the transcript to the Eleventh Circuit immediately upon filing. (Court reporter-Reisner) (djy) (Entered: 10/07/2003)
Court reporter Reisner's TRANSCRIPT filed for dates of October 7, 2003 in-chambers telephone conference re: motion for preliminary injunction, motion for temporary restraining order, motion for change of venue 7 motion to dismiss (djy) (Entered: 10/07/2003)
3 MOTION by Donal Campbell, Grantt Culliver to Change Venue to Southern District of Alabama referred to Judge Myron H. Thompson (djy) (Entered: 10/07/2003)
3 BRIEF by Donal Campbell, Grantt Culliver in support of [3-1] motion to Change Venue to Southern District of Alabama.Referred to Judge Myron H. Thompson (djy) (Entered: 10/07/2003)
4 MOTION by Donal Campbell, Grantt Culliver to Dismiss (w/attachments-Nelson letter, affidavit of Dr. Marc Sonnier, Affidavit of Grantt Culliver) referred to Judge Myron H. Thompson (djy) (Entered: 10/07/2003)
5 NOTICE of providing information to the court by Donal Campbell, Grantt Culliver. Referred to Judge Thompson. (djy) (Entered: 10/07/2003)
6 MOTION by David Larry Nelson to Amend [1-1] complaint (proposed first amended complaint attached) referred to Judge Myron H. Thompson (djy)

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10/07/2003 10/07/2003 10/07/2003 10/07/2003 10/07/2003 10/07/2003 10/07/2003 10/07/2003
10/07/2003
10/07/2003 10/07/2003 10/07/2003 10/08/2003

(Entered: 10/07/2003)
7 SECOND NOTICE of providing information to the court by Donal Campbell, Grantt Culliver. Referred to Judge Thompson (dmn) (Entered: 10/07/2003)
8 ORDER granting [1-1] motion to Proceed in Forma Pauperis ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 10/07/2003)
9 ORDER granting [6-1] motion to Amend [1-1] complaint ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 10/07/2003)
10 FIRST AMENDED COMPLAINT by David Larry Nelson amending [1-1] complaint. Referred to Judge Thompson. (djy) (Entered: 10/07/2003)
11 REPLY (affidavit of Mark Heath attached) by David Larry Nelson to [4-1] motion to Dismiss by Grantt Culliver, Donal Campbell. Referred to Judge Myron H. Thompson (djy) (Entered: 10/07/2003)
12 MOTION by David Larry Nelson for production of documents (w/attachment) referred to Judge Myron H. Thompson (djy) (Entered: 10/07/2003)
13 MEMORANDUM OPINION (signed by Judge Myron H. Thompson ), copies provided to counsel. (djy) (Entered: 10/07/2003)
14 JUDGMENT, in accordance with the memorandum opinion entered this date, the following is the ORDER, JUDGMENT and DECREE of the court as follows: (1) the [4-1] motion to Dismiss filed 10/7/03 is granted; (2) plf Nelson's [1-1] complaint as [10-1] amended is dismissed without prejudice; further ORDERING that costs are taxed against plf Nelson, for which execution may issue ( signed by Judge Myron H. Thompson ), copies provided to counsel. (djy) Modified on 8/26/2004 - VACATED PER ORDER OF 8/26/04 - Doc.#32 (vmc, ). (Entered: 10/07/2003)
15 ORDER directing that plf Nelson's oral motion for temporary restraining order and preliminary injunction, made during the conference call held 10/7/03 is denied as moot ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 10/07/2003)
16 ORDER denying as moot [3-1] motion to Change Venue to Southern District of Alabama ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 10/07/2003)
17 ORDER denying [12-1] motion for production of documents ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 10/07/2003)
Case closed (djy) (Entered: 10/07/2003)
18 NOTICE OF APPEAL (construed as containing a M/IFP) to the United States Court of Appeals, Eleventh Circuit by David Larry Nelson from the final Opinion and Judgment of the District Court,, including all subsidiary and procedural issues and orders related thereto, which final Opinion and Judgment was entered in this action on the 7th day of October. Copies Provided by fax (kcg) (Entered: 10/08/2003)

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10/08/2003 10/08/2003 10/08/2003 10/08/2003
10/09/2003
10/10/2003 10/14/2003 10/14/2003 11/06/2003 11/06/2003 11/12/2003 01/27/2004

18 MOTION by David Larry Nelson to Proceed on Appeal in Forma Pauperis referred to Judge Myron H. Thompson (kcg) (Entered: 10/08/2003)
19 ORDER granting [18-1] motion to Proceed on Appeal in Forma Pauperis ( signed by Judge Myron H. Thompson ) , copies provided by fax. (kcg) (Entered: 10/08/2003)
Notice of Appeal and certified copy of docket to USCA: [18-1] appeal by David Larry Nelson (kcg) (Entered: 10/08/2003)
20 PER CURIAM OPINION of the United States Court of Appeals, Eleventh Circuit that the district court's judgment dismissing Nelson's complaint is affirmed. Nelson's motion to enjoin dfts from executing him is denied. The judgment of the district court is AFFIRMED, and Nelson's motion for stay of execution is DENIED. Before: ANDERSON, HULL and WILSON, Circuit Judges (kcg) (Entered: 10/09/2003)
21 ORDER of the United States Court of Appeals, Eleventh Circuit that the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Petition for Rehearing En Banc is DENIED. The en banc process having been completed, the pending motion to stay the execution during en banc consideration is DENIED as moot. J.L. Edmondson, Chief Judge (kcg) (Entered: 10/09/2003)
USCA Case Number Re: USCA NUMBER: 03-15095-P (kcg) (Entered: 10/10/2003)
22 MOTION by David Larry Nelson for transcript at no cost to the Plaintiff ; referred to Judge Myron H. Thompson (dmn) (Entered: 10/14/2003)
23 ORDER granting [22-1] motion for transcript; the clerk of the court is DIRECTED to arrange for the preparation of the transcript ( signed by Judge Myron H. Thompson ); copies provided to counsel; furnished to CT and DH. (dmn) (Entered: 10/14/2003)
24 MOTION by David Larry Nelson for H. VICTORIA SMITH to appear Pro Hac Vice; FILING FEE $20.00, RECEIPT #99855 ; referred to Judge Myron H. Thompson (dmn) (Entered: 11/07/2003)
25 MOTION by David Larry Nelson for MICHAEL KENNEDY MCINTYRE to Appear Pro Hac Vice, FILING FEE $20.00, RECEIPT #99855 ; referred to Judge Myron H. Thompson (dmn) (Entered: 11/07/2003)
26 ORDER granting [25-1] motion for MICHAEL KENNEDY MCINTYRE to Appear Pro Hac Vice and granting [24-1] motion for H. VICTORIA SMITH to appear Pro Hac Vice ( signed by Judge Myron H. Thompson ); copies provided to counsel. (dmn) (Entered: 11/12/2003)
REQUEST for Record On Appeal from USCA at the request of the Clerk of the Supreme Court of the United States please promptly forward the record in the referenced case directly to the Clerk of the Supreme Court re:[18-1] appeal by David Nelson (03-15095-P) (ydw) Modified on 01/28/2004 (Entered:

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01/28/2004 02/10/2004 07/19/2004 07/23/2004
08/06/2004 08/06/2004 08/18/2004 08/23/2004 08/23/2004 08/23/2004 08/26/2004 08/26/2004

01/28/2004)
Certified and transmitted Original Papers to Supreme Court of United States: (ydw) Modified on 01/28/2004 (Entered: 01/28/2004)
ACKNOWLEDGEMENT of RECEIPT of RECORD ON APPEAL from USCA Re: USCA Number: 03-15095-P [18-1 appeal] (ydw) (Entered: 02/10/2004)
Original Papers (1 volume) Received from USCA re: 03-15095-P, 18 Notice of Appeal. There is no pdf document with this entry (ydw, ) (Entered: 07/26/2004)
Received copy of USCA Per Curiam re: 03-15095, 18 Appeal, on REMAND FROM THE SUPREME COURT OF THE UNITED STATES that Nelson filed a complaint in the district court. The district court dismissed the complaint for lack of jurisdiction. We affirmed. Nelson v. Campbell, 347F.3d910(11th Cir.2003). The Supreme Court granted certiorari, 540 U.S.1046,124S.Ct.835(2003). Later, the Supreme Court reversed and remanded for further proceedings consistent with its opinion. 541 U.S.___,124 S.Ct.2117 (May 24, 2004). Accordingly, the judgment of the district court is reversed and the case is remanded to the district court for proceedings consistent with the opinion of the Supreme Court. REVERSED and REMANDED. Before ANDERSON, HULL and WILSON, Circuit Judges. (ydw, ) (Entered: 07/26/2004)
27 Minute Entry for proceedings held before Judge Myron H. Thompson : Telephone Conference held on 8/6/2004. (Court Reporter Mitchell Reisner.) (vmc, ) (Entered: 08/06/2004)
28 ORDER that another Telephone Conference will be held in this case on 8/18/2004 at 08:30 AM before Honorable Myron H. Thompson. Signed by Judge Myron H. Thompson on 8/6/04. (furn: yg hc sc)(vmc, ) (Entered: 08/06/2004)
33 Minute Entry for proceedings held before Judge Myron H. Thompson : Telephone Status Conference held on 8/18/2004. (Court Reporter Dee Coker) (vmc, ) (Entered: 08/30/2004)
29 ORDER that another conference is set for 10/6/2004, at 08:30 AM before Honorable Myron H. Thompson; Respondents are to make arrangements for the conference to be conducted by telephone. Signed by Judge Myron H. Thompson on 8/23/04. (furn: yg hc sc)(vmc, ) (Entered: 08/23/2004)
30 Per Curiam Opinion received from USCA Eleventh Circuit of Opinion Entered on July 20, 2004. REVERSED and REMANDED (ydw, ) (Entered: 08/23/2004)
31 USCA JUDGMENT issued as MANDATE OF USCA as to 03-15095-p, 18 Notice of Appeal, filed by David Larry Nelso. Judgment of the district court is REVERSED and REMANDED. (ydw, ) (Entered: 08/23/2004)
32 ORDER, Judgment, and Decree of the court that the final jugment of this court made and entered on 10/7/03 (Doc. no. 14) is vacated. Signed by Judge Myron H. Thompson on 8/26/04. (vmc, ) (Entered: 08/26/2004)
Case reopened - See Order of 8/26/04 - Doc. #32 (No PDF attached to this document entry)(vmc, ) (Entered: 08/26/2004)

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09/13/2004 09/22/2004 09/24/2004
09/24/2004 09/24/2004 09/24/2004 10/06/2004 10/06/2004 10/07/2004
10/15/2004
10/20/2004 10/29/2004

