Case 2:06-cv-00986-MHT-TFM Document 86 Filed 04/17/2007 Page 1 of 42

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

AARON LEE JONES,

)

)

Plaintiff,

)

)

v.

)

)

RICHARD ALLEN,

)

Commissioner, Alabama

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Department of Corrections, )

in his individual and

)

official capacities, and )

GRANTT CULLIVER, Warden, )

Holman Correctional

)

Facility, in his individual )

and official capacities, )

)

Defendants.

)

CIVIL ACTION NO. 2:06cv986-MHT (WO)

OPINION Plaintiff Aaron Lee Jones is scheduled to be executed by the State of Alabama on May 3, 2007. Pursuant to 42 U.S.C. § 1983, Jones has filed this civil action claiming that the method and procedure the State intends to use to execute him pose an unjustifiable risk of causing him extreme pain in violation of the Eighth and Fourteenth

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Amendments to the Constitution.

He names the

Commissioner of the Alabama Department of Corrections and

the Warden of Holman Prison as defendants. Jurisdiction

is proper under 28 U.S.C. §§ 1331 and 1343. There are

currently two motions pending: the defendants’ motion for

summary judgment on the ground of statute-of-limitations,

and Jones’s motion for a stay of execution. For the

reasons that follow, both motions will be denied.

I. BACKGROUND Jones is a death-row inmate in the custody of the Alabama Department of Corrections. The facts underlying his capital offense are detailed in the Eleventh Circuit’s opinion denying him habeas relief. Jones v. Campbell, 436 F.3d 1285, 1289-92 (11th Cir. 2006), cert. denied sub nom. Jones v. Allen, ___ U.S. ___, 127 S. Ct. 619 (2006) (mem.). On November 10, 1978, Jones and another person were responsible for shooting and stabbing three children, their parents, and their grandmother in
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Blount County, Alabama. The parents, Willene and Carl Nelson, died as a result of the attacks. The following is a chronology giving rise to the issues before the court:
A. State-Court Direct Proceedings 1979: An Alabama jury found Jones guilty of capital murder and recommended that he be sentenced to death. The trial court agreed with the jury and sentenced him to death by electrocution. 1982: Jones was retried for his offense after the Alabama Court of Criminal Appeals, pursuant to Beck v. Alabama, 447 U.S. 625 (1980), reversed and ordered a new trial. Jones v. State, 403 So.2d 1 (Ala. Crim. App. 1981). An Alabama jury again found him guilty of capital murder, and the trial court again sentenced him to death. January 10, 1984: The Alabama Court of Criminal Appeals affirmed Jones’s conviction and death sentence.
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Jones v. State, 520 So.2d 543, 545 (Ala. Crim. App. 1984).
January 8, 1988: The Alabama Supreme Court affirmed the decision of the Alabama Court of Criminal Appeals. Ex parte Jones, 520 So.2d 553 (Ala. 1988).
October 3, 1988: The United States Supreme Court denied certiorari review. Jones v. Alabama, 488 U.S. 871 (1988) (mem.).
B. State-Court Collateral Proceedings March 1990: Jones filed a petition for postconviction relief, challenging his conviction and sentence pursuant to Ala. R. Crim. P. 32. May 1994: Jones amended his Rule 32 petition, reiterating claims alleged in his original petition, and raising numerous other claims for relief. June 1996: The state trial court denied post-conviction relief to Jones.
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April 30, 1999: The Alabama Court of Criminal Appeals affirmed the trial court’s June 1996 order. Jones v. State, 753 So.2d 1174 (Ala. Crim. App. 1999).
December 17, 1999: The Alabama Supreme Court denied certiorari review.
C. Federal-Habeas Proceedings December 15, 2000: Jones filed a federal habeas petition pursuant to 28 U.S.C. § 2254. Jones raised numerous claims including a method-of-execution claim that challenged Alabama’s use of electrocution. July 1, 2002: Alabama switched from electrocution to lethal injection as the primary form of execution, and gave death-row inmates 30 days to elect death by electrocution instead. 1975 Ala. Code § 15-18-82.1. February 6, 2004: The district court denied federal habeas relief to Jones.
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January 20, 2006: The Eleventh Circuit affirmed the district court’s decision. Jones v. Campbell, 436 F.3d 1285 (11th Cir. 2006).
November 13, 2006: The United States Supreme Court denied certiorari review. Jones v. Allen, ___ U.S. ___, 127 S. Ct. 619 (2006) (mem.).
D. Federal Challenge to Lethal Injection November 1, 2006: Jones filed the instant method-ofexecution § 1983 suit, claiming that there is an unreasonably high risk that Alabama’s current execution protocol will be carried out improperly and thereby cause him extreme pain at the moment of execution, a risk that Jones asserts is both unjustifiable and avoidable. Jones contends that if his execution is ‘botched’ as described, it would violate the Eighth Amendment (as incorporated against the States through the Fourteenth Amendment), which prohibits “unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).
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December 4, 2006: With federal-habeas review complete, the State filed a motion with the Alabama Supreme Court to set an execution date for Jones.
December 22, 2006: The parties filed in this court a joint report, pursuant to Fed.R.Civ.P. 26(f), setting forth proposed dates and deadlines for discovery, motions, and a trial date of October 1, 2007.
January 8, 2007: This court adopted the parties’ proposed trial date of October 1, 2007.
February 26, 2007: In response to the State’s December 4 motion to set a date of execution, the Alabama Supreme Court set Jones’s execution date for May 3, 2007.
March 1, 2007: The defendants informed this court of the execution date, and the court ordered Jones to indicate whether he intended to seek a stay of execution.
March 2, 2007: Jones filed a statement of intent to seek a stay.
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March 13, 2007: The defendants filed a motion for summary judgment, raising a statute-of-limitations defense.
March 14, 2007: Jones filed a motion to stay execution.
II. DISCUSSION As stated, Jones asks this court to enter a stay of execution so that his lethal-injection challenge can proceed on the merits. The defendants offer two responses. First, they contend that, because Jones’s claim is barred by the statute of limitations, summary judgment should be entered in their favor. Second, they argue that Jones’s motion for a stay of execution should be denied because of the “strong equitable presumption against the grant of a stay where a claim could have been brought at such time to allow consideration of the merits without requiring entry of a stay.” Hill v. McDonough (“Hill I”), 547 U.S. ___, ___, 126 S. Ct. 2096, 2104
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(2006) (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)).
The court will therefore divide its discussion into two parts. First, the court will consider whether the defendants are entitled to summary judgment based on the statute-of-limitations defense, that is, whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ... show that there is no genuine issue as to any material fact and that the [defendants are] entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Then, the court will consider Jones’s motion for a stay of execution.
A. Motion for Summary Judgment The court first addresses the defendants’ motion for summary judgment based on their statute-of-limitations defense.1 The statute-of-limitations defense in a case
1. The motion was originally styled a “motion for (continued...)
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such as this one strikes the court as anomolous to say the least: the defendants are essentially arguing that the statute of limitations has already run on an injury that has not yet occurred.
According to the defendants, Jones is time-barred from bringing his § 1983 claim because his claim accrued in 2002, when Alabama adopted lethal injection as its method of execution, and expired two years later, in 2004. The defendants rely primarily on Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007), in which the Sixth Circuit Court of Appeals held, in a 2-1 decision, that the statute of limitations for a § 1983 method-ofexecution claim accrues when direct review of the conviction and sentence becomes final and the State has adopted its current method of execution, not when collateral habeas proceedings are complete, an execution
1. (...continued) judgment on the pleadings and alternative motion for summary judgment.” In a separate order entered today, the court denied the motion for judgment on the pleadings. Therefore, the court now considers only the motion for summary judgment.
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date is set, or execution becomes imminent. Thus, the defendants argue, because Jones’s conviction was already final in 2002 when Alabama adopted lethal injection as its method of execution, Jones’s § 1983 lawsuit, filed in 2006 when his habeas proceedings were nearly complete, is untimely.
As Cooey makes clear, the federal courts look to state law to determine the limitations period for a § 1983 claim. 479 F.3d at 416; see Wallace v. Kato, 549 U.S. ___, 127 S. Ct. 1091, 1094 (2007). Because a § 1983 suit is best characterized as a constitutional tort action, federal courts borrow the state statute of limitations for personal injury actions. Wallace, 127 S. Ct. at 1094; Wilson v. Garcia, 471 U.S. 261, 276-78 (1985). Although state law determines the limitations period, federal law governs when the statute of limitations begins to run, or when the claim accrues. Wallace, 127 S. Ct. at 1095.
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According to the Cooey majority, federal law dictates that “accrual occurs when the plaintiff has complete and present cause of action,” that is, “when the plaintiff can file suit and obtain relief.” Cooey, 479 F.3d at 416 (quoting Wallace, 127 S. Ct. at 1095) (internal quotation marks and brackets omitted). With that principle in mind, the Cooey court proceeded to determine at what point Cooey could have sought relief. The court concluded that a § 1983 method-of-execution claim accrues at the same time the statute of limitations begins to run for federal habeas claims, see 28 U.S.C. § 2244(d)(1)(A): upon conclusion of direct review of the state-court judgment of conviction. 479 F.3d at 422. The Cooey majority specifically rejected the district court’s view that the statute of limitations accrues when execution becomes imminent, which is when all other legal challenges to the validity of a death sentence come to an end--essentially when federal habeas proceedings are complete. Id. at 419. In Cooey’s case, because Ohio
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adopted the lethal-injection method of execution after he exhausted direct review, the accrual date was adjusted to reflect the fact that Cooey could not have discovered his ‘injury’ until he became aware that the State intended to execute him by lethal injection. Id. at 422. Even after this adjustment of the accrual date to take into account Ohio’s change in execution method, the court found that the statute of limitations had run before Cooey filed his § 1983 suit. Id. Accordingly, the court instructed the district court to dismiss Cooey’s complaint as timebarred under the statute of limitations for § 1983 actions. Id. at 424.
Judge Gilman dissented from the Cooey majority’s holding, agreeing instead with the district court that the § 1983 claim accrues when habeas review is at an end. Id. at 426 (Gilman, J., dissenting). According to the dissent, it would make little sense to require a deathrow inmate to file a method-of-execution challenge when direct review is complete, as nearly all death-sentenced
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inmates file post-conviction claims that work their way through state and federal courts for years. Id. at 429. Under the majority’s analysis, such an early accrual date would require the prisoner to file a § 1983 challenge long before execution is scheduled to take place. Id.
Here, the defendants ask the court to adopt the Cooey majority’s analysis and dismiss Jones’s suit as barred by the statute of limitations. Like the plaintiff in Cooey, Jones exhausted his direct appeals before the State adopted lethal injection as its method of execution. Therefore, the defendants argue, Jones’s § 1983 claim accrued in 2002, when his sentence was converted, by operation of law, from death by electrocution to death by lethal injection. 1975 Ala. Code § 15-18-82.1(b). As the defendants note, the statute of limitations for § 1983 actions in Alabama is two years, borrowing from the state statute for personal-injury actions. Lufkin v. McCallum, 956 F.2d 1104, 1106 (11th Cir. 1992). Therefore, according to the defendants, the statute of
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limitations expired on Jones’s § 1983 claim in 2004, two years before he brought the instant suit.
Jones argues that the court should deny the defendants’ motion, both because Cooey is wrong as a matter of law and because this case is distinguishable on the facts. As to Cooey’s legal conclusion, Jones argues that the view expressed in the dissent and by the district court, that the claim accrues when habeas proceedings come to an end and execution is imminent, is the correct one. As to the facts, Jones argues that, because Alabama does not publicly disclose its execution protocol, Jones did not have reason to know of his claim at the time Alabama began using lethal injection. Jones also argues that the defendants may have made material changes to the execution protocol since its inception in 2002, which would cause the claim to re-accrue and the statute-of-limitations clock to reset.2
2. The defendants have disclosed the most recent revision to the execution protocol, which does not contain any changes that materially affect Jones’s claim.
(continued...) 15