34 Letter from State of Alabama Office of the Attorney General with September 7, 2004 - Report on Venous Access for David Larry Nelson Conducted August 23, 2004. (vmc, ) (Entered: 09/14/2004)
35 NOTICE by Donal Campbell Notice of Withdrawal (Billingsley, Michael) (Entered: 09/22/2004)
36 Order treating the notice of withdrawal (Doc. #35) as a motion to withdraw attorney; Granting Motion to withdraw Michael D. Billingsley. Signed by Myron H. Thompson(vmc, ) Modified on 9/24/2004 - to correct docket text (vmc, ). Modified on 9/24/2004 to correct file date to 9/24/04 (vmc, ). (Entered: 09/24/2004)
NOTICE of Docket Text Correction re 36 Order & MOTION to Withdraw as Attorney - Modified on 9/24/2004 - to correct docket text (vmc, ). (No PDF attached)(vmc, ) (Entered: 09/24/2004)
NOTICE of Docket Text Correction re 36 Order & MOTION to Withdraw as Attorney - to correct file date of order is 9/24/04. (No PDF attached)(vmc, ) (Entered: 09/24/2004)
*** Attorney Michael B. Billingsley terminated per Order of 9/24/04 Doc. #36. (No PDF attached) (vmc, ) (Entered: 09/24/2004)
37 Minute Entry for proceedings held before Judge Myron H. Thompson : Telephone Status Conference held on 10/6/2004. (Court Reporter Mitchell Reisner.) (vmc, ) (Entered: 10/06/2004)
38 Letter from Plaintiff's counsel re: Physician's report and state's protocol for execution. (vmc, ) (Entered: 10/06/2004)
39 ORDER as follows: Defendants shall not use the "cut-down" procedure on plaintiff; Defendants shall use only one of the following procedures on plaintiff: the peripheral-venous-access procedure, and, if that procedure is not feasible, then the percutaneous-central-venous-access procedure as further set out in order; Status Conference set for 10/20/2004 08:30 AM by telephone before Honorable Myron H. Thompson. Signed by Judge Myron H. Thompson on 10/7/04. (furn: yg hc sc)(vmc, ) (Entered: 10/07/2004)
40 ORDER Pursuant to the order entered on 10/7/04 (Doc. No. 39), it is Ordered that Honorable David Boyd, 2 Dexter Avenue, Montgomery, AL, 36101, is appointed to assist the court in finding a medical expert for the court; Mr. Boyd, after conferring with counsel for the parties, shall set up a conference call with the court and counsel to discuss how he will proceed; The clerk of the court shall assist Mr. Boyd in obtaining a copy of the file in this case. Signed by Judge Myron H. Thompson on 10/15/04. (vmc, ) (Entered: 10/15/2004)
41 ORDER that the status conference set for today, 10/20/04, is canceled as further set out in order. Signed by Judge Myron H. Thompson on 10/20/04. (vmc, ) (Entered: 10/20/2004)
42 MOTION to Dismiss by Donal Campbell, Grantt Culliver. (Crenshaw, James) (Entered: 10/29/2004)

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10/29/2004 11/02/2004
11/08/2004 11/12/2004 11/12/2004 11/15/2004 11/16/2004 11/18/2004 02/28/2005
03/03/2005 03/07/2005 03/17/2005 03/18/2005 03/22/2005

Motion to dismiss is treated as a MOTION for Summary Judgment by Donal Campbell, Grantt Culliver. (vmc, ) (No PDF attached to this docket entry; see doc. #42) . (Entered: 11/02/2004)
43 ORDER as follows: 1) Defendants' motion to dismiss is treated as a motion for summary judgment; 2)Motion Submission Deadline set for 11/19/2004; 3) Brief due by 11/19/2004. Signed by Judge Myron H. Thompson on 11/2/04. (vmc, ) (Entered: 11/02/2004)
44 Proposed MOTION for Disbursement of Funds for Transcripts by David Larry Nelson. (McIntyre, Michael) (Entered: 11/08/2004)
45 ORDER granting 44 Motion for Disbursement of Funds for transcripts; The clerk of the court is directed to make arrangements to pay for the transcripts . Signed by Judge Myron H. Thompson on 11/12/04. (vmc, ) (Entered: 11/12/2004)
TRANSCRIPT of Proceedings - In-Chambers Status Conference held on 10/6/04 before Judge Myron H. Thompson. Court Reporter: Mitchell P. Reisner. (vmc, ) (Entered: 11/15/2004)
TRANSCRIPT of Proceedings of In-Chambers Status Conference held on 8/6/04 before Judge Myron H. Thompson. Court Reporter: Mitchell P. Reisner. (vmc, ) (Entered: 11/16/2004)
TRANSCRIPT of Proceedings of telephone conference held on 8/18/04 before Judge Myron H. Thompson. Court Reporter: Dee Coker. (vmc, ) (Entered: 11/17/2004)
46 MOTION for Extension of Time to File Response/Reply by David Larry Nelson. (McIntyre, Michael) (Entered: 11/18/2004)
47 ORDER that special master David Boyd is to arrange for an on-the-record status meeting, by Telephone Conference call set for 3/3/2005, 08:30 AM before Honorable Myron H. Thompson; The court would like to discuss where matters are in this case. Signed by Judge Myron H. Thompson on 2/28/05. (furn: yg hc sc)(vmc, ) (Entered: 02/28/2005)
48 Minute Entry for proceedings held before Judge Myron H. Thompson : Telephone Status Conference held on 3/3/2005. (Court Reporter Reisner.) (vmc, ) (Entered: 03/04/2005)
49 ORDER that Special Master David Boyd is to file his report on or before 3/17/05. Signed by Judge Myron H. Thompson on 3/7/05. (vmc, ) (Entered: 03/07/2005)
50 NOTICE by David Boyd of Report on Independent Medical Expert (Attachments: # 1)(Boyd, David) (Entered: 03/17/2005)
51 MOTION Defendants' Request for Ruling on Summary Judgment Motion by Donal Campbell. (Crenshaw, James) (Entered: 03/18/2005)
52 ORDER directing counsel for the defs to organize a Telephone Conference call set for 3/24/2005 10:00 AM before Honorable Myron H. Thompson to address issues, as further set out in order. Signed by Judge Myron H. Thompson on 3/22/05. Furnished to YG, HC & SC(djy, ) (Entered: 03/22/2005)

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03/29/2005 03/29/2005 04/05/2005
04/12/2005 04/12/2005 04/13/2005 04/14/2005
04/15/2005 04/22/2005 04/22/2005
04/25/2005
04/25/2005 04/27/2005

53 ORDER resetting Telephone Conference from 3/24/05 to 4/7/2005 10:00 AM before Honorable Myron H. Thompson as further set out. Signed by Judge Myron H. Thompson on 3/29/05. (furn: yg hc sc)(vmc, ) (Entered: 03/29/2005)
54 MOTION TO BE EXCUSED FROM CONFERENCE OR TO RESCHEDULE by David Boyd. (Boyd, David) (Entered: 03/29/2005)
55 ORDER resetting Telephone Conference from 4/7/05 to 4/12/2005 08:30 AM by telephone before Honorable Myron H. Thompson; Counsel for defendants are to arrange for the hearing to be conducted by telephone; Denying as moot 54 MOTION TO BE EXCUSED FROM CONFERENCE OR TO RESCHEDULE filed by David Boyd,. Signed by Judge Myron H. Thompson on 4/5/05. (furn: yg hc sc)(vmc, ) (Entered: 04/05/2005)
56 Proposed MOTION for Disbursement of Funds for Transcripts by David Larry Nelson. (McIntyre, Michael) (Entered: 04/12/2005)
57 Minute Entry for proceedings held before Judge Myron H. Thompson : Telephone Conference held on 4/12/2005. (Court Reporter Reisner.) (vmc, ) (Entered: 04/13/2005)
TRANSCRIPT of Proceedings of In-Chambers Telephone Status Conference held on 4/12/05 before Judge Myron H. Thompson. Court Reporter: Reisner. (vmc, ) (Entered: 04/14/2005)
58 ORDER granting 56 Motion for Transcript; The clerk of the court is directed to take appropriate arrangements for providing the transcript to counsel for plaintiff at no costs . Signed by Judge Myron H. Thompson on 4/14/05. (vmc, ) (Entered: 04/14/2005)
Transcript referenced in doc.58 was mailed to counsel for plaintiff. (No PDF attached to this docket entry)(vmc, ) (Entered: 04/15/2005)
59 RESPONSE to Motion re 42 MOTION to Dismiss filed by David Larry Nelson. (McIntyre, Michael) (Entered: 04/22/2005)
60 Second AMENDED COMPLAINT for Injunctive and Declaratory Relief (Second) against all defendants, filed by David Larry Nelson. (Attachments: # 1)(McIntyre, Michael) Modified on 4/25/2005 - to correct text to read Second Amended Complaint for Injunctive and Declaratory Relief; instead of Amended Complaint(vmc, ). (Entered: 04/22/2005)
NOTICE of Docket Text Correction re 60 Amended Complaint - Modified on 4/25/2005 - to correct text to read Second Amended Complaint for Injunctive and Declaratory Relief; instead of Amended Complaint(vmc, )., (No PDF attached to this notice)(vmc, ) (Entered: 04/25/2005)
61 NOTICE by David Boyd of Report of Special Master Regarding Absence of Conflict of Proposed Medical Expert (Boyd, David) (Entered: 04/25/2005)
62 NOTICE by David Boyd of Report Regarding Proposed Medical Expert's Request to be Removed From Consideration (Boyd, David) (Entered: 04/27/2005)

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05/04/2005 05/05/2005
05/12/2005 05/23/2005 06/16/2005 09/30/2005 05/23/2006
06/07/2006 06/08/2006 06/13/2006
06/13/2006 06/15/2006

63 MOTION to Dismiss Second Amended Complaint by Donal Campbell. (Crenshaw, James) Modified on 5/12/2005 - Create relationship to doc. 60 second amended complaint (vmc, ). (Entered: 05/04/2005)
64 ORDER re 63 MOTION to Dismiss Second Amended Complaint filed by Donal Campbell, Motion Submission Deadline set for 5/23/2005, with all briefs due by said date. Signed by Judge Myron H. Thompson on 5/5/05. (vmc, ) (Entered: 05/05/2005)
NOTICE of Docket Text Correction re 63 MOTION to Dismiss Second Amended Complaint - Create relationship to doc. 60 - second amended complaint (No PDF attached to this notice)(vmc, ) (Entered: 05/12/2005)
65 RESPONSE to Motion re 63 MOTION to Dismiss Second Amended Complaint filed by David Larry Nelson. (McIntyre, Michael) (Entered: 05/23/2005)
66 NOTICE by David Boyd of Report of Special Master on Medical Expert (Attachments: # 1 Exhibit A; # 2 Exhibit B; # 3 Exhibit C)(Boyd, David) Modified on 6/17/2005 to identify exhibits (cc, ). (Entered: 06/16/2005)
67 ORDER denying as moot 46 Motion for Extension of Time to File Response. Signed by Judge Myron H. Thompson on 9/30/05. (ajr, ) (Entered: 09/30/2005)
68 ORDER Setting on-the-record Status Conference for 6/7/2006 08:30 AM by telephone before Honorable Myron H. Thompson as further set out. Signed by Judge Myron H. Thompson on 5/23/06. (furn: yg hc sc ag)(vma, ) (Entered: 05/23/2006)
69 Minute Entry for on-the-record Telephone STATUS CONFERENCE held before Judge Myron H. Thompson on 6/7/2006. (Court Reporter Mitchell Reisner.) (snc) (Entered: 06/07/2006)
70 MOTION for Disbursement of Funds for Transcript by David Larry Nelson. (McIntyre, Michael) (Entered: 06/08/2006)
71 ORDER granting 70 Motion for Transcript. The clerk of the court is directed to make appropriate arrangements for providing the transcript to counsel for plaintiff at no costs . Signed by Judge Myron H. Thompson on 6/13/06. (vma, ) (Entered: 06/13/2006)
72 ORDER It is Ordered that the party is to file a brief by no later than 6/19/06, indicating (1) the issue and (2) the impact of Hill on the issue. Signed by Judge Myron H. Thompson on 6/13/06. (vma, ) (Entered: 06/13/2006)
73 ORDER It is Ordered as follows: 1) The report of the special master on medical expert doc. 66 is accepted; 2) Warren Bagley, M.D., is designated as the court's independent medical expert; 3) The court understands the special master to suggest that the instructions to Dr. Bagley should differ, at least, inpart, from those outlined earlier, on 3/22/05 doc. 52, for court court expert; The special master is, therefore, to confer with counsel for all parties and, by no later than 6/28/06, is to submit to the court a proposal as to what specific instructions Dr. Bagley should receive as further set out; 4) Setting an on-the-record Status Conference for 6/29/2006 08:30 AM by telephone before Honorable Myron H. Thompson as further set out in order. Signed by Judge Myron H. Thompson on

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06/19/2006
06/20/2006 06/20/2006 06/22/2006
06/23/2006 06/26/2006
07/07/2006 07/26/2006
07/27/2006 07/27/2006 07/27/2006 07/28/2006

6/15/06. (furn: yg hc sc ag)(vma, ) (Entered: 06/15/2006)
74 BRIEF/MEMORANDUM in Support REGARDING THE DECISION IN HILL V. MCDONOUGH, _____ S.CT. ______, 2006 WL 1584710 (JUNE 12, 2006) filed by David Larry Nelson. (McIntyre, Michael) Modified on 6/20/2006 - to create relationship to doc. 72 order (vma, ). (Entered: 06/19/2006)
NOTICE of Docket Text Correction re 74 BRIEF/MEMORANDUM in Support, - Modified on 6/20/2006 - to create relationship to doc. 72 order (No PDF attached to this notice)(vma, ) (Entered: 06/20/2006)
75 MOTION to Continue Status Conference by Richard F. Allen. (Crenshaw, James) (Entered: 06/20/2006)
76 ORDER granting 75 MOTION to Continue Status Conference filed by Richard F. Allen; Resetting on-the-record Status Conference from 6/29/06 to 7/6/2006 08:30 AM by telephone before Honorable Myron H. Thompson. Signed by Judge Myron H. Thompson on 6/22/06. (furn: yg hc sc ag)(vma, ) (Entered: 06/22/2006)
77 MOTION to Continue Status Conference by Richard F. Allen. (Crenshaw, James) (Entered: 06/23/2006)
78 ORDER granting 77 MOTION to Continue Status Conference filed by Richard F. Allen; Resetting on-the-record Status Conference from 7/6/06 to 7/27/2006 08:30 AM by telephone before Honorable Myron H. Thompson. Signed by Judge Myron H. Thompson on 6/26/06. (furn: yg hc sc ag)(vma, ) . (Entered: 06/26/2006)
79 TRANSCRIPT of In-Chambers telephone status conference (PDF available for court use only) held on June 7, 2006 before Judge Thompson. Court Reporter: Reisner. (djy, ) (Entered: 07/07/2006)
80 Response to Order Report Of Special Master Regarding Proposed Order Governing The Responsibilities Of The Court's Independent Medical Expert by David Boyd. (Attachments: # 1)(Boyd, David) Modified on 7/27/2006 - to create relationship to doc. 73 order(vma, ). (Entered: 07/26/2006)
NOTICE of Docket Text Correction re 80 Response to Order - Modified on 7/27/2006 - to create relationship to doc. 73 order. (No PDF attached to this notice)(vma, ) (Entered: 07/27/2006)
81 Minute Entry for On-The-Record Status Conference held before Judge Myron H. Thompson on 7/27/2006. (Court Reporter Mitchell Reisner.) (ag, ) (Entered: 07/27/2006)
82 MOTION for Disbursement of Funds for Transcript by David Larry Nelson. (McIntyre, Michael) (Entered: 07/27/2006)
83 ORDER it is Ordered that Dr. Bagley assist the Court in understanding outstanding issues of fact including, but not limited to the following as further set out in order; Therefore, it is further Ordered that Warren Bagley, M.D., as the Court's independent medical expert, will do a physical examination of Plaintiff David Nelson and produce a written report to the Court in order to assist it in understanding the questions and issues raised in this case as specified in this order; The Special Master will remain available to consult with and assist Dr. Bagley with his report as appropriate; Counsel for the parties and the physician

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07/28/2006 08/08/2006 08/15/2006 08/15/2006
08/16/2006 08/16/2006 08/16/2006 08/17/2006 08/31/2006 09/08/2006

consultants retained by them may attend the physical examination, but are not to interfere or attempt to participate in any manner, verbally, physically, or otherwise; Counsel for the parties may provide the Special Master with documentation for Dr. Bagley to review prior to his physical examination of David Nelson . Signed by Judge Myron H. Thompson on 7/28/06. (vma, ) (Entered: 07/28/2006)
84 ORDER granting 82 Motion for Transcript; The clerk of the court is directed to make appropriate arrangements for providing the transcript to counsel for plaintiff at no costs . Signed by Judge Myron H. Thompson on 7/28/06. (vma, ) (Entered: 07/28/2006)
85 TRANSCRIPT of Proceedings of In-Chambers Telephone Status Conference (PDF available for court use only) held on 7/27/06 before Judge Myron H. Thompson. Court Reporter: Mitchell P. Reisner. (vma, ) (Entered: 08/08/2006)
86 NOTICE by David Boyd of filing Special Master's Report Regarding the Independent Medical Expert's Examination of Plaintiff (Boyd, David) Modified on 8/16/2006 - to create relationship to doc. 83 order (vma, ). (Entered: 08/15/2006)
87 ORDER TO SHOW CAUSE Based on the report of the special master regarding the independent medical expert's examination of the plaintiff doc. no. 86 filed by David Boyd; it is Ordered that the parties show cause as to why the court should not enter an order that medical expert should actually attempt to gain venous access through the peripheral vein access procedure only if it becomes necessary for the medical expert to conduct that procedure in order to express a medical opinion about the feasibility of gaining venous access through said procedure; otherwise the medical expert may use a Sonosite; Show Cause Response due by 8/29/2006.. Signed by Judge Myron H. Thompson on 8/15/06. (vma, ) (Entered: 08/15/2006)
NOTICE of Docket Text Correction re 86 Notice (Other) - Modified on 8/16/2006 - to create relationship to doc. 83 order. (No PDF attached to this notice)(vma, ) (Entered: 08/16/2006)
88 MOTION for Extension of Time to File Show Cause by David Larry Nelson. (McIntyre, Michael) (Entered: 08/16/2006)
MEMORANDUM in Support re 88 MOTION for Extension of Time to File Show Cause filed by David Larry Nelson. (No PDF attached; contained within doc. 88)(vma, ) (Entered: 08/17/2006)
89 ORDER granting 88 MOTION for Extension of Time to File Show Cause filed by David Larry Nelson. Show Cause Response due by 9/8/2006 to respond to the show-cause order (doc. no. 87). Signed by Judge Myron H. Thompson on 8/17/06. (vma, ) (Entered: 08/17/2006)
90 MOTION for Reconsideration re 83 Order,,,, (Defendants' Motion to Reconsider Allowing Physician Consultants to Attend Physical Examination Performed by Court's Independent Expert) by Donal Campbell. (Crenshaw, James) (Entered: 08/31/2006)
91 MOTION for Extension of Deadline in Which to Show Cause re 87 Order to Show Cause,, by David Larry Nelson. (McIntyre, Michael) (Entered: 09/08/2006)

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09/15/2006 09/15/2006 09/15/2006 09/15/2006 09/15/2006 09/15/2006 09/19/2006 09/21/2006 09/21/2006

MEMORANDUM in Support re 91 MOTION for Extension of Deadline in Which to Show Cause re 87 Order to Show Cause, filed by David Larry Nelson. (No PDF attached; contained within doc. 91(vma, ) (Entered: 09/11/2006)
92 ORDER granting 91 MOTION for Extension of Deadline in Which to Show Cause re 87 Order to Show Cause,, filed by David Larry Nelson. Show Cause Response due by 9/15/2006. Signed by Judge Myron H. Thompson on 9/11/06. (vma, ) (Entered: 09/11/2006)
93 ORDER re 90 MOTION for Reconsideration re 83 Order,,,, (Defendants' Motion to Reconsider Allowing Physician Consultants to Attend Physical Examination Performed by Court's Independent Expert) filed by Donal Campbell, Motion Submission Deadline set for 9/15/2006, with all briefs due by said date. Signed by Judge Myron H. Thompson on 9/11/06. (vma, ) (Entered: 09/11/2006)
94 MOTION for Order for Recordation of Sonsite Results by David Larry Nelson. (McIntyre, Michael) (Entered: 09/15/2006)
95 RESPONSE in Opposition re 90 MOTION for Reconsideration re 83 Order,,,, (Defendants' Motion to Reconsider Allowing Physician Consultants to Attend Physical Examination Performed by Court's Independent Expert) filed by David Larry Nelson. (McIntyre, Michael) (Entered: 09/15/2006)
96 Response to order to show cause re 87 Order to Show Cause,, filed by David Larry Nelson. (McIntyre, Michael) Modified on 9/18/2006 - to show Reponse to show cause; not Reply to Response (vma, ). (Entered: 09/15/2006)
MEMORANDUM in Support re 94 MOTION for Order for Recordation of Sonsite Results filed by David Larry Nelson. (No PDF attached; contained within doc. 94)(vma, ) (Entered: 09/18/2006)
MEMORANDUM in Support re 95 Response in Opposition to Motion, filed by David Larry Nelson. (No PDF attached; contained within doc. 95)(vma, ) (Entered: 09/18/2006)
MEMORANDUM in Support re 96 Response to order to show cause filed by David Larry Nelson. (No PDF attached; contained within doc. 96)(vma, ) Modified on 9/18/2006 - to show Response; not reply (vma, ). (Entered: 09/18/2006)
97 ORDER re 94 MOTION for Order for Recordation of Sonsite Results filed by David Larry Nelson, Motion Submission Deadline set for 9/21/2006, with all briefs due by said date. Signed by Judge Myron H. Thompson on 9/19/06. (vma, ) (Entered: 09/19/2006)
98 Objection to re 94 MOTION for Order for Recordation of Sonsite Results (Objection to Plaintiff's Motion to Record Sonosite Examination) filed by Richard F. Allen. (Crenshaw, James) (Entered: 09/21/2006)
99 Reply to response to order to show cause re 96 Reply to response to order to show cause (Defendants' Reply to Plaintiff's Response to the Court's August 15, 2006, Show Cause Order) filed by Grantt Culliver. (Crenshaw, James) (Entered: 09/21/2006)

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10/10/2006 10/10/2006 10/10/2006 10/16/2006 10/17/2006