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The court must now decide whether to dismiss Jones’s
claim as barred by the statute of limitations. Having
reviewed the Cooey decision along with the briefs in this
case, the court concludes that the statute of limitations
does not operate to bar Jones’s claim and that the
defendants’ motion is therefore due to be denied. The
court reaches this conclusion not on the basis of factual
distinctions between this case and Cooey; instead, the
court respectfully disagrees with the Cooey majority that
the statute of limitations applies to a case such as this
one.
As the court explains in more detail below, the Cooey
majority (and the defendants in this case) made two
2. (...continued) However, the defendants have also admitted that earlier revisions to the protocol were made as well but that after diligent search they are unable to locate the version of the protocol that existed before such changes were made. Theoretically, if a material component of Jones’s claim arises from a part of the execution procedure that was not part of the protocol from its inception but was initiated within two years of Jones filing his complaint, then even under the Cooey framework Jones’s claim would not be barred on statute-oflimitations grounds.
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errors in their statute-of-limitations analysis. First, they based their analysis on the model of a § 1983 lawsuit seeking damages for a constitutional violation that took place in the past; whereas a method-ofexecution lawsuit seeks injunctive relief for an allegedly unconstitutional act that has not yet occurred. Second, the interests they identified that might lead a court to conclude that a late-filing plaintiff’s suit should be time-barred are not the sorts of interests that bear on a statute-of-limitations defense; rather, they are equitable interests that should be considered along with Jones’s motion for a stay of execution.
At the outset, the court notes that Cooey remains unsettled law. Cooey is apparently the first and only published decision on when a method-of-execution claim brought under 42 U.S.C. § 1983 accrues for statute-oflimitations purposes. It was decided by a split panel of the Sixth Circuit on March 2, 2007, and a petition for rehearing and suggestion for rehearing en banc is pending
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in that court. In fact, in light of the pending petition for rehearing, the same Sixth Circuit panel that decided Cooey has also refused to lift the stay of execution on a prisoner whose claim would be barred by Cooey and has joined in the petition for rehearing. Biros v. Strickland, No. 06-4660 (6th Cir. 2007) (unpublished order) (doc. no. 54-10). The United States Supreme Court has also denied the State of Ohio’s application to vacate that stay. Strickland v. Biros, 549 U.S. ____, 2007 WL 831496 (Mar. 20, 2007) (mem.). And, of course, a decision by the Sixth Circuit, while persuasive authority, is not binding in this circuit or on this court.
As to the legal merits of the majority opinion in Cooey, and the defendants’ statute-of-limitations defense here, this court is of the opinion that Cooey’s reliance on certain language from Wallace, 127 S.Ct. 1091, is misplaced. Cooey cites statements from Wallace that “accrual occurs when the plaintiff has complete and
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present cause of action,” and “when the plaintiff can file suit and obtain relief.” Cooey, 479 F.3d at 416 (quoting Wallace, 127 S.Ct. at 1095) (internal quotation marks and brackets omitted). But Wallace is in many ways a typical § 1983 suit: the plaintiff sued police officers for false arrest, which the court analogized for accrual purposes to the common-law tort of false imprisonment. Wallace, 127 S. Ct. at 1095. That is, like most § 1983 suits, the plaintiff in Wallace sought relief for an unconstitutionally tortious act that had already occurred; the question for the court was whether the § 1983 claim accrued at the moment of the arrest, when legal process began, or when the arrestee was acquitted of the underlying charged offense. Id. at 1095-96. By contrast, Jones’s suit presents a somewhat atypical § 1983 claim: Jones is suing to prevent the State from committing an allegedly unconstitutionally tortious act in the future. Because a suit for injunctive relief to prevent a tortious act from occurring in the future is
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unlike the typical suit that is predicated on a tortious act that has already occurred, the court thinks it appropriate to look beyond the language of Wallace that the majority quotes in Cooey.
This is not to say that Wallace should be ignored. On the contrary, Wallace instructs the court that “[a]spects of § 1983 which are not governed by reference to state law are governed by federal rules conforming in general to common-law tort principles.” Wallace, 127 S. Ct. at 1095. And according to the Restatement (Second) of Torts, “the statute [of limitations] does not usually begin to run until the tort is complete,” and a “tort is ordinarily not complete until there has been an invasion of a legally protected interest of the plaintiff.” Rest. 2d Torts § 899 cmt. c. See Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984) (“It is generally accepted that a cause of action for a tort accrues when there has been an invasion of the plaintiff’s legally protected interest. Ordinarily, this
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invasion occurs at the time the tortious act is committed.” (emphasis added)); 51 Am.Jur.2d Limitation of Actions § 167 (“cause of action in tort accrues when a wrongful act causes a legal injury”); 54 C.J.S. Limitations of Actions § 193 (“A cause of action sounding in tort generally accrues at, and limitations begin to run from, the date on which the act causing the injury is committed....”). In fact, Wallace itself states: “Under the traditional rule of accrual ... the tort cause of action accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages.” 127 S. Ct. at 1097 (quoting 1 C. Corman, Limitation of Actions § 7.4.1, at 526-27 (1991)).
Thus, in a case where the plaintiff seeks an injunction pursuant to 42 U.S.C. § 1983 to prevent an unconstitutionally tortious act from occurring in the future, such a claim cannot be barred by the statute of
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limitations because the tortious act has not yet occurred
and the tort is not yet complete.3
In Cooey, the majority reasoned that the tortious act
could not mark accrual of the claim “because the death-
sentenced inmate’s claim would not accrue until he was
executed, at which time it would also be simultaneously
moot.” Cooey, 479 F.3d at 418. But this statement
implies, and wrongly assumes, that a plaintiff cannot
bring suit before the claim accrues for statute-of-
limitations purposes. Such reasoning is irreconcilable
with the broad equitable powers of a federal court under
3. This type of “future harm” situation must be distinguished from cases involving prior tortious acts that give rise to future harms, either latent harms or discernible harms the extent or severity of which are not yet known. In the case of a latent harm, the statute of limitations is generally tolled until the date the plaintiff discovers or should have discovered the harm and its cause. See Albertson, 749 F.2d at 229. In the case of a discernible harm the extent or severity of which is not yet known, the statute of limitations is not tolled. Id. But in both cases, the tortious act has already occurred. Jones’s case involves a different kind of ‘future harm’: not only will the harm manifest in the future, the tortious act itself upon which the suit is predicated will not occur until sometime in the future.
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42 U.S.C. § 1983, which surely include the power to enjoin a defendant from committing an unconstitutional act before such act occurs where such act would cause irreparable harm. See Mitchum v. Foster, 407 U.S. 225, 242 (1972) (“Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a ‘suit in equity’ as one of the means of redress. And this Court long ago recognized that federal injunctive relief ... can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person’s constitutional rights.”). There is simply no reason why, in order for a plaintiff to seek injunctive relief to prevent a future unconstitutional harm from occurring, the statute-oflimitations clock must already be ticking.
Of course, one can always argue that the ‘harm’ in a case such as this one occurs when the State establishes its execution policy, sentences a capital defendant to death, or when the inmate otherwise becomes aware that
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his death might be an unconstitutionally painful one. In fact, at oral arguments, the defendants in this case argued that Jones’s knowledge that he was to be executed constituted the ‘harm’ that caused his claim to accrue. But such reasoning is problematic for two reasons. First, Jones’s lawsuit complains of an Eighth Amendment violation; thus, the ‘harm’ in Jones’s case must be an unconstitutional harm. Knowledge of a needless risk of a painful death at the hands of the State does not itself violate the Constitution; only the execution itself would. Second, by requiring the courts to identify an event that precedes the execution as the event by which the claim accrues, the law would create a hopelessly moving target that is difficult to define nonarbitrarily: Does the claim accrue when the conviction becomes final? At the end of habeas review? When the execution date is set? When (and if) the State alters its execution protocol? There is no rhyme or reason in choosing among these options precisely because they are
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little more than stand-ins for the actual tortious event the court would otherwise look for in a run-of-the-mill § 1983 case. In sum, because the execution itself is the event Jones claims would violate his constitutional rights, it defies logic, and is contrary to the common law of torts, to conclude that the statute of limitations has already run on a suit to prevent an unconstitutional act that has not yet occurred.
Similarly, the Cooey majority risks conflating accrual and ripeness. The Cooey majority cites a Fifth Circuit case, Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006) (per curiam), to demonstrate that it is not too early to mount a method-of-execution challenge once a conviction has become final upon completion of direct review. But this merely proves that method-of-execution claims are ripe for adjudication at such time. Whether they must be brought within two years of such time is a different question. To be sure, once a claim has accrued it is necessarily ripe; but the converse, that once a
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claim is ripe it has necessarily accrued for statute-oflimitations purposes, need not follow. Where, as here, the plaintiff challenges the constitutionality of an event that has not yet occurred, the claim may be ripe for adjudication without having accrued for statute-oflimitations purposes.
This conclusion finds support in the historical and policy reasons behind statutes of limitations. See Rheingold, Solving Statutes of Limitations Problems, 4 Am.Jur. Trials 441, § 2 (“Since there is some leeway in the interpretation of the statutes and their application to new issues, the policy or purpose behind the employment of limitations, with special reference to personal injury actions, merits consideration.”). Traditionally, the purpose of a statute of limitations was to protect defendants from “stale actions,” where evidence has been lost, memories have faded, witnesses have perished or are difficult to track down, and the defendants themselves have moved on with their lives in
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reliance on the fact that plaintiffs have decided not to bring their claims. See 51 Am.Jur.2d Limitation of Actions § 15 (“Protecting potential defendants from stale actions; lost evidence”); 54 C.J.S. Limitations of Actions § 2 (“Statutes of limitations ordinarily are regarded as statutes of repose whose purpose is to prevent the litigation of stale claims.”). None of these policy reasons behind a statute of limitations applies to a case where the plaintiff’s injury has yet to occur.4 Nothing in this case is “stale,” because the defendants are still planning on carrying out the complained-of act, and quite soon.
Traditionally, then, the farther away in time from the tortious act, the staler the claim and the greater the defendants’ interest in a statute of limitations
4. Likewise, because the plaintiff seeks injunctive relief rather than damages, the defendants need not worry about excessive demands on its state coffers arising out of occurrences in the too-distant past. Cf. Rice v. Tuscaloosa County, 4 So.2d 497, 499 (Ala. 1941) (describing policy reasons behind notice-of-claim defense for suits against municipalities).
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barring it. But in this case, the defendants urge that