100 REPLY to Response to Motion re 94 MOTION for Order for Recordation of Sonsite Results filed by David Larry Nelson. (McIntyre, Michael) (Entered: 09/21/2006)
101 Reply to response to order to show cause re 99 Reply to response to order to show cause (Plaintiff's Response to Defendants' Reply) filed by David Larry Nelson. (McIntyre, Michael) (Entered: 09/21/2006)
MEMORANDUM in Support re 100 Reply to Response to Motion filed by David Larry Nelson. (No PDF attached; contained within doc. 101 for PDF)(vma, ) (Entered: 09/22/2006)
102 ORDER as follows: 1) The request for ruling 51 is granted; 2) denying without prejudice 42, 63 Motion to Dismiss and motion for summary judgment as further set out. Signed by Judge Myron H. Thompson on 9/26/06. (Attachments: # 1 appeals checklist) (vma, ) (Entered: 09/26/2006)
103 Second MOTION for Reconsideration re 83 Order,,,, (Defendants' Renewed Motion to Reconsider Allowing Physician Consultants to Attend Physical Examination Performed by Court's Independent Expert) by Donal Campbell. (Crenshaw, James) (Entered: 10/05/2006)
104 ORDER re 90 MOTION for Reconsideration re 83 Order,,,, (Defendants' Motion to Reconsider Allowing Physician Consultants to Attend Physical Examination Performed by Court's Independent Expert) filed by Donal Campbell,, 94 MOTION for Order for Recordation of Sonsite Results filed by David Larry Nelson,, 103 Second MOTION for Reconsideration re 83 Order,,,, (Defendants' Renewed Motion to Reconsider Allowing Physician Consultants to Attend Physical Examination Performed by Court's Independent Expert) filed by Donal Campbell, On-the-record Oral Argument set for 10/10/2006 10:00 AM n by telephone before Honorable Myron H. Thompson. Signed by Judge Myron H. Thompson on 10/6/06. (furn: yg hc sc ag)(vma, ) (Entered: 10/06/2006)
105 Minute Entry for Oral Argument re Motions for Reconsideration (83) Order and (94) Motion for Recordation held before Judge Myron H. Thompson on 10/10/2006. (Court Reporter Mitchell Reisner.) (ag, ) (Entered: 10/10/2006)
106 ORDER denying 90, 103 Motions to Reconsider allowing physician consultants to attend physical examination performed by court's independent expert for the following reasons as further set out in order . Signed by Judge Myron H. Thompson on 10/10/06. (vma, ) (Entered: 10/10/2006)
107 ORDER denying as moot 94 Motion for Order for recordation of sonosite results . Signed by Judge Myron H. Thompson on 10/10/06. (vma, ) (Entered: 10/10/2006)
108 MOTION for Disbursement of Funds for Transcripts by David Larry Nelson. (McIntyre, Michael) (Entered: 10/16/2006)
109 ORDER granting 108 Motion for Disbursement of Funds for transcripts; The clerk of the court is directed to make arrangements to pay for the transcripts . Signed by Judge Myron H. Thompson on 10/17/06. (vma, ) (Entered: 10/17/2006)

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11/01/2006 11/01/2006 11/03/2006 11/03/2006 11/03/2006 11/03/2006 11/06/2006 11/14/2006 11/14/2006 11/15/2006 11/15/2006 11/15/2006 11/15/2006

110 NOTICE of Submission of Expert Report of Independent Medical Expert by David Boyd (Attachments: # 1 Attachment A)(vma, ) (Entered: 11/01/2006)
111 ORDER that, on or before 11/8/06, the parties are to file briefs suggesting: 1) The conclusions the court should draw from the report; and 2) How this case should now proceed in light of the report. Signed by Judge Myron H. Thompson on 11/1/06. (vma, ) (Entered: 11/01/2006)
112 TRANSCRIPT of Proceedings of In-chambers Telephone Status Conference (PDF available for court use only) held on 10/10/06 before Judge Myron H. Thompson. Court Reporter: Mitchell P. Reisner. (vma, ) (Entered: 11/03/2006)
113 MOTION for Extension of Time to File the Plaintiff's Brief Regarding the Report of the Independent Medical Expert by David Larry Nelson. (McIntyre, Michael) (Entered: 11/03/2006)
MEMORANDUM in Support re 113 MOTION for Extension of Time to File the Plaintiff's Brief Regarding the Report of the Independent Medical Expert filed by David Larry Nelson. (No PDF attached; contained within doc. 113) (vma, ) (Entered: 11/06/2006)
Mail Returned as Undeliverable. Mail sent to Joe Wilson Morgan III; Order of 10/10/06 returned w/notation: return to sender; attempted - not known; unable to forward (vma, ) (Entered: 11/06/2006)
114 ORDER granting 113 Motion for Enlargement of Time to File Brief, etc.; the parties are allowed until 11/15/06, to file their briefs as required in this court's order of 11/1/06 (doc. no. 111). Signed by Judge Myron H. Thompson on 11/6/06. (vma, ). (Entered: 11/06/2006)
115 MOTION for Extension of Time to File The Plaintiff's Brief Regarding The Report Of The Independent Medical Expert by David Larry Nelson. (McIntyre, Michael) (Entered: 11/14/2006)
MEMORANDUM in Support thereof re 115 MOTION for Extension of Time to File The Plaintiff's Brief Regarding The Report Of The Independent Medical Expert filed by David Larry Nelson. (No PDF attached; contained within doc. 115)(vma, ) (Entered: 11/15/2006)
116 Objection to re 115 MOTION for Extension of Time to File The Plaintiff's Brief Regarding The Report Of The Independent Medical Expert filed by Richard F. Allen. (Crenshaw, James) (Entered: 11/15/2006)
117 REPLY to Response to Motion re 115 MOTION for Extension of Time to File The Plaintiff's Brief Regarding The Report Of The Independent Medical Expert filed by David Larry Nelson. (McIntyre, Michael) (Entered: 11/15/2006)
118 BRIEF/MEMORANDUM in Support re 111 Order, (Defendants' Brief on the Findings of the Court's Independent Medical Expert and Motion for Summary Judgment) filed by Richard F. Allen. (Crenshaw, James) (Entered: 11/15/2006)
MOTION for Summary Judgment by Richard F. Allen. (No PDF attached; contained within doc. 118) (vma, ) (Entered: 11/16/2006)

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11/16/2006
11/16/2006 11/28/2006 11/29/2006 11/29/2006 12/01/2006
12/01/2006 12/01/2006 12/01/2006 12/01/2006 12/01/2006 12/04/2006

119 ORDER as follows: 1) granting plaintiff's 115 Motion for Enlargement of Time as set forth in this order; 2) The parties are allowed until 11/29/06, to file their briefs as required in this court's order of 11/1/06 (doc. no. 111); 3) There will be no further extensions . Signed by Judge Myron H. Thompson on 11/16/06. (vma, ) (Entered: 11/16/2006)
120 ORDER re 118 Motion for summary judgment filed by Richard F. Allen, Motion Submission Deadline set for 12/1/2006, with any opposing brief and evidentiary materials due by said date. Signed by Judge Myron H. Thompson on 11/16/06. (vma, ) (Entered: 11/16/2006)
Due to the retirement of Judge Vanzetta P. McPherson this case has been reassigned to Judge Wallace Capel, Jr. as referral judge (NO PDF document attached to this notice). (cc, ) (Entered: 11/28/2006)
121 BRIEF/MEMORANDUM in Support re 111 Order, filed by David Larry Nelson. (McIntyre, Michael) (Entered: 11/29/2006)
BRIEF in Support thereof re 121 BRIEF/MEMORANDUM in Support filed by David Larry Nelson. (No PDF attached; contained within doc. 121)(vma, ) (Entered: 12/01/2006)
122 RESPONSE to Motion re 118 MOTION for Summary Judgment filed by David Larry Nelson. (McIntyre, Michael) Modified on 12/1/2006 - to create relationship to doc. 118 m/sum jgm (vma, ). Additional attachment(s) added on 12/1/2006 (vma, ). Additional attachment(s) added on 12/1/2006 (vma, ). Additional attachment(s) added on 12/1/2006 (vma, ). (Entered: 12/01/2006)
123 [STRICKEN PER NOTICE OF NON-COMPLIANCE]****This pleading is discovery and is not allowed pursuant to Local Rule 5.1 NON-FILING OF CIVIL DISCOVERY***REQUEST for Admissions by David Larry Nelson.(McIntyre, Michael) Modified on 12/4/2006 (vma, ). (Entered: 12/01/2006)
124 Evidentiary Submission re 118 MOTION for Summary Judgment Statement of Material Facts filed by David Larry Nelson. (McIntyre, Michael) Modified on 12/4/2006 - to create relationship to doc. 118 m/sum jgm.(vma, ). (Entered: 12/01/2006)
NOTICE of Docket Text Correction re 122 Response to Motion - Modified on 12/1/2006 - to create relationship to doc. 118 m/sum jgm (No PDF attached to this notice)(vma, ) (Entered: 12/01/2006)
MEMORANDUM in Support thereof re 122 Response to Motion filed by David Larry Nelson. (No PDF attached; contained within doc. 122)(vma, ) (Entered: 12/01/2006)
125 NOTICE of Correction attaching corrected PDF re 122 Response to Motion, (Attachments: # 1 corrected PDF# 2 correction - Exh 1# 3 correction Exh 2)(vma, ) (Entered: 12/01/2006)
126 NOTICE of Non-Compliance re 123 Request for Admissions (vma, ) (Entered: 12/04/2006)

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12/04/2006 02/15/2007 02/16/2007 02/20/2007
02/28/2007 06/08/2007
06/14/2007 06/14/2007 06/21/2007 06/21/2007
06/22/2007
07/03/2007 07/05/2007

NOTICE of Docket Text Correction re 124 Evidentiary Submission - Modified on 12/4/2006 - to create relationship to doc. 118 m/sum jgm. (No PDF attached to this notice)(vma, ) (Entered: 12/04/2006)
127 MOTION for Order for the Release of the Plaintiff's Medical Records by David Larry Nelson (w/Exhibits 1 & 2 attached). (McIntyre, Michael) Modified on 2/16/2007 - to show Exhibits 1 & 2 attached) (vma, ). (Entered: 02/15/2007)
NOTICE of Docket Text Correction re 127 MOTION for Order for the Release of the Plaintiff's Medical Records - Modified on 2/16/2007 - to show Exhibits 1 & 2 attached). (No PDF attached to this notice) (vma, ) (Entered: 02/16/2007)
128 ORDER granting 127 Motion for a Court Order for the Release of the Plaintiff's Medical Records; the dft shall forward to the plaintiff copies of the plaintiff's medical records from the period of October, 2006 to the present; The dft is further ordered to file a notice of notice of compliance with this court's order. Signed by Judge Wallace Capel Jr. on 2/20/07. (vma, ) (Entered: 02/20/2007)
129 NOTICE by Richard F. Allen re 128 Order on Motion for Order, (Defendants' Notice of Compliance) (Crenshaw, James) (Entered: 02/28/2007)
130 ORDER Setting on-the-record ORAL ARGUMENT re: 118 MOTION for Summary Judgment for 6/15/2007 02:00 PM by telephone before Honorable Myron H. Thompson; directing the defendants to arrange for the oral argument by telephone. Signed by Judge Myron H. Thompson on 6/8/07. Furnished to YG, HC, SC & AG.(djy, ) (Entered: 06/08/2007)
131 MOTION to Continue by David Larry Nelson. (McIntyre, Michael) (Entered: 06/14/2007)
132 Second MOTION for Order for the Release of the Plaintiff's Medical Records by David Larry Nelson. (McIntyre, Michael) (Entered: 06/14/2007)
133 Supplemental MOTION to Continue by David Larry Nelson. (McIntyre, Michael) (Entered: 06/21/2007)
134 ORDER Resetting Oral Argument for 6/22/2007 02:00 PM by telephone before Honorable Myron H. Thompson as further set out. Denying as moot 131 MOTION to Continue filed by David Larry Nelson. Signed by Judge Myron H. Thompson on 6/21/07. (furn: yg hc ag sc)(vma, ) (Entered: 06/21/2007)
135 Minute Entry for Oral Argument re 118 Motion for Summary Judgment held before Judge Myron H. Thompson on 6/22/2007 (PDF available for court use only). (Court Reporter Mitchell Reisner.) (ag, ) Additional attachment(s) added on 6/22/2007 (ag, ). (Entered: 06/22/2007)
136 MOTION for Disbursement of Funds for Transcript by David Larry Nelson. (McIntyre, Michael) (Entered: 07/03/2007)
137 TRANSCRIPT of Proceedings of In-Chambers Telephone Conference Oral Argument re: Motion for Summary Judgment (PDF available for court use only) held on June 22, 2007 before Judge Thompson. Court Reporter: Reisner. (djy, ) (Entered: 07/05/2007)

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138 ORDER granting 132 second Motion for a court Order; directing def to forward to plf's counsel copies of plf's medical records, as further set out in order; further ORDERING def to file a notice of compliance with this Court's order . Signed by Judge Wallace Capel Jr. on 7/5/07. (djy, ) (Entered: 07/05/2007)
139 ORDER granting 136 Motion for Disbursement of Funds for transcripts; The clerk of the court is directed to make arrangements to pay for the transcripts. Signed by Judge Myron H. Thompson on 7/9/07. (vma, ) (Entered: 07/09/2007)
140 ORDER granting 133 Motion to Continue to the extent that the parties are to submit Dr. Mark Heath's deposition to the court by 7/12/07. Signed by Judge Myron H. Thompson on 7/9/07. (vma, ) (Entered: 07/09/2007)
141 TRANSCRIPT of Proceedings of (Corrected Verson) In-Chambers Telephone Conference Oral Argument RE: Motion for Summary Judgment (PDF available for court use only) held on 6/22/07 before Judge Myron H. Thompson. Court Reporter: Mitchell P. Reisner. (vma, ) (Entered: 07/12/2007)
142 NOTICE by David Larry Nelson of Deposition (McIntyre, Michael) (Entered: 07/16/2007)
143 NOTICE by David Larry Nelson of Deposition (McIntyre, Michael) (Entered: 08/02/2007)

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 347 F.3d 910 (2003)
David Larry NELSON, Plaintiff-Appellant, v.
Donal CAMPBELL, in his individual and official capacity as Commissioner of the Alabama Department of Corrections, Grantt Culliver, Defendants-Appellees.
No. 03-15095.
United States Court of Appeals, Eleventh Circuit.
October 8, 2003.
911 *911 Harriet Victoria Smith, Michael K. McIntyre, Law Office of Michael McIntyre, Atlanta, GA, for PlaintiffAppellant.
J. Clayton Crenshaw, Michael Boysie Billingsley, Alabama Atty. Gen., Montgomery, AL, for Defendants-Appellees.
Before ANDERSON, HULL and WILSON, Circuit Judges.
ANDERSON, Circuit Judge:
David Larry Nelson is an Alabama inmate convicted of capital murder and sentenced to death. On October 6, 2003, three days prior to his scheduled execution, Nelson filed a 42 U.S.C. § 1983 action in the Middle District of Alabama. In his complaint, Nelson asserts that he has severely compromised veins and that Alabama's proposed use of a "cut-down" procedure to gain venous access (if access to a suitable vein cannot be achieved) as part of the lethal injection procedure constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.[1] Nelson further asserts a state law claim, pursuant to 28 U.S.C. § 1367, alleging that he has been denied access to his physician in violation of Alabama law. Among other relief, Nelson requests an order granting injunctive relief and staying his execution scheduled for October 9, 2003. By order dated October 7, 2003, the district court dismissed Nelson's complaint for lack of jurisdiction. We affirm.
As we stated in Hill v. Hopper, 112 F.3d 1088, 1088-89 (11th Cir.1997), "a prisoner may not circumvent the rules regarding second or successive habeas petitions by filing a § 1983 claim." See also Felker v. Turpin, 101 F.3d 95 (11th Cir.1996); Spivey v. State Bd. of Pardons and Paroles, 279 F.3d 1301 (11th Cir.2002).
The full procedural history of this case prior to the instant § 1983 claim is set out in detail in Nelson v. Alabama, 292 F.3d 1291, 1293-94 (11th Cir.2002). However, for the purposes of this appeal it is sufficient to state that Nelson previously filed a federal habeas petition on April 14, 1997, alleging error due to the trial court's failure to conduct a Faretta hearing prior to allowing him to proceed pro se at his 1994 re-sentencing hearing. Nelson v. Alabama, 292 F.3d at 1294.[2]
912 *912 Because Nelson has previously filed a federal habeas petition, we are confronted with the question of whether Nelson's complaint seeking relief under 42 U.S.C. § 1983 constitutes the "functional equivalent" of a second or successive habeas petition, such that it would be subject to the requirements of 28 U.S.C. § 2244. Fugate v. Dep't of Corrs., 301 F.3d 1287, 1288 (11th Cir.2002); Hill v. Hopper, 112 F.3d at 1089; Felker v. Turpin, 101 F.3d at 96. Nelson's § 1983 claim alleges that Alabama's proposed possible[3] use of the "cut-down" procedure to gain venous access as part of the lethal injection procedure constitutes cruel and unusual punishment. We addressed a similar § 1983 claim in Fugate v. Department of Corrections, 301 F.3d 1287. The plaintiff in Fugate asserted, among other challenges to the State of Georgia's lethal injection procedure, that the use of a "cut-down" procedure in the absence of a suitable vein violated the Eighth and Fourteenth Amendments. Compl. for Injunctive Relief and Decl. J., filed Aug. 12, 2002, ¶¶ 24-28, Fugate v. Dep't of Corrs., No. 02-02219CV-CC (N.D.Ga. Aug. 13, 2002). On appeal, we held that the district court properly dismissed the § 1983 action to "enjoin and restrain the defendants from executing [Fugate] until they [took] certain measure[s] to minimize the risk of unnecessary pain, suffering and mutilation during the execution process," because the § 1983 action

constituted the "functional equivalent" of a second habeas petition. 301 F.3d at 1288. Pursuant to Fugate, we conclude that Nelson's § 1983 claim also constitutes the "functional equivalent" of a second habeas petition as it seeks an immediate stay to the imposition of Nelson's death sentence. See Fugate, 301 F.3d at 1288; Spivey v. State Bd. of Pardons and Paroles, 279 F.3d 1301, 1303 & n. 4. We believe that the instant case is indistinguishable from Fugate; both sought to minimize the risk of unnecessary pain during the execution process, and both sought to stay the execution until appropriate corrective measures were taken.
Because Nelson's § 1983 claim was the "functional equivalent" of a second habeas petition and because Nelson did not get our permission to file a second habeas petition prior to filing in the district court as required by 28 U.S.C. § 2244(b)(3)(A), the district court properly dismissed Nelson's § 1983 claim for lack of jurisdiction to entertain the claim. Fugate, 301 F.3d at 1288; Hill, 112 F.3d at 1089. Moreover, even had Nelson sought our permission to file a second habeas petition, the facts alleged indicate that Nelson's application would have been denied pursuant to 28 U.S.C. § 2244(b)(2) because his cruel and unusual punishment claim neither "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," nor has a "factual predicate for the claim [that] could not have been discovered previously through the exercise of due diligence ... [that] if proven and viewed in light of the evidence as a whole, would be sufficient to establish ... that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." See 28 U.S.C. § 2244(b)(2); Felker v. Turpin, 101 F.3d at 97; In re 913 Provenzano, 215 F.3d 1233, 1235-36 (11th Cir.2000) (involving an application for second habeas petition *913 challenging lethal injection as administered by the State of Florida as cruel and unusual punishment and dismissing it because the claim did not meet the requirements of § 2244(b)(2)).
With respect to Nelson's state law claim, we agree with the district court that it is barred by Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1994).
For the foregoing reasons the district court's judgment dismissing Nelson's complaint is affirmed. Nelson's motion to enjoin defendants from executing him is denied.
The judgment of the district court is AFFIRMED[4], and Nelson's motion for stay of execution is DENIED.[5]
WILSON, Circuit Judge, dissenting:
The majority holds that Nelson's Eighth Amendment claim challenging the unique manner of his execution, filed under 42 U.S.C. § 1983, is the "functional equivalent" of a habeas petition, and is therefore subject to the requirements governing second or successive habeas petitions under 28 U.S.C. § 2244. In light of the clear authority indicating that Nelson's claim should be construed exclusively under § 1983, I strongly disagree with the majority's holding.
Nelson seeks only a temporary stay of execution until concerns regarding the manner of his execution are addressed.[1]
914 A complaint seeking § 1983 relief in the form of a temporary stay of execution *914 is not automatically equivalent to a successive habeas petition. Before making the determination of whether such a stay should be considered a habeas petition or a civil rights action, the court must inquire into the fundamental question of whether the plaintiff is actually seeking to challenge either the fact of his conviction or the duration of his sentence-the touch-stones of habeas relief.[2] If the plaintiff's § 1983 complaint "would necessarily imply the invalidity of his conviction or sentence," the complaint must be dismissed. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). On the contrary, "if the plaintiff's action . . . even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Id. In this case, Nelson was sentenced to death by lethal injection, not by lethal injection subject to any painful secondary procedure that Alabama state prison officials deem appropriate. He thus challenges neither his conviction nor his sentence. Rather, he requests the opportunity to enforce his Eighth Amendment rights; an opportunity that, as noted by the district court, would be wholly absent if this action were deemed the equivalent of a second habeas petition.