the statute of limitations take effect as we move closer

in time to the complained-of act. In light of the

historical and policy reasons behind statutes of

limitations, the defendants’ approach makes little sense.

To be sure, States do have a “significant interest in

meting out a sentence of death in a timely fashion.”

Nelson v. Campbell, 541 U.S. 637, 664 (2004). And

plaintiffs’ interests in pursuing their claims are

severely diminished when they have slept on their rights

either inexcusably or with intent to delay. Delta

Theatres, Inc. v. Paramount Pictures, Inc., 398 F.2d 323,

325 (5th Cir. 1968) (“No plaintiff should be permitted to

sleep on his rights and harass a defendant with ...

unreasonable delay.”).5

But these are equitable

considerations that must be considered by a court that is

5. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
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asked to stay a § 1983 plaintiff’s scheduled execution. Hill I, 126 S. Ct. at 2104 (“A court considering a stay must also apply ‘a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.’” (quoting Nelson, 541 U.S. at 650)); see also McQuiddy v. Ware, 87 U.S. 14, 19 (1873) (“Equity always refuses to interfere where there has been gross laches in the prosecution of rights.” (emphases added)); 30A C.J.S. Equity § 115 (“Equity aids the vigilant, not those who slumber on their rights.”). These equitable considerations, moreover, are not driven by the policies underlying a statute-of-limitations defense. See Speidel v. Henrici, 120 U.S. 377, 387 (1887) (“Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights, and shows no excuse for his laches in asserting them.” (emphasis added)). Thus, to the extent the defendants in this case seek to assert the
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statute-of-limitations defense because Jones was dilatory in bringing his claim or because Jones’s lawsuit needlessly threatens to interfere with his scheduled execution, these interests can be vindicated when the court takes up Jones’s motion for a stay of execution; indeed, they should not be considered until that time.
In fact, it appears the Cooey majority’s statute-oflimitations analysis is largely driven by equitable considerations. In concluding that a method-of-execution claim accrues when a prisoner’s conviction becomes final on direct review, the majority reasons that a later accrual date will interfere with the “vital yet delicate balance between state and federal relations,” Cooey, 479 F.3d at 419, the State’s interest in timely executions, id., and Congress’s intent, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), “to advance the doctrines of comity, finality, and federalism,” id. at 420 (quoting Williams v. Taylor, 529 U.S. 420. 436 (2000) (brackets omitted)). But these considerations,
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while legitimate, are wholly equitable in nature, and arise independent of the statute of limitations. They should be taken into consideration, and can be vindicated, when, for example, the court is called upon to enter a stay of execution so as to allow the plaintiff’s § 1983 suit to proceed. These equitable considerations would also come into play in the context of a laches defense, where the court must consider such factors as the plaintiff’s delay in bringing suit, whether such delay was excusable, and whether such delay prejudices the defendant. See 30A C.J.S. Equity § 131; 27A Am.Jur.2d Equity § 141; see also, e.g., Venus Lines Agency, Inc. v. CVG Int’l Am., Inc., 234 F.3d 1225, 1230 (11th Cir. 2000) (“The equitable doctrine of laches will bar a claim when three elements are present: (1) a delay in asserting a right or a claim; (2) that the delay was not excusable; and (3) that there was undue prejudice to the party against whom the claim is asserted.” (internal quotation marks omitted)).
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In sum, the Cooey majority, and the defendants in this case, misapprehend the statute of limitations as it applies to a § 1983 case such as this one. First, they err in concluding that the statute of limitations can run on a claim that, rather than seeking relief for an unconstitutional act that has already occurred, seeks injunctive relief to prevent an irreparable constitutional violation from occurring in the future. Second, although the State has legitimate interests in carrying out timely executions and avoiding litigation where the plaintiff has indulged in inexcusable delay, those interests are not the ones that underlie a statuteof-limitations defense. Rather, they are equitable interests and in this case can be considered when deciding the plaintiff’s motion for a stay of execution. It is to that inquiry that the court now turns.
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B. Motion for Stay of Execution “A stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill I, 126 S. Ct. at 2104 (quoting Nelson, 541 U.S. at 649-50). As such, 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.” Id. (quoting Nelson, 541 U.S. at 650). That is, in order to protect the State’s interest in timely enforcing its criminal judgments, a court should deny a stay where the plaintiff unreasonably delayed bringing his claim. The Eleventh Circuit has recently addressed the strong equitable presumption inherent in stay-ofexecution cases in Hill v. McDonough (“Hill II”), 464 F.3d 1256 (11th Cir. 2006) (on remand), and Rutherford v.
33