Appellees assert that this case is controlled by this court's decision in Fugate v. Dep't of Corrs., 301 F.3d 1287 (11th Cir. 2002) (per curiam). In Fugate, an inmate sought a stay of execution, alleging that the manner in which Georgia administered its lethal injections was cruel and unusual under the Eighth Amendment. We held that the district court lacked jurisdiction to consider Fugate's claim because it was the functional equivalent of a second habeas petition, and he had not previously applied to this court for permission to file such a petition under § 2244 (b)(3)(A). See Fugate, 301 F.3d at 1288. Although the facts in Fugate are similar to those in this case, Fugate does not control the question before us. Fugate was sentenced to death by lethal injection under Georgia law. By seeking a stay of execution on the basis of a challenge to Georgia's method of administering its lethal injections, Fugate was, in effect, attempting to avoid his specific sentence. Therefore, the decision that Fugate's claim was the "functional equivalent" of a successive habeas petition was reasonable.[3] The same is true of our decisions 915 in Hill v. Hopper, 112 F.3d 1088 (11th Cir.1997) (per curiam) (holding that an inmate's constitutional challenge to *915 electrocution as means of execution was the functional equivalent of a second habeas petition) and Felker v. Turpin, 101 F.3d 95 (11th Cir.1996) (per curiam). Here, however, Nelson is not seeking to avoid execution by lethal injection under Alabama law. The "cut down" procedure that is to be used in his execution is not within Alabama's execution procedure, nor has it been reviewed to ensure that it passes muster under the Eighth Amendment. Nelson merely requests that a different, more humane procedure known as "percutaneous central venous cannulation" be used to carry out his execution, rather than the outmoded and painful "cut down" procedure. Regardless of which procedure is used, Nelson will be executed by lethal injection in accordance with his sentence. However, with the implementation of the "cut down" procedure, Nelson's Eighth Amendment rights may be compromised in the process.
The district court noted that the rulings of the Eleventh Circuit appear to make a distinction between cases in which a death row inmate's execution is imminent and cases in which execution is not imminent. In Bradley v. Pryor, 305 F.3d 1287 (11th Cir.2002), which was decided within weeks of Fugate, we held that a death row inmate's § 1983 action for production of DNA evidence was not a successive habeas petition because it "neither directly, nor by necessary implication, attack[ed] the validity of his conviction and sentence." Bradley, 305 F.3d at 1288. In his concurrence, and without further explanation, Chief Judge Edmondson stressed that the fact that Bradley did not request a stay of his execution as part of his claim was an "important" part of his decision. Id. at 1292 (Edmondson, C.J., concurring).
However, I fail to see the relevance of a request for a stay of execution to the question of whether an action is the equivalent of a habeas petition. In Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932 (11th Cir.2001) (per curiam), we held that a death row inmate's motion for a preliminary injunction to stay his execution pending an appeal in a clemency proceeding was equivalent to a second habeas petition. However, we did not hold that every motion for a stay of execution was tantamount to a petition for habeas relief. In fact, we stated in the opinion that "[w]e look to the kind of relief [the inmate] seeks from the federal courts" in determining whether a petitioner seeks habeas relief. Id. at 933. Since the inmate in Gilreath sought clemency, or relief from his penalty, it was clear that his petition for a stay of execution was for the purpose of attacking his sentence. Here, Nelson's request for a stay has no bearing on his conviction or his sentence, nor will it ever. If his stay is granted, he will at most have a limited opportunity to pursue his Eighth Amendment claims. Whatever the outcome, Nelson will be executed.
Nelson asks not to be spared; he asks only that he be executed humanely in accordance with his constitutional rights. The bottom line in this case is that the outcome of Nelson's petition has no effect on either his sentence or his conviction, and therefore cannot properly be construed under any circumstances as the equivalent to a subsequent habeas petition. Therefore, pursuant to Heck v. Humphrey, Nelson's § 1983 action should be allowed to proceed. 512 U.S. at 487, 114 S.Ct. 2364. I respectfully dissent.
[1] The "cut-down" procedure would require making a two inch incision in Nelson's upper arm for the purpose of locating a peripheral vein to perform a central line procedure. The procedure would be performed using local anesthetic.

[2] Additionally, Nelson, through his counsel, acknowledged that he had exhausted all available habeas corpus relief and that he would have to get permission from the Eleventh Circuit in order to file a second or successive habeas petition. Tr. of In-Chambers Tel. Conference, Oct. 7, 2003, at *22-23.
[3] We say "possible" because Alabama first proposes to gain venous access through a femoral vein in Nelson's thigh and if unsuccessful through the external carotid artery in Nelson's neck, neither of which procedure Nelson challenges. It is only if venous access cannot be readily gained in those two areas that Alabama proposes to use the third alternative of the "cut-down" procedure.
[4] While the dissent's distinction of Felker v. Turpin, Hill v. Hopper, and possibly even Gilreath v. State Board of Pardons & Paroles, 273 F.3d 932 (11th Cir.2001), may be plausible, we believe its attempt to distinguish Fugate is flawed. As noted in our opinion, we do not believe Fugate is distinguishable. Fugate was no more attempting to avoid his sentence than is Nelson. Both asserted that they were not challenging their sentence. See Compl. for Injunctive Relief and Decl. J., filed Aug. 12, 2002, at *1, Fugate v. Dep't of Corrs., No. 02-02219-CV-CC (N.D.Ga. Aug. 13, 2002) (first sentence) ("Fugate ... brings this action pursuant to 42 U.S.C. § 1983 challenging not his sentence of death, nor lethal injection as a manner of inflicting death, but the failure of Georgia officials in changing from electrocution to lethal injection to take sufficient measures to minimize the risk of him experiencing extreme and excruciating pain"). In both this case and in Fugate, the appellants suggested less painful alternative ways to implement lethal injection. In short, both cases sought to "enjoin ... the defendants from executing him until they take certain measures to minimize the risk of unnecessary pain." Fugate, 301 F.3d at 1288 (emphasis added).
We also reject the dissent's suggestion that Nelson's attempt to stay his execution is irrelevant to the "functional equivalent" issue. See Spivey v. State Bd. of Pardons and Paroles, 279 F.3d at 1303 (reviewing our decision in Gilreath and stating "In reviewing the denial of a motion for preliminary injunction to stay Gilreath's execution, the Court held that `[w]e look at the kind of relief Appellant seeks and conclude that, however the Appellant describes it, the motion was for habeas corpus relief.'"); see also Spivey, 279 F.3d at 1304 n. 4 (distinguishing the claim in Spivey from the claim in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), stating "There, no execution date was imminent, and there is no indication that Woodard's claims would necessarily imply a challenge to the imposition of a death sentence."). Nelson's prayer to stay his execution directly impedes the implementation of the state sentence, and is indicative of an effort to accomplish via § 1983 that which cannot be accomplished by a successive petition for habeas corpus. Bradley v. Pryor, 305 F.3d 1287 (11th Cir.2002), is readily distinguished from the instant case. That case involved no attempt to stay Bradley's execution, and no attempt to interfere with the implementation of the state sentence.
[5] The Appellant's request for oral argument is denied.
[1] The majority notes that Nelson filed his § 1983 claim only three days prior to his execution. However, the procedure at issue here had never before been implemented in Alabama and prison officials had to craft a special procedure to govern Nelson's execution. It is unclear at what point they finalized the procedure and notified Nelson of it. Even in light of the chance that Nelson seeks redress in the courts solely as a means of delaying the inevitable, the possibility of his only recently being notified of the procedure requires our caution.
[2] A court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (2003) (emphasis added). Here, Nelson does not make such a challenge.
[3] Nevertheless, I believe that our decisions in Fugate and its prior related cases are questionable under the standards defining habeas actions. A challenge to the manner in which an inmate is executed, in general, is not necessarily a challenge to the inmate's sentence of death or his conviction. The inmate's execution will presumably proceed, either in the same manner or in a different manner, pending subsequent proceedings. An avenue for review of Eighth Amendment claims must remain available to those facing death at the hands of the state.

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 377 F.3d 1162 (2004)
David Larry NELSON, Plaintiff-Appellant, v.
Donal CAMPBELL, in his individual and official capacity as Commissioner of the Alabama Department of Corrections, Grantt Culliver, Defendants-Appellees.
No. 03-15095. United States Court of Appeals, Eleventh Circuit.
July 20, 2004. Harriet Victoria Smith, Michael K. McIntyre, Law Office of Michael McIntyre, Atlanta, GA, for Plaintiff-Appellant. J. Clayton Crenshaw, Michael Boysie Billingsley, Alabama Atty. Gen., Montgomery, AL, for Defendants-Appellees. Before ANDERSON, HULL and WILSON, Circuit Judges. PER CURIAM: Nelson filed a complaint in the district court. The district court dismissed the complaint for lack of jurisdiction. We affirmed. Nelson v. Campbell, 347 F.3d 910 (11th Cir.2003). The Supreme Court granted certiorari, 540 U.S. 1046, 124 S.Ct. 835, 157 L.Ed.2d 692 (2003). Later, the Supreme Court reversed and remanded for further proceedings consistent with its opinion. 541 U.S. ___, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). 1163 *1163 Accordingly, the judgment of the district court is reversed and the case is remanded to the district court for proceedings consistent with the opinion of the Supreme Court. REVERSED and REMANDED.
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 Nelson v. Campbell, 540 U.S. 942 (2003) 124 S.Ct. 383
Supreme Court of the United States David L. NELSON, petitioner, v.
Donal CAMPBELL, Commissioner, Alabama Department of Corrections, et al. No. 03-6821. (03A308). | Oct. 9, 2003.
Case below, 11 Cir., 347 F.3d 910. Opinion Application for stay of execution of sentence of death presented to Justice KENNEDY and by him referred to the Court granted pending the disposition of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Parallel Citations 124 S.Ct. 383 (Mem), 157 L.Ed.2d 262, 72 USLW 3266
1

 
 Nelson v. Campbell, 540 U.S. 1046 (2003) 124 S.Ct. 835
Supreme Court of the United States David L. NELSON, petitioner, v.
Donal CAMPBELL, Commissioner, Alabama Department of Corrections, et al. No. 03-6821. | Dec. 1, 2003.
Case below, 347 F.3d 910. Opinion Motion of Alabama Physicians, Laurie Dill, et al., for leave to file a brief as amici curiae granted. Motion of petitioner for leave to proceed in forma pauperis granted. Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit granted limited to the following Question: 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 procedures for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C § 2254? Parallel Citations 124 S.Ct. 835 (Mem), 157 L.Ed.2d 692, 72 USLW 3363, 72 USLW 3371
1

 
 Nelson v. Campbell, 541 U.S. 637 (2004)

124 S.Ct. 2117 Supreme Court of the United States
David L. NELSON, Petitioner, v.
Donal CAMPBELL, Commissioner, Alabama Department of Corrections, et al.
No. 03–6821. | Argued March 29, 2004. | Decided May 24, 2004.

Synopsis Background: Following affirmance of his murder conviction and death sentence, 511 So.2d 225, and denial of habeas relief, state prisoner filed civil rights action under § 1983 alleging that Alabama’s proposed use of “cut-down” procedure to access his veins during lethal injection procedure constituted cruel and unusual punishment. The United States District Court for the Middle District of Alabama, No. 03-01008-CV-T-N, Myron H. Thompson, J., 286 F.Supp.2d 1321, dismissed complaint on ground that it was equivalent of an unauthorized second or successive habeas petition, and the United States Court of Appeals for the Eleventh Circuit, Anderson, Circuit Judge, 347 F.3d 910, affirmed. Prisoner’s petition for writ of certiorari was granted.

Holdings: The Supreme Court, Justice O’Connor, held that:
[1] § 1983 was appropriate vehicle for prisoner to challenge proposed use of “cut-down” procedure, and
[2] prisoner’s request for temporary stay of execution, subsequently recharacterized as request for preliminary injunction, did not transform his conditions of confinement claim pursuant to § 1983 into a challenge to validity of his death sentence sounding in habeas.

Reversed and remanded.

**2118 Syllabus*

*

The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of

Decisions for the convenience of the reader. See United

States v. Detroit Timber & Lumber Co., 200 U.S. 321,

337, 26 S.Ct. 282, 50 L.Ed. 499.