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McDonough, 466 F.3d 970 (11th Cir. 2006). In both cases the court held that the plaintiffs’ delay in filing their § 1983 lethal-injection challenges precluded equitable relief. Hill II, 464 F.3d at 1259-60; Rutherford, 466 F.3d at 973-74. Both plaintiffs had been attacking their convictions for over 20 years and had numerous opportunities to file their challenge to lethal injection during that time. Hill II, 464 F.3d at 1257; Rutherford, 466 F.3d at 971. The courts found that the plaintiffs, by waiting to file their challenges until only days before their execution dates, were engaging in dilatory tactics to delay their executions. Hill II, 464 F.3d at 1259; Rutherford, 466 F.3d at 979.
Even assuming that Jones has a claim on which he is likely to prevail, Jones was dilatory in bringing this § 1983 action. To sum up the relevant timetable, Jones filed the instant action nearly 28 years after he was first found guilty of capital murder and sentenced to death; 25 years after he was found guilty and sentenced
34

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to death a second time; nearly 19 years after his direct review ended; eight years after his collateral review ended; six years after he filed his habeas petition; and four years after the State of Alabama made lethal injection its primary method of execution.
While Jones could not have brought his claim before Alabama actually adopted lethal injection as its primary method of execution, it is still evident that Jones could have brought this action “at such time as to allow consideration of the merits without requiring entry of a stay,” Hill I, 126 S. Ct. at 2104. And this delay becomes even more egregious when viewed against the background that it has been more than 28 years since Jones committed his capital crime. In fact, in his habeas petition filed in 2000, Jones raised a similar claim challenging electrocution as Alabama’s method of execution. When Alabama switched to lethal injection in 2002, he could have then amended his habeas petition to challenge lethal injection as well.
35

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Jones argues that this case is distinguishable from Hill II and Rutherford because he did not wait until the eve of his execution but rather filed this case before the Supreme Court denied certiorari on his federal habeas petition and before his execution date was even set. These differences do not warrant a different result. First, the fact remains, as stated, that Jones could have avoided this scenario by filing this lawsuit shortly after Alabama allowed lethal injection as a means of execution, and this delay is even more egregious in light of the additional fact that it has been more than 28 years since Jones committed his capital crime. Second, the mere filing of a lethal-injection lawsuit does not insulate a person, who has waited an inordinate amount of time to commence a lethal-injection challenge, from the consequences of that inordinate delay. Absent bad faith on the part of the State in setting an execution date (such as setting the date with the specific intent to defeat the lethal-injection challenge), such person runs
36

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the risk that the date will be set during the pendency of his lethal-injection challenge. And there is no evidence in this case that the State sought and obtained an execution date for Jones in bad faith.
Jones maintains that this case can be resolved in this court on the merits within two to three months. The court finds such an assertion dubious. First, if the court were to find in favor of Jones on the merits, fashioning relief (that is, reviewing the State’s adoption of a new protocol for lethal injection) would take much more than three months. Second, regardless of whether Jones prevailed or not, an appeal would be certain and would add months, if not years, to this ligation. As result, the State would be looking at one or more years, beyond the 28 years that have already passed, before it could carry out its judgment of execution. By waiting until November 2006 to file this lethal-injection challenge, rather than amending his federal habeas petition in 2002 to include such a claim,
37

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Jones ran the risk that the State would set his execution during the pendency of his lethal-injection challenge.
The Nelson children, who in 1978 were not only themselves stabbed and shot, but watched their parents killed as well, are by now middle-aged. If the court were to stay execution today, and this litigation were to proceed to its end before this court and on appeal, these children could then reasonably wonder whether Jones’s sentence will be carried out in their lifetimes.
Jones also argues that, when lethal injection became the standard method of execution in Alabama, he was unaware of the risks involved. This argument is unpersuasive in light of the numerous lethal injection challenges that have been brought as early as 2000 in some States. See, e.g., Cooper v. Rimmer, 358 F.3d 655 (9th Cir. 2004) (rejecting an Eighth Amendment challenge to lethal-injection protocol); Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) (same); State v. Webb, 750 A.2d 448 (Conn. 2000) (same); Sims v. State, 754 So.2d 657
38

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(Fla. 2000) (same). Jones could have filed suit and discovered the alleged risks involved with lethal execution as a method of execution well before now.
Further evidence of Jones’s delay can be found in the procedural history of this case. On December 4, 2006, the State filed a motion asking the Alabama Supreme Court to set an execution date for Jones. Knowing that this motion was pending in state court, Jones agreed to a Rule 26(f) report in this § 1983 action that set discovery deadlines and a trial date months away. It was only after the State set an execution date for May 3, 2007--five months before the trial--that Jones sought to expedite matters, such as discovery in this case. If Jones had been truly interested in litigating the issues of his claim and not merely delaying his execution, he should have asked the court to expedite matters in December so he might have had a better opportunity to litigate his case without the need for a stay of execution. Instead, nearly three months after the State
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filed its motion to set an execution date, Jones filed his motion for a stay.
In light of the circumstances outlined above, the equities do not support granting the motion for a stay and allowing Jones to delay his execution.
III. CONCLUSION Because the court is unaware of any case (other than Cooey) where the statute of limitations has been used to bar injunctive relief from an injury that has not yet occurred, the defendants’ motion for summary judgment will be denied. Instead, the concerns animating the defendants’ statute-of-limitations argument are in this case adequately addressed in this court’s equitable determination of whether Jones’s execution should be stayed so that his lethal-injection challenge can proceed on the merits. Even if no motion to stay were pending, the defendants could still raise a laches defense; in such a case, the court would have flexible discretion to
40

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balance the equities based on the many and varying circumstances that might be presented. See 30A C.J.S. Equity § 131; 27A Am.Jur.2d Equity § 141).
In light of Hill I, Nelson, and their progeny, a condemned prisoner would be foolish to sit on his methodof-execution rights while pursuing habeas relief on the validity of his underlying conviction and sentence. The debate over when a prisoner should file a method-ofexecution suit is central to the equitable inquiry under Hill I and Nelson. Therefore, while this court disagrees with Cooey that the statute of limitations is the appropriate vehicle for the State to vindicate its interest in carrying out executions in a timely manner, the equities nonetheless strongly disfavor a § 1983 plaintiff, such as Jones, who would have the court stay his execution so that he may pursue litigation he could have initiated years ago.
For the foregoing reasons, the defendants’ motion for summary judgment and Jones’s motion for a stay of
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execution are both denied. An appropriate judgment will be entered.
DONE, this the 17th day of April, 2007. /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

 
 Case 2:06-cv-00986-MHT-TFM Document 1 Filed 11/01/2006 Page 1 of 9

IN THE UNITED STATES DISTRICT COU9 F V F 0
FOR THE MIDDLE DISTRICT OF ALABAMA

AARON LEE JONES,

*

- I A 10: 21

:
Plaintiff *

*
V.
*

RICHARD ALLEN, Commissioner,

*

Alabama Department of Corrections,

*

*

GRANTT CULLIVER, Warden,

*

Holman Correctional Facility, and

*

*

OTHER UNKNOWN EMPLOYEES

*

AND AGENTS,

*

Alabama Department of Corrections,

*

*

Individually, and in their

*

official capacities.

*

*

Defendants.

*

ErcAO-pE.,.1OCF1CSETTTRCOTT1AUCLLA

/7 Case No. /—' L/

\J L

COMPLAINT 1. This is a civil rights action brought under 42 U.S.C. § 1983 and the United States

Constitution for violations and threatened violations of Plaintiff Aaron Lee Jones' rights to be

free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the

United States Constitution. Mr. Jones is a condemned Alabama prisoner who seeks declaratory

and injunctive relief to prevent the Defendants from using Alabama's current lethal injection

procedures to execute him. The Defendants' improper use of anesthesia as a precursor to

execution unnecessarily risks infliction of severe pain and suffering. In addition, because the

chemicals used for execution require the proper induction and maintenance of anesthesia, the

Defendants' failure to use medically approved procedures and properly trained personnel creates

an unacceptable risk that Mr. Jones will suffer excruciating pain during the course of his

Case 2:06-cv-00986-MHT-TFM Document 1 Filed 11/01/2006 Page 2 of 9
execution. Mr. Jones also suffers from one or more medical conditions that may create further unacceptable risk of excruciating and/or unnecessary pain during the course of his execution.
JURISDICTION 2. Jurisdiction over this matter arises under 42 U.S.C. § 1983, 28 U.S.C. § 1331, 28
u.s.c. § 1343(a)(3), 28 u.s.c. § 2201, and 28 u.s.c. § 2202.
VENUE
3. Venue is appropriate in the Middle District of Alabama under 28 u.s.c.
§ 1391(b).
THE PARTIES 4. Plaintiff Aaron Lee Jones is a United States citizen and a resident of the State of Alabama. Mr. Jones is a death-sentenced prisoner currently being held in the custody of the Alabama Department of Corrections ("ADOC") at Donaldson State Prison. 5. Defendant Richard Allen is the Commissioner of the ADOC. Defendant Grantt Culliver is the Warden of the Holman Correctional Facility in Atmore, Alabama. Other Unknown Employees and Agents of the ADOC are involved in the development and execution of lethal injections; Plaintiff does not yet know the identity of these persons. All of the Defendants are being sued in their individual and official capacities. The named Defendants are citizens and residents of the State of Alabama.
JUSTICIABLE CASE OR CONTROVERSY 6. There is a real and justiciable case or controversy between the parties.
2

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7. Plaintiff Aaron Lee Jones is a death-sentenced prisoner who has been convicted of capital murder in the state courts of Alabama. Mr. Jones has filed a petition for a writ of habeas

corpus with the United States Supreme Court, the adjudication of which is pending. 8. On information and belief, the ADOC has adopted a written and confidential

execution protocol for administering capital punishment by lethal injection. 9. Plaintiff challenges the constitutionality of Alabama's lethal injection procedures
under 42 U.S.C. § 1983. 10. Absent the intervention of the United States Supreme Court on Mr. Jones' petition

for habeas relief, Mr. Jones will be executed pursuant to Alabama's lethal injection procedures.