Three days before his scheduled execution by lethal injection, petitioner filed a 42 U.S.C. § 1983 action

against respondent Alabama prison officials, alleging that the use of a “cut-down” procedure requiring an incision into his arm or leg to **2119 access his severely compromised veins constituted cruel and unusual punishment and deliberate indifference to his medical needs in violation of the Eighth Amendment. Petitioner, who had already filed an unsuccessful federal habeas application, sought a permanent injunction against the cut-down’s use, a temporary stay of execution so the District Court could consider his claim’s merits, and orders requiring respondents to furnish a copy of the protocol on the medical procedures for venous access and directing them to promulgate a venous access protocol that comports with contemporary standards. Respondents moved to dismiss the complaint for want of jurisdiction on the grounds that the § 1983 claim and stay request were the equivalent of a second or successive habeas application subject to 28 U.S.C. § 2244(b)’s gatekeeping requirements. Agreeing, the District Court dismissed the complaint because petitioner had not obtained authorization to file such an application. In affirming, the Eleventh Circuit held that method-of-execution challenges necessarily sound in habeas, and that it would have denied a habeas authorization request.
Held: Section 1983 is an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay and permanent injunctive relief. Pp. 2122–2126.
(a) Section 1983 must yield to the federal habeas statute where an inmate seeks injunctive relief challenging the fact of his conviction or the duration of his sentence. Such claims fall within the core of habeas. By contrast, constitutional claims challenging confinement conditions fall outside of that core and may be brought under § 1983 in the first instance. The Court need not reach here the difficult question of how method-of-execution claims should be classified generally. Respondents have conceded that § 1983 would be the appropriate vehicle for an inmate who is not facing execution to bring a “deliberate indifference” challenge to the cut-down procedure’s constitutionality if used to gain venous access for medical treatment. There is no reason on the complaint’s *638 face to treat petitioner’s claim differently solely because he has been condemned to die. Respondents claim that because the cut-down is part of the execution procedure, petitioner is actually challenging the fact of his execution. However, that venous access is a necessary prerequisite to execution does not imply that a particular means of gaining such access is likewise necessary. Petitioner has argued throughout the proceedings that the cut-down and the warden’s refusal to provide reliable information on the cut-down protocol are wholly unnecessary to gaining venous access. If, after an evidentiary hearing, the District Court finds the cut-down
1

Nelson v. Campbell, 541 U.S. 637 (2004)
necessary, it will need to address the broader method-of-execution question left open here. The instant holding is consistent with this Court’s approach to civil rights damages actions, which also fall at the margins of habeas. Pp. 2122–2125.
(b) If a permanent injunction request does not sound in habeas, it follows that the lesser included request for a temporary stay (or preliminary injunction) does not either. Here, a fair reading of the complaint leaves no doubt that petitioner sought to enjoin the cut-down, not his execution by lethal injection. However, his stay request asked to stay his execution, seemingly without regard to whether the State did or did not resort to the cut-down. The execution warrant has now expired. If the State reschedules the execution while this case is pending on remand and petitioner seeks another similarly broad stay, the District Court will need to address the question whether a request to enjoin the execution, rather than merely to **2120 enjoin an allegedly unnecessary precursor medical procedure, properly sounds in habeas. Pp. 2124–2125.
(c) Respondents are incorrect that a reversal here would open the floodgates to all manner of method-of-execution challenges and last-minute stay requests. Because this Court does not here resolve the question of how to treat method-of-execution claims generally, the instant holding is extremely limited. Moreover, merely stating a cognizable § 1983 claim does not warrant a stay as a matter of right. A court may consider a stay application’s last-minute nature in deciding whether to grant such equitable relief. And the ability to bring a § 1983 claim does not free inmates from the substantive or procedural limitations of the Prison Litigation Reform Act of 1995. Pp. 2125–2126.
347 F.3d 910, reversed and remanded.
O’CONNOR, J., delivered the opinion for a unanimous Court.
Attorneys and Law Firms
Bryan Stevenson, Montgomery, AL, for petitioner.
Kevin C. Newsom, Montgomery, AL, for respondents.
Michael Kennedy McIntyre, Counsel of Record, H. Victoria Smith, Atlanta, GA, Bryan A. Stevenson, LaJuana Davis, Equal Justice Initiative of Alabama, Montgomery, AL, for Petitioner.
Richard F. Allen, Acting Attorney General, Kevin C. Newsom, Solicitor General, Counsel of Record, Michael B. Billingsley, Deputy Solicitor General, State of Alabama, Office of the Attorney General, Montgomery,

AL, for Respondents.
Opinion
Justice O’CONNOR delivered the opinion of the Court.
*639 Three days before his scheduled execution by lethal injection, petitioner David Nelson filed a civil rights action in District Court, pursuant to Rev.Stat. § 1979, 42 U.S.C. § 1983, alleging that the use of a “cut-down” procedure to access his veins would violate the Eighth Amendment. Petitioner, who had already filed one unsuccessful federal habeas application, sought a stay of execution so that the District Court could consider the merits of his constitutional claim. The question before us is whether § 1983 is an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay and permanent injunctive relief. We answer that question in the affirmative, reverse the contrary judgment *640 of the Eleventh Circuit, and remand the case for further proceedings consistent with this opinion.
I
Because the District Court dismissed the suit at the pleading stage, we assume the allegations in petitioner’s complaint to be true. Petitioner was found guilty by a jury in 1979 of capital murder and sentenced to death. Following two resentencings, the Eleventh Circuit, on June 3, 2002, affirmed the District Court’s denial of petitioner’s first federal habeas petition challenging the most recent death sentence. Nelson v. Alabama, 292 F.3d 1291. Up until and at the time of that disposition, Alabama employed electrocution as its sole method of execution. On July 1, 2002, Alabama changed to lethal injection, though it still allowed inmates to opt for electrocution upon written notification within 30 days of the Alabama Supreme Court’s entry of judgment or July 1, 2002, whichever is later. Ala.Code § 15–18–82.1 (Lexis Supp.2003). Because he failed to **2121 make a timely request, petitioner waived his option to be executed by electrocution.
This Court denied petitioner’s request for certiorari review of the Eleventh Circuit’s decision on March 24, 2003. Nelson v. Alabama, 538 U.S. 926, 123 S.Ct. 1573, 155 L.Ed.2d 319. Two weeks later, the Alabama Attorney General’s office moved the Alabama Supreme Court to set an execution date. App. 81. Petitioner responded by letter that he “ha[d] no plans to contest [the] motion,” agreeing “that an execution date should be set promptly by the court in the immediate future.” Id., at 89. Hearing no objection, the Alabama Supreme Court, on September
2

Nelson v. Campbell, 541 U.S. 637 (2004)
3, 2003, set petitioner’s execution for October 9, 2003.
Due to years of drug abuse, petitioner has severely compromised peripheral veins, which are inaccessible by standard techniques for gaining intravenous access, such as a needle. Id., at 7. In August 2003, counsel for petitioner contacted Grantt Culliver, warden of Holman Correctional Facility where the execution was to take place, to discuss *641 how petitioner’s medical condition might impact the lethal injection procedure. Counsel specifically requested a copy of the State’s written protocol for gaining venous access prior to execution, and asked that a privately retained or prison physician consult with petitioner about the procedure. Id., at 8–9, 25–26. The warden advised counsel that the State had such a protocol, but stated that he could not provide it to her. He nevertheless assured counsel that “medical personnel” would be present during the execution and that a prison physician would evaluate and speak with petitioner upon his arrival at Holman Correctional Facility. Id., at 8, 26.
Petitioner was transferred to Holman shortly after the Alabama Supreme Court set the execution date. Warden Culliver and a prison nurse met with and examined petitioner on September 10, 2003. Id., at 9–10. Upon confirming that petitioner had compromised veins, Warden Culliver informed petitioner that prison personnel would cut a 0.5–inch incision in petitioner’s arm and catheterize a vein 24 hours before the scheduled execution. Id., at 11. At a second meeting on Friday, October 3, 2003, the warden dramatically altered the prognosis: prison personnel would now make a 2–inch incision in petitioner’s arm or leg; the procedure would take place one hour before the scheduled execution; and only local anesthesia would be used. Id., at 12. There was no assurance that a physician would perform or even be present for the procedure. Counsel immediately contacted the Alabama Department of Corrections Legal Department requesting a copy of the State’s execution protocol. Id., at 13, 27. The legal department denied counsel’s request. Id., at 28.
The following Monday, three days before his scheduled execution, petitioner filed the present § 1983 action alleging that the so-called “cut-down” procedure constituted cruel and unusual punishment and deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Id., at 21 (complaint), 102 (amended complaint). Petitioner *642 sought: a permanent injunction against use of the cut-down; a temporary stay of execution to allow the District Court to consider the merits of his claim; an order requiring respondents to furnish a copy of the protocol setting forth the medical procedures to be used to gain venous access; and an order directing respondents, in consultation with medical experts, to promulgate a venous access protocol that comports with contemporary standards of medical care. Id., at 22. Appended to the complaint was an

affidavit from Dr. Mark Heath, a board certified anesthesiologist and assistant professor at Columbia University **2122 College of Physicians and Surgeons, attesting that the cut-down is a dangerous and antiquated medical procedure to be performed only by a trained physician in a clinical environment with the patient under deep sedation. In light of safer and less-invasive contemporary means of venous access, Dr. Heath concluded that “there is no comprehensible reason for the State of Alabama to be planning to employ the cut-down procedure to obtain intravenous access, unless there exists an intent to render the procedure more painful and risky than it otherwise needs to be.” Id., at 37.
Respondents moved to dismiss the complaint for want of jurisdiction on the grounds that petitioner’s § 1983 claim and accompanying stay request were the “ ‘functional equivalent’ ” of a second or successive habeas application subject to the gatekeeping provisions of 28 U.S.C. § 2244(b). App. 82. The District Court agreed and, because petitioner had not obtained authorization to file a second or successive application as required by § 2244(b)(3), dismissed the complaint. A divided panel of the Eleventh Circuit affirmed. Relying on Fugate v. Department of Corrections, 301 F.3d 1287 (2002), in which the Eleventh Circuit had held that § 1983 claims challenging the method of execution necessarily sound in habeas, the majority held that petitioner should have sought authorization to file a second or successive habeas application. 347 F.3d 910, 912 (C.A.11 2003). The majority also concluded *643 that, even were it to construe petitioner’s appeal as a request for such authorization, it would nevertheless deny the request because petitioner could not show that, but for the purported Eighth Amendment violation, “ ‘no reasonable factfinder would have found [him] guilty of the underlying offense.’ ” Ibid. (quoting 28 U.S.C. § 2244(b)(2)(B)(ii)). Thus, the Eleventh Circuit held that petitioner was without recourse to challenge the constitutionality of the cut-down procedure in Federal District Court. We granted certiorari, 540 U.S. 1046, 124 S.Ct. 835, 157 L.Ed.2d 692 (2003), and now reverse.
II
A
[1] [2] Section 1983 authorizes a “suit in equity, or other proper proceeding for redress,” against any person who, under color of state law, “subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution.” Petitioner’s complaint states
3