There is thus ajusticiable case or controversy regarding the constitutionality of Alabama's lethal

injection procedures.

GENERAL ALLEGATIONS

11. A jury in Blount County, Alabama found Mr. Jones guilty of capital murder on

July 28, 1979. The Alabama Court of Criminal Appeals overturned the conviction on the

authority of Beck v. Alabama, 447 U.S. 625 (1980) and Ritter v. State, 403 So. 2d 154 (Ala.

1981). Mr. Jones was retried and found guilty of capital murder on December 10, 1982. Mr.

Jones was sentenced to death.

12. Mr. Jones' conviction and sentence were affirmed on direct appeal and his state

post-conviction petition was denied. 13. Mr. Jones filed a petition for writ of habeas corpus with the United States District
Court for the Northern District of Alabama, which was denied on February 6, 2004. Jones v. Campbell, No. CV 00-J-3608-S (N.D. Ala. Feb. 6, 2004). On January 20, 2006, the Eleventh Circuit affirmed the District Court's judgment denying Mr. Jones habeas relief, and on March

23, 2006, the Eleventh Circuit denied Mr. Jones' petition for rehearing and rehearing en banc.

3

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Mr. Jones filed a petition for a writ of certiorari with the United States Supreme Court on July 21, 2006, which petition is pending.
14. Under Alabama law, the ADOC is responsible for carrying out executions, all of which take place at the Holman Correctional Facility. ALA. CODE § 15-18-82 to -82.1 (1975). Alabama law does not prescribe specific drugs, dosages, drug combinations, sequences, or maimer of administering lethal chemicals to carry out executions; nor does it prescribe any certification, training, or licensure required of those who participate in either the anesthesia process or the execution.
15. Upon information and belief, Alabama's execution procedures are deemed confidential, and the Defendants will not publicly disclose any details about the procedures
involved in carrying out executions in Alabama. 16. Plaintiff asserts upon information and belief that Alabama uses drugs to achieve
first anesthesia, then paralysis, and finally execution by cardiac arrest. The chemicals used include Thiopental, Pavulon, and Potassium Chloride. This combination will likely subject Mr. Jones to an excruciatingly painful and torturous death.
17. On information and belief, the first drug, Thiopental (also known as sodium pentothal), is an ultra-short acting barbiturate that depresses the central nervous system to produce unconsciousness and anesthesia. Thiopental derives its utility from its rapid onset and rapid redistribution through the body at surgical doses. Typically, Thiopental is used in the induction phase of anesthesia to temporarily anesthetize patients for sufficient time to, for
example, intubate the trachea. 18. If it is necessary to maintain a patient in a surgical plane of anesthesia for longer
than just a few minutes, physicians typically use drugs that are longer-lasting than Thiopental. If
4

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Thiopental is used not only to induce, but also to maintain, a surgical plane of anesthesia, a qualified person must be present to continually monitor the patient to ensure that the Thiopental has been correctly administered (repeated intravenous doses are usually required) and is maintaining the patient in a state of unconsciousness.
19. Next, on information and belief, Defendants administer pancuronium bromide, also referred to as Pavulon, which paralyzes voluntary muscles, including the diaphragm. Pavulon does not affect consciousness or the perception of pain. To the extent that the first chemical, Thiopental, is improperly administered and fails to establish and maintain a sufficient plane of anesthesia, the Pavulon serves only to mask from observers (but not the prisoner) the pain and suffering that would attend a paralyzed diaphragm. In addition, the paralysis that Pavulon induces ultimately causes an intense, painful death by asphyxiation. Pavulon masks the telltale physical signs that would signal a properly trained observer whether or not a prisoner had been sufficiently anesthetized.
20. Finally, the drug that is used to fatally poison the prisoner is potassium chloride. Potassium chloride disrupts the normal electrical activity of the heart and stops it from pumping blood, thereby causing cardiac arrest. As it travels in the bloodstream from the site of injection towards the heart, potassium chloride activates all the nerve fibers inside the vein, causing a burning sensation as it courses through the body and ravages the internal organs.
21. This causes excruciating pain that is agonizing for a recipient who has not been properly anesthetized. Because of this risk of excruciating pain, the use of potassium chloride requires an appropriate anesthesia protocol prior to its administration to ensure an adequate depth of anesthetic plane. However, anesthetic depth cannot be reliably determined during Alabama executions because Pavulon blocks an accurate assessment by observers by paralyzing all of the
5

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muscles which would otherwise move when a prisoner is in excruciating pain. Because no one can reliably assess anesthetic depth using this process (and make appropriate adjustments), the procedures the Defendants use can result in the extreme terror and suffering of conscious suffocation.
22. The American Veterinary Medical Association (AVMA) states that the use of neuromuscular paralyzing drugs, including pancuronium bromide (Pavulon), solely or in conjunction with other drugs, is unacceptable as a method of euthanasia. The AVMA further states that the use of potassium chloride in a euthanasia protocol requires a surgical plane of anesthesia, which is characterized by loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli. The AVMA recommends the use of a longer lasting barbiturate for animal euthanasia than the Thiopental that is used in Alabama executions of death-sentenced prisoners.
23. Defendants do not conduct lethal injections that comport with the appropriate standards of practice for inducing and monitoring anesthesia as a precursor to execution. Nor do Defendants take effective measures to ensure that a prisoner will not suffer a conscious and painful death, constituting cruel and unusual punishment under the current anesthesia procedures.
24. Defendants' anesthesia procedures lack medically necessary safeguards, and therefore substantially increase the risk that an inmate such as Mr. Jones will suffer unnecessary severe pain during the course of his execution. For example, on information and belief, there is no standardized time to administer each of the three chemicals. There are no procedures for ensuring that the anesthetic agent is properly flowing into the prisoner, and no procedures for ensuring that the prisoner is properly sedated prior to the administration of other chemicals, as
6

Case 2:06-cv-00986-MHT-TFM Document 1 Filed 11/01/2006 Page 7 of 9
would be required in any medical or veterinary procedure before the administration of a
neuromuscular blocking agent (such as pancuronium bromide) or the administration of a painful potassium chloride overdose.
25. Defendants' existing procedures do not require the personnel who perform the tasks in the anesthesia and execution processes to have any minimum qualifications or expertise. Defendants do not adequately ensure that the individuals responsible for inducing and maintaining unconsciousness are credentialed, licensed, and proficient in the knowledge, skills, and procedures necessary to establish an appropriate plane of anesthesia throughout the lethal injection process, notwithstanding the fact that it is a complex medical procedure requiring expertise to be performed correctly.
26. The absence of medical personnel who are credentialed, licensed, and proficient in the field of anesthesiology and the lack of adequate procedures greatly increases the risk that a prisoner will not receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and then experiencing the extremely painful internal "burn" of the potassium chloride, and greatly increases the risk that a conscious prisoner will experience excruciating pain and suffering.
27. The lack of adequate standards for administration of chemicals, the lack of qualifications of the personnel involved in the process, and the combination of the drugs the Defendants use as a precursor to an execution, as well as for the execution, create a grave and substantial risk that Mr. Jones will be conscious throughout the execution process and, as a
result, will experience an excruciatingly painful and protracted death.
7

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CAUSE OF ACTION VIOLATION OF THE RIGHT TO BE FREE FROM CRUEL
AND UNUSUAL PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION. 28. Commissioner Allen, Warden Culliver, and other Unknown Employees and Agents of the Alabama Department of Corrections are acting under color of Alabama law in undertaking to execute Plaintiff Aaron Lee Jones by lethal injection using an insufficient, improperly designed and improperly administered procedure for inducing and maintaining anesthesia prior to execution, and by using chemicals that cause severe pain in the process of causing death, such that Plaintiff will unnecessarily suffer an excruciating death in violation of his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. 29. Although it is possible to conduct executions in a constitutionally compliant maimer, Defendants have chosen not to do so. While Defendants could select additional or alternative chemicals and/or retain qualified medical personnel to administer its chosen chemicals to ensure the constitutionality of its lethal injection procedure, Defendants have failed to do so and have acted with deliberate indifference. Defendants' current lethal injection procedures violate evolving standards of decency. See Estelle v. Gamble, 429 U.S. 97, 102 (1976) (noting that the Eighth Amendment requires courts to assess "'evolving standards of decency that mark the progress of a maturing society") (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)); Gregg v. Georgia 428 U.S. 153, 173 (1976) (stating that the Eighth Amendment prohibits infliction of unnecessary and wanton pain).
8

Case 2:06-cv-00986-MHT-TFM Document 1 Filed 11/01/2006 Page 9 of 9

PRAYER FOR RELIEF For these reasons, Plaintiff Aaron Lee Jones respectfully requests this Court to: A. Enter a declaratory judgment that Defendants' inadequate anesthesia and
execution procedures violate Plaintiffs right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution; B. Grant injunctive relief to enjoin Defendants from executing Plaintiff with inadequate anesthesia and execution procedures which violate Plaintiffs right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution; C. Grant reasonable attorneys' fees pursuant to 42 U.S.C. § 1988 and the laws of the United States, as well as costs of suit; and D. Grant any further relief as it deems just and proper.
Respectfully submitted,

Octobet, 2006

HEATH K. MCDEVITT*
STEPHANIE CdHEN* White & Case LLP 1155 Avenue of the Americas New York, NY 10036 (212) 819-8200 vfitzpatrick@whitecase. corn hmcdevitt@whitecase. corn stephcohen@whitecase.com
Counsel for Plaintiff
*Motionfor admission pro hac vice pending

9

 
 Case 2:06-cv-00986-MHT-TFM Document 9 Filed 12/04/2006 Page 1 of 9

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

AARON LEE JONES,

)

)

Plaintiff,

)

)

v.

)

)

RICHARD ALLEN, Commissioner,

)

Alabama Department of Corrections, )

And GRANTT CULLIVER, Warden, )

Holman Correctional Facility

)

)

Defendants.

)

No. 2:06-cv-00986-MHT-DRB

DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT

Defendants, Richard Allen, in his official capacity as Commissioner of the Alabama Department of Corrections, and Grantt Culliver, in his official capacity as Warden of the Holman Correctional Facility, for their answer to the plaintiff’s complaint, state as follows:
Response to Numbered Paragraphs 1. Defendants admit that plaintiff is an individual in the custody of the Alabama Department of Corrections and is currently incarcerated on death row. Defendants further admit that plaintiff purports to make a claim under 42 U.S.C. § 1983. Defendants deny any remaining allegation in paragraph 1 of the complaint. 2. Defendants do not contest subject-matter jurisdiction or jurisdiction over the person, to the extent plaintiff’s claims are not barred by sovereign immunity. 3. Defendants do not contest venue. 4. Admitted. 5. Defendants admit that Richard Allen is the Commissioner of the Alabama

Case 2:06-cv-00986-MHT-TFM Document 9 Filed 12/04/2006 Page 2 of 9
Department of Corrections and that Grantt Culliver is the Warden of the Holman Correctional Facility in Atmore, Alabama. Defendants deny any remaining allegation in paragraph 5, deny that plaintiff has stated a claim against the Defendants in their individual capacity, and deny that plaintiff may sue fictitious parties in this Court.
6. Defendants admit that the parties take different positions with respect to the constitutionality of Alabama’s method of administering capital punishment by lethal injection. Defendants deny that plaintiff has stated a viable claim, deny that plaintiff is entitled to any relief, and deny that plaintiff would be entitled to a stay of execution if so requested.
7. Defendants admit that plaintiff was convicted of capital murder in the state courts of Alabama and sentenced to death. Defendants admit that plaintiff has filed a petition for writ of certiorari in the United States Supreme Court with respect to his unsuccessful federal habeas corpus action.
8. Admitted. 9. Defendants admit that the parties take different positions with respect to the constitutionality of Alabama’s method of administering capital punishment by lethal injection. Defendants deny that plaintiff has stated a viable claim, deny that plaintiff is entitled to any relief, and deny that plaintiff would be entitled to a stay of execution if so requested. 10. Defendants admit that the parties take different positions with respect to the constitutionality of Alabama’s method of administering capital punishment by lethal injection. Defendants deny that plaintiff has stated a viable claim, deny that plaintiff is entitled to any relief, and deny that plaintiff would be entitled to a stay of execution if so requested. 11. Admitted. 12. Admitted.
2

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13. Admitted. 14. Defendants admit that the Department of Corrections carries out executions. Defendants cannot at this time (before entry of an appropriate protective order) admit or deny, in a public document, any detail concerning Alabama’s Confidential Execution Procedures Protocol, and deny the allegations of paragraph 14. Defendants further deny that execution by lethal injection is a medical procedure requiring the same safeguards and oversight as such procedures, and deny that execution by lethal injection is governed by rules and regulations applying to medical procedures. 15. Admitted 16. Defendants cannot at this time (before entry of an appropriate protective order) admit or deny, in a public document, any detail concerning Alabama’s Confidential Execution Procedures Protocol, and deny the allegations of paragraph 16. Defendants specifically deny that Alabama’s method for carrying out a sentence of death by lethal injections causes or exposes a condemned person to an unnecessary risk of unconstitutional, unnecessary, or gratuitous pain or suffering, and defendants deny that lethal injection as administered in Alabama violates any party’s constitutional rights. Defendants further deny that execution by lethal injection is a medical procedure requiring the same safeguards and oversight as such procedures, and deny that execution by lethal injection is governed by rules and regulations applying to medical procedures. 17. Defendants cannot at this time (before entry of an appropriate protective order) admit or deny, in a public document, any detail concerning Alabama’s Confidential Execution Procedures Protocol, and deny the allegations of paragraph 17. Defendants specifically deny that Alabama’s method for carrying out a sentence of death by lethal injections causes or exposes
3

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a condemned person to an unnecessary risk of unconstitutional, unnecessary, or gratuitous pain or suffering, and defendants deny that lethal injection as administered in Alabama violates any party’s constitutional rights. Defendants further deny that execution by lethal injection is a medical procedure requiring the same safeguards and oversight as such procedures, and deny that execution by lethal injection is governed by rules and regulations applying to medical procedures.
18. Denied. 19. Defendants cannot at this time (before entry of an appropriate protective order) admit or deny, in a public document, any detail concerning Alabama’s Confidential Execution Procedures Protocol, and deny the allegations of paragraph 19. Defendants specifically deny that Alabama’s method for carrying out a sentence of death by lethal injections causes or exposes a condemned person to an unnecessary risk of unconstitutional, unnecessary, or gratuitous pain or suffering, and defendants deny that lethal injection as administered in Alabama violates any party’s constitutional rights. Defendants further deny that execution by lethal injection is a medical procedure requiring the same safeguards and oversight as such procedures, and deny that execution by lethal injection is governed by rules and regulations applying to medical procedures. 20. Defendants cannot at this time (before entry of an appropriate protective order) admit or deny, in a public document, any detail concerning Alabama’s Confidential Execution Procedures Protocol, and deny the allegations of paragraph 20. Defendants specifically deny that Alabama’s method for carrying out a sentence of death by lethal injections causes or exposes a condemned person to an unnecessary risk of unconstitutional, unnecessary, or gratuitous pain or suffering, and defendants deny that lethal injection as administered in Alabama violates any
4

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party’s constitutional rights. Defendants further deny that execution by lethal injection is a medical procedure requiring the same safeguards and oversight as such procedures, and deny that execution by lethal injection is governed by rules and regulations applying to medical procedures.
21. Denied. 22. Denied. 23. Denied. 24. Defendants cannot at this time (before entry of an appropriate protective order) admit or deny, in a public document, any detail concerning Alabama’s Confidential Execution Procedures Protocol, and deny the allegations of paragraph 24. Defendants specifically deny that Alabama’s method for carrying out a sentence of death by lethal injections causes or exposes a condemned person to an unnecessary risk of unconstitutional, unnecessary, or gratuitous pain or suffering, and defendants deny that lethal injection as administered in Alabama violates any party’s constitutional rights. Defendants further deny that execution by lethal injection is a medical procedure requiring the same safeguards and oversight as such procedures, and deny that execution by lethal injection is governed by rules and regulations applying to medical procedures. 25. Defendants cannot at this time (before entry of an appropriate protective order) admit or deny, in a public document, any detail concerning Alabama’s Confidential Execution Procedures Protocol, and deny the allegations of paragraph 25. Defendants specifically deny that Alabama’s method for carrying out a sentence of death by lethal injections causes or exposes a condemned person to an unnecessary risk of unconstitutional, unnecessary, or gratuitous pain or suffering, and defendants deny that lethal injection as administered in Alabama violates any
5

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party’s constitutional rights. Defendants further deny that execution by lethal injection is a medical procedure requiring the same safeguards and oversight as such procedures, and deny that execution by lethal injection is governed by rules and regulations applying to medical procedures.
26. Defendants cannot at this time (before entry of an appropriate protective order) admit or deny, in a public document, any detail concerning Alabama’s Confidential Execution Procedures Protocol, and deny the allegations of paragraph 26. Defendants specifically deny that Alabama’s method for carrying out a sentence of death by lethal injections causes or exposes a condemned person to an unnecessary risk of unconstitutional, unnecessary, or gratuitous pain or suffering, and defendants deny that lethal injection as administered in Alabama violates any party’s constitutional rights. Defendants further deny that execution by lethal injection is a medical procedure requiring the same safeguards and oversight as such procedures, and deny that execution by lethal injection is governed by rules and regulations applying to medical procedures.
27. Defendants cannot at this time (before entry of an appropriate protective order) admit or deny, in a public document, any detail concerning Alabama’s Confidential Execution Procedures Protocol, and deny the allegations of paragraph 27. Defendants specifically deny that Alabama’s method for carrying out a sentence of death by lethal injections causes or exposes a condemned person to an unnecessary risk of unconstitutional, unnecessary, or gratuitous pain or suffering, and defendants deny that lethal injection as administered in Alabama violates any party’s constitutional rights. Defendants further deny that execution by lethal injection is a medical procedure requiring the same safeguards and oversight as such procedures, and deny that execution by lethal injection is governed by rules and regulations applying to medical
6

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procedures. 28. Denied. 29. Denied. Additional Defenses 1. Plaintiff has failed to state a claim on which relief may be granted. 2. Executions are not medical procedures. Executions do not require the same care,
regulation, monitoring or precautions as a medical or surgical procedure after which one is expected to regain consciousness and recover.
3. Plaintiff’s claims are barred by sovereign immunity. 4. Plaintiff’s claims are barred by waiver and estoppel. 5. Plaintiff’s claims are barred by res judicata. 6. Plaintiff has unclean hands. 7. Plaintiff’s claims are barred by laches and applicable statutes of limitation. 8. Plaintiff is not entitled to the relief he seeks. 9. Plaintiff is not a prevailing party and is not entitled to attorneys’ fees. 10. The special circumstances of this case would make an attorneys’ fee award to the plaintiff unjust. 11. The policy rationale supporting the Rooker-Feldman doctrine bars plaintiff’s claims insofar as plaintiff seeks to overturn the judgment of the State court. 12. Plaintiff seeks an improper review by this Court of an adverse ruling in the state courts of Alabama. 13. Plaintiff has failed to join one or more indispensable parties. 14. Plaintiff’s claims are not ripe.
7

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15. Plaintiff cannot prove any conceivable set of facts entitling him to relief as against the Defendants in their individual capacity.
16. Alabama’s Confidential Execution Protocol does not call for the use of excessive force, sadistic acts, or malicious intent.
17. Alabama’s Confidential Execution Protocol does not violate basic principles of human dignity or contemporary standards of decency and is not repugnant to the conscience of mankind.
18. Alabama’s Confidential Execution Protocol does not amount to intentional, reckless indifference to acts violating any party’s constitutional rights.
19. Any interest the plaintiff has in pursuing his claim is outweighed by the State’s interest in the finality of duly adjudicated criminal judgments, the timely administration of death sentences, guarding against a flood of similar claims, and ensuring closure for victims and survivors.
20. Defendants deny that this action entitles plaintiff to a stay of execution if so requested.
Respectfully submitted, TROY KING (KIN047) ATTORNEY GENERAL BY:
s/ J. Clayton Crenshaw J. Clayton Crenshaw (CRE007) Assistant Attorney General s/ James W. Davis James W. Davis (DAV103) Assistant Attorney General
8

 
 Case 2:06-cv-00986-MHT-TFM Document 24 Filed 03/13/2007 Page 1 of 7

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

AARON JONES,
Plaintiff,
v.
RICHARD ALLEN, Commissioner, Alabama Deparment of Corrections, et al.,
Defendants.

) ) ) ) ) No. 2:06-cv-986-MHT-TFM ) ) ) ) ) )

DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND ALTERNATIVE MOTION FOR SUMMARY JUDGMENT REGARDING STATUTE OF LIMITATIONS

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Defendants

Richard Allen, et al., respectfully move this Court to grant them judgment on the

pleadings against the plaintiff, Aaron Jones. In the alternative, pursuant to Rule 56

of the Federal Rules of Civil Procedure, defendants move this Court to enter

summary judgment on their behalf, as there is no genuine issue as to any material

fact and the defendants are entitled to a judgment as a matter of law. As

demonstrated by a recent Sixth Circuit decision addressing when a death row

inmate’s § 1983 method-of-execution challenge accrues for statute-of-limitation

purposes, see Cooey v. Strickland, ---F.3d----, 2007 WL 623482 (6th Cir. Mar. 2,

Case 2:06-cv-00986-MHT-TFM Document 24 Filed 03/13/2007 Page 2 of 7
2007), Aaron Jones’ complaint should be dismissed because it was untimely filed under the relevant limitations period. I. Background
Jones filed a complaint under 42 U.S.C. § 1983 alleging that lethal injection, as presently administered, is unconstitutional under the Eighth and Fourteenth Amendments. Doc. 1 at para. 1. The complaint was filed on November 1, 2006, when Jones had a petition for certiorari pending in the United States Supreme Court that sought review of the Eleventh Circuit’s ruling affirming the denial of Jones’ habeas petition. See Jones v. Campbell, 436 F.3d 1285 (11th Cir. Jan. 20, 2006), rehearing and rehearing en banc, Jones v. Campbell, 179 Fed. Appx. 687 (11th Cir. Mar. 23, 2006), cert. denied, Jones v. Allen, 127 S.Ct. 619 (Nov. 13, 2006).
The complaint does not contain any statements regarding why Jones waited to file this § 1983 lawsuit until his federal habeas challenge was close to conclusion. The complaint itself does not contain any language that indicates that Jones is relying on newly discovered information or evidence. In fact, the complaint appears (with respect) to be a “cookie-cutter” pleading that could have been filed years before. It does not mention the eleven individuals who have been executed by lethal injection in Alabama, nor does it contain any allegations regarding those executions. In fact, the complaint does not even allege that
2

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Alabama’s method of execution will cause pain, only that the drugs used are “likely” to cause pain. See Doc. 1 at para. 16. II. THE STATUTE OF LIMITATIONS RELATING TO JONES’ 1983
COMPLAINT EXPIRED IN 2004 The Supreme Court has held that § 1983 claims are best characterized as tort actions for personal injury and that federal courts must borrow the statute of limitations governing personal injury actions from the State in which the § 1983 action was brought. Wilson v. Garcia, 471 U.S. 261, 275-76, 105 S.Ct. 1938 (1985). In Alabama, the general statute of limitations for personal injury actions is two years. Ala. Code § 6-2-38(l). Thus, the applicable statute of limitations for actions brought under § 1983 is two years. The question then becomes, when did Jones’ cause of action challenging Alabama’s method of execution accrue? “Federal law determines when the statute of limitations begins to run; generally, the statute of limitations does not begin to run until the facts that would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Porter v. Ray, 461 F.3d 1315, 1323 (11th Cir. 2006)(quotation omitted). Thus, “Section 1983 actions do not accrue until the plaintiff knows or has reason to know that he has been injured.” Mullianax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987)(citation omitted). As will be demonstrated, Jones’ cause of action accrued when Alabama on July 1, 2002, changed its method of execution to lethal
3

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injection. See Ala. Code 15-18-82.1 (2006 Cumulative Supplement)(noting the Act which added this section became effective on July 1, 2002). Thus, Jones’ complaint, which was filed on November 1, 2006, was filed over two and a half years after the governing statute of limitations expired.
The Sixth Circuit, in Cooey v. Strickland, ---F.3d----, 2007 WL 623482 (6th Cir. Mar. 2, 2007), recently determined when a death row inmate’s § 1983 methodof-execution challenge accrues for statute-of-limitation purposes.1 In answering this question, the Cooey Court was “guided by the principle that a plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.” Id., *3 (internal citation and punctuation omitted). The Court stated that “the most logical choice of a triggering event is the point when the death penalty is ordered, upon judgment of conviction and sentence.” Id. at *5. To support its conclusion, the Cooey Court cited a Fifth Circuit decision that holds that a method-of-execution claim may be raised any time after the inmate’s conviction becomes final on direct appeal. Id., citing Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006). In addition, the Cooey Court emphasized that this triggering date mirrored the one found in 28 U.S.C. § 2244(d)(1)(A): “upon conclusion of direct review in the state court or the
1 The Cooey case appears to be the only reported decision of a federal court addressing the issue of when a death row inmate’s Section 1983 method-of-execution challenge accrues for statute of limitation purposes.
4

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expiration of time for seeking such review.” Id., at *8. Under that particular triggering event, the inmate’s claim in Cooey would have accrued in 1991, after the United States Supreme Court denied direct review.
Because Ohio didn’t adopt lethal injection as a method of execution until 1993, or make it the exclusive method of execution until 2001, “the accrual date must be adjusted because Cooey obviously could not have discovered the injury until one of those two dates.” Id., at *9. The Court didn’t decide between the two dates because Cooey’s claim was untimely under either. Id.
Applying the holding of Cooey to this case, Jones’ lawsuit should be dismissed because it was filed after the statute of limitations had expired. There are two triggering dates that this Court may use in determining when Jones’ cause of action accrued. The first is when Alabama changed its method of execution to lethal injection, which became effective on July 1, 2002. See Ala. Code § 15-1882.1 (2006 Cumulative Supplement).2 Using this triggering date, any claim filed after July 1, 2004, is untimely. The other possible triggering date is the date on which Jones had an opportunity to affirmatively choose electrocution. See Ala. Code § 15-18-82.1 (2006 Cumulative Supplement)(“The election for death by
2 Because Jones’ direct review ended on October 3, 1988, when the United States Supreme Court denied certiorari review, see Jones v. Alabama, 488 U.S. 871, 109 S.Ct. 182 (1988) that date is not available as a possible accrual date because Alabama at that time did not use lethal injection as a method of execution.
5

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electrocution is waived unless it is personally made by the person in writing and delivered to the warden of the correctional facility within 30 days after the certificate of judgment pursuant to a decision by the Alabama Supreme Court affirming the sentence of death or, if a certificate of judgment is issued before July 1, 2002, the election must be made and delivered to the warden within 30 days after July 1, 2002.”) Jones knew on July 31, 2002, when he did not affirmatively in writing select electrocution as a method of execution, that lethal injection was the method of execution that will be used by the State. Hence, even applying this later triggering date, any claim relating to lethal injection should have been filed by July 31, 2004.
Under either triggering date, Jones filed his complaint too late. On the authority of Cooey, Jones’ complaint should be dismissed on statute-of-limitations grounds.
Wherefore, for the foregoing reasons, the defendants respectfully request this motion be granted.
Respectfully submitted, TROY KING ALABAMA ATTORNEY GENERAL
/s/ J. Clayton Crenshaw J. CLAYTON CRENSHAW ASSISTANT ATTORNEY GENERAL
6

 
 04/27/2007 11 :54 FAX 4043358182

CLERK-USCA-1lth

1;1J002/013

[PUBLISH)

IN THE UNITED STATES COURT OF APP ~A[ ,S F I LED

FOR THE ELEVENTH CIRCUIT

U.S, COURY OF APPEALS
~2120D71 ELEVEN"n-t CIRCUIT

No. 07-1 1840-P D.C. Docket No. 2:06-cv-986-:MHT-TFM

THOMA:> K. KAHN CLERK.. - .._. --",--.

AARON LEE JONES,

versus

Plaintiff-Appellant,

RICHARD ALLEN, Commissioner, Alabama Department of Corrections, individually and in his official capacity, GRANTT CULUVER, Warden, Holman Correctional Facility in his individual and official capacity,

Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Alabama

Before ANDERSON, BIRCH, and DUBINA, Circuit Judges.

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DUBINA, Circuit Judge: Plaintiff Aaron Lee Jones ("Jones") is an Alabama death row inmate
scheduled for execution on May 3,2007. On November 1, 2006, Jones filed a complaint under 42 U.S.C. § 1983 challenging the three-drug protocol Alabama will use to carry out his execution by lethal injection. After receiving notice that the Alabama Supreme Court set an execution date of May 3, 2007, Jones filed a motion to stay his execution. The district court denied Jones's motion to stay and denied in part and granted in part Jones's motion to alter or amend the judgment. Jones appealed the district court's judgment and filed in this court a motion 10 stay his execution. After reviewing the record and reading the parties' briefs, we affirm the district court's judgment and deny Jones's motion to stay his execution.
1. BACKGROUND The details of Jones's crimes are set forth in our opinion affirming the district court's judgment denying Jones federal habeas relief. See Jones v. Campbell, 436 F.3d 1285 (lIth Cir.), cert. denied, Jones v. Allen, 127 S. Ct. 619 (2006). Briefiy, in November 1978, Jones and a co-defendant brutally murd~red a
grandmother, mother, and father, and severely wounded three children, all in the
same family. Two of the wounded children who witnessed the horror of these crimes testified at Jones's trial.
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After a jury found Jones guilty of capital murder under Ala. Code § 13-112(a)(10) (1979) (repealed 1981), the jury recommended a death sentence. The trial court agreed with the jury's recommendation and imposed a death sentence. On appeal, the Alabama Court of Criminal Appeals reversed the conviction and ordered a new trial pursuant to Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382 (1980). and Ritter v. State, 403 So. 2d 154 (Ala. 1981). Following a retrial, the jury again found Jones guilty and recommended that he be sentenced to death. The trial court followed the jury's recommendation and sentenced Jones to death. On appeal, the Alabama Court of Criminal Appeals remanded the case to the trial court to allow the trial court to clarify its sentencing order regarding the mitigating and aggravating circumstances. Following this limited remand, the state appellate court affirmed Jones's conviction and death sentence. See Jones v. State, 520 So. 2d 543 (Ala. Cnm, App. 1984). The Alabama Supreme Court affIrmed, Ex parte Jones, 520 So, 2d 553 (Ala. 1988), and the United States Supreme Court denied certiorari review, Jones v. Alabama, 488 U.S. 871, 109 S, Ct. 182 (1988).
In March 1990, Jones filed a post-conviction petition pursuant to Rule 32, Ala. R. Crim. P., challenging his conviction and sentence. The trial court denied Jones post-conviction relief, and the Alabama Court of Criminal Appeals affInned the trial court's order. See Jones v. State, 753 So. 2d 1174 (Ala. Crim. App.
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1999). Jones then filed a federal habeas petition raising numerous claims for relief, including a method-of-execution claim that challenged Alabama's use of electrocution. In July 2002, while Jones's federal habeas petition was pending, the Alabama Legislature changed the State's method of execution from electrocution to lethal injection. The statute gave death-row inmates 30 days to elect electrocution instead. After that period of time, the State's sole method of execution would be lethal injection. See Ala. Code § 15-18-82.1 (2006 Cumulative SUpp.).
In 2004, the district court denied Jones relief, but granted his motion for a Certificate of Appealability ("COA") on four claims of ineffective assistance of counsel. On appeal, we denied Jones relief on the claims presented in the COA. See Jones, 436 F.3d at 1305.
On November 1,2006, Jones filed a § 1983 complaint challenging the State's lethal injection method and procedure. Jones filed a motion to stay his execution on March 14,2007, after receiving notice on or about February 27, 2007, that the Alabama Supreme Court had set an execution date of May 3, 2007. On April 17,2007, the district court denied Jones's motion to stay, finding that the

4

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equities weighed in favor of denying a stay.! Two days later, Jones filed a motion to alter or amend the judgment, which the district court denied in part and gr:mted in part. The district court granted the motion in order to clarifY the appealability of its judgment. On April 24, Jones appealed the district court's judgment and filed a motion to stay his execution.
II. DISCUSSION
As the Supreme Court reiterated in Hill v. McDonough, 126 S. Ct. 2096,
2104 (2006), "a stay of execution is an equitable remedy." A stay "is not available
as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." Id. Thus, a petitioner's complaint under § 1983 does not entitle him to an order staying his execution as a matter of course. "Both the State and the victims of crime have an important interest in the timely enforcement of a sentence." Id. (citing Calderon v. Thompson, 523 U.S. 538, 556, 118 S. Ct. 1489, 1501 (1998)). When considering a motion to stay an execution, we must apply "a strong equitable presumption against the grant of a stay where a claim could have be.en brought at such a time as to allow consideration of the merits without requiring
1 The district court also denied a motion for summary judgment filed by the defendants based on Statute of Limitations grounds. Because the defendants have not filed a cross-appeal as to that ruling, we expressly decline to consider it.
5

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entry of a stay," given the State's significant interest in the enforcement of its criminal judgments. Nelson v. Campbell, 541 U.S. 637, 650,124 S. Ct. 2117, 2126 (2004).
Jones requests that this court reverse the district court's stay order and grant him a stay of execution pending the outcome of his § 1983 challenge to the State's method of execution. Jones argues forcefully in his brief that the district court clearly erred in finding that he acted in a dilatory manner in filing his challenge to Alabama's three-drug lethal injection protocol and claims that he shows a likelihood of success on the merits. He contends that he did not wait until the eve
of his execution, see Hill v. McDonough ("Hill 11"),464 F.3d 1256, 1259-60 (11 th Cir.), cert. denied, 127 S. Ct. 465 (2006); Rutherford v. McDonough, 466 F.3d 970,973-74 (11 th Cir.), cert. denied, 127 S. Ct. 465 (2006), but rather filed this case before the United States Supreme Court denied certiorari review on his
federal habeas petition and before the Alabama Supreme Court set his execution date. Jones claims