Nelson v. Campbell, 541 U.S. 637 (2004)
such a claim. Despite its literal applicability, however, § 1983 must yield to the more specific federal habeas statute, with its attendant procedural and exhaustion requirements, where an inmate seeks injunctive relief challenging the fact of his conviction or the duration of his sentence. See Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Such claims fall within the “core” of habeas corpus and are thus not cognizable when brought pursuant to § 1983. Ibid. By contrast, constitutional claims that merely challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall outside of that core and may be brought pursuant to § 1983 in the first instance. See Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 1304, 158 L.Ed.2d 32 (2004) (per curiam); Preiser, supra, at 498–499, 93 S.Ct. 1827.
[3] We have not yet had occasion to consider whether civil rights suits seeking to enjoin the use of a particular method of execution—e.g., lethal injection or electrocution—fall within the core of federal habeas corpus or, rather, whether *644 they are properly viewed as challenges to the conditions of a condemned inmate’s death sentence. **2123 Neither the “conditions” nor the “fact or duration” label is particularly apt. A suit seeking to enjoin a particular means of effectuating a sentence of death does not directly call into question the “fact” or “validity” of the sentence itself—by simply altering its method of execution, the State can go forward with the sentence. Cf. Weaver v. Graham, 450 U.S. 24, 32–33, n. 17, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (no ex post facto violation to change method of execution to more humane method). On the other hand, imposition of the death penalty presupposes a means of carrying it out. In a State such as Alabama, where the legislature has established lethal injection as the preferred method of execution, see Ala.Code § 15–18–82 (Lexis Supp.2003) (lethal injection as default method), a constitutional challenge seeking to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself. A finding of unconstitutionality would require statutory amendment or variance, imposing significant costs on the State and the administration of its penal system. And while it makes little sense to talk of the “duration” of a death sentence, a State retains a significant interest in meting out a sentence of death in a timely fashion. See Calderon v. Thompson, 523 U.S. 538, 556–557, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998); In re Blodgett, 502 U.S. 236, 238, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992) (per curiam); McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (“[T]he power of a State to pass laws means little if the State cannot enforce them”).
[4] We need not reach here the difficult question of how to categorize method-of-execution claims generally. Respondents at oral argument conceded that § 1983 would be an appropriate vehicle for an inmate who is not facing execution to bring a “deliberate indifference”

challenge to the constitutionality of the cut-down procedure if used to gain venous access for purposes of providing medical treatment. Tr. of Oral Arg. 40 (“I don’t disagree ... that a cut-down occurring for purposes of venous access, wholly divorced from an execution, *645 is indeed a valid conditions of confinement claim”); see also Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment” (citation omitted)). We see no reason on the face of the complaint to treat petitioner’s claim differently solely because he has been condemned to die.
Respondents counter that, because the cut-down is part of the execution procedure, petitioner’s challenge is, in fact, a challenge to the fact of his execution. They offer the following argument: A challenge to the use of lethal injection as a method of execution sounds in habeas; venous access is a necessary prerequisite to, and thus an indispensable part of, any lethal injection procedure; therefore, a challenge to the State’s means of achieving venous access must be brought in a federal habeas application. Even were we to accept as given respondents’ premise that a challenge to lethal injection sounds in habeas, the conclusion does not follow. That venous access is a necessary prerequisite does not imply that a particular means of gaining such access is likewise necessary. Indeed, the gravamen of petitioner’s entire claim is that use of the cut-down would be gratuitous. Merely labeling something as part of an execution procedure is insufficient to insulate it from a § 1983 attack.
If as a legal matter the cut-down were a statutorily mandated part of the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede **2124 acceptable alternatives for gaining venous access, respondents might have a stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself. But petitioner has been careful throughout these proceedings, in his complaint and at oral argument, to assert that the cut-down, as well as the warden’s refusal to provide reliable information regarding the cut-down protocol, are wholly unnecessary to gaining venous *646 access. Petitioner has alleged alternatives that, if they had been used, would have allowed the State to proceed with the execution as scheduled. App. 17 (complaint) (proffering as “less invasive, less painful, faster, cheaper, and safer” the alternative procedure of “percutaneous central line placement”); id., at 37–38 (affidavit of Dr. Mark Heath) (describing relative merits of the cut-down and percutaneous central line placement). No Alabama statute requires use of the cut-down, see Ala.Code § 15–18–82 (Lexis Supp.2003) (saying only that method of execution is lethal injection), and respondents have
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Nelson v. Campbell, 541 U.S. 637 (2004)
offered no duly-promulgated regulations to the contrary.
If on remand and after an evidentiary hearing the District Court concludes that use of the cut-down procedure as described in the complaint is necessary for administering the lethal injection, the District Court will need to address the broader question, left open here, of how to treat method-of-execution claims generally. An evidentiary hearing will in all likelihood be unnecessary, however, as the State now seems willing to implement petitioner’s proposed alternatives. See Tr. of Oral Arg. 45–46 (“I think there is no disagreement here that percutaneous central line placement is the preferred method and will, in fact, be used, a cut-down to be used only if actually necessary”).
[5] We note that our holding here is consistent with our approach to civil rights damages actions, which, like method-of-execution challenges, fall at the margins of habeas. Although damages are not an available habeas remedy, we have previously concluded that a § 1983 suit for damages that would “necessarily imply” the invalidity of the fact of an inmate’s conviction, or “necessarily imply” the invalidity of the length of an inmate’s sentence, is not cognizable under § 1983 unless and until the inmate obtains favorable termination of a state, or federal habeas, challenge to his conviction or sentence. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). This “favorable *647 termination” requirement is necessary to prevent inmates from doing indirectly through damages actions what they could not do directly by seeking injunctive relief—challenge the fact or duration of their confinement without complying with the procedural limitations of the federal habeas statute. Muhammad, 540 U.S., at 751, 124 S.Ct. 1303. Even so, we were careful in Heck to stress the importance of the term “necessarily.” For instance, we acknowledged that an inmate could bring a challenge to the lawfulness of a search pursuant to § 1983 in the first instance, even if the search revealed evidence used to convict the inmate at trial, because success on the merits would not “necessarily imply that the plaintiff’s conviction was unlawful.” 512 U.S., at 487, n. 7, 114 S.Ct. 2364 (noting doctrines such as inevitable discovery, independent source, and harmless error). To hold otherwise would have cut off potentially valid damages actions as to which a plaintiff might never obtain favorable termination—suits that could otherwise have gone forward had the plaintiff not been convicted. In the present context, focusing attention on **2125 whether petitioner’s challenge to the cut-down procedure would necessarily prevent Alabama from carrying out its execution both protects against the use of § 1983 to circumvent any limits imposed by the habeas statute and minimizes the extent to which the fact of a prisoner’s imminent execution will require differential treatment of his otherwise cognizable § 1983 claims.

B
[6] There remains the question whether petitioner’s request for a temporary stay of execution, subsequently recharacterized by petitioner as a request for a preliminary injunction, App. 49, transformed his conditions of confinement claim into a challenge to the validity of his death sentence. Normally, it would not. If a request for a permanent injunction does not sound in habeas, it follows that the lesser included request for a temporary stay (or preliminary injunction) does not either.
*648 There is a complication in the present case, however. In his prayer for relief, petitioner asked the District Court, among other things, to “[e]nter an order granting injunctive relief and staying [petitioner’s] execution, which is currently scheduled for October 9, 2003.” Id., at 22. Though he did not specify what permanent injunctive relief he was seeking, a fair reading of the complaint leaves no doubt that petitioner was asking only to enjoin the State’s use of the cut-down, not his execution by lethal injection. The same cannot be said of petitioner’s stay request. There, he explicitly requested that the District Court stay his execution, seemingly without regard to whether the State did or did not resort to the cut-down. This observation is potentially significant given the fact that the State has maintained, from the outset of this litigation, that it would attempt other methods of venous access prior to engaging in the cut-down. See id., at 51–52; id., at 93–94 (affidavit of Warden Culliver). By asking for broader relief than necessary, petitioner undermines his assertions that: (1) his § 1983 suit is not a tactic for delay, and (2) he is not challenging the fact of his execution, but merely a dispensable preliminary procedure.
Whatever problem this failing might have caused before this Court entered a stay, the execution warrant has now expired. If the State reschedules the execution while this case is pending on remand and petitioner seeks another similarly broad stay, the District Court will need to address the question whether a request to enjoin the execution, rather than merely to enjoin an allegedly unnecessary precursor medical procedure, properly sounds in habeas. See also 18 U.S.C. § 3626(a)(2) (“Preliminary injunctive relief [in prison conditions cases] must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm”).
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Nelson v. Campbell, 541 U.S. 637 (2004)
*649 C
Respondents argue that a decision to reverse the judgment of the Eleventh Circuit would open the floodgates to all manner of method-of-execution challenges, as well as last minute stay requests. But, because we do not here resolve the question of how to treat method-of-execution claims generally, our holding is extremely limited.
[7] Moreover, as our previous decision in Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam), makes clear, the mere fact that an inmate states a cognizable § 1983 claim does not warrant the entry of a stay as a **2126 matter of right. Gomez came to us on a motion by the State to vacate a stay entered by an en banc panel of the Court of Appeals for the Ninth Circuit that would have allowed the District Court time to consider the merits of a condemned inmate’s last-minute § 1983 action challenging the constitutionality of California’s use of the gas chamber. We left open the question whether the inmate’s claim was cognizable under § 1983, but vacated the stay nonetheless. The inmate, Robert Alton Harris, who had already filed four unsuccessful federal habeas applications, waited until the eleventh hour to file his challenge despite the fact that California’s method of execution had been in place for years: “This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Id., at 654, 112 S.Ct. 1652.
[8] [9] [10] A stay is an equitable remedy, and “[e]quity must take into consideration the State’s strong interest in proceeding with its judgment and ... attempt[s] at manipulation.” Ibid. Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the *650 inmate has delayed unnecessarily in bringing the claim. Given the State’s significant interest in enforcing its criminal judgments, see Blodgett, 502 U.S., at 239, 112 S.Ct. 674; McCleskey, 499 U.S., at 491, 111 S.Ct. 1454, 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.
[11] Finally, the ability to bring a § 1983 claim, rather than a habeas application, does not entirely free inmates from substantive or procedural limitations. The Prison Litigation Reform Act of 1995(Act) imposes limits on the scope and duration of preliminary and permanent injunctive relief, including a requirement that, before issuing such relief, “[a] court shall give substantial weight to any adverse impact on ... the operation of a criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1); accord, § 3626(a)(2). It requires that inmates exhaust available state administrative remedies before bringing a § 1983 action challenging the conditions of their confinement. 110 Stat. 1321–71, 42 U.S.C. § 1997e(a) ( “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted”). The Act mandates that a district court “shall,” on its own motion, dismiss “any action brought with respect to prison conditions under section 1983 of this title ... if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.” § 1997e(c)(1). Indeed, if the claim is frivolous on its face, a district court may dismiss the suit before the plaintiff has exhausted his state remedies. § 1997e(c)(2).
*651 For the reasons stated herein, the judgment of the Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Parallel Citations
124 S.Ct. 2117, 158 L.Ed.2d 924, 72 USLW 4403, 04 Cal. Daily Op. Serv. 4419, 2004 Daily Journal D.A.R. 6120, 17 Fla. L. Weekly Fed. S 317
	  

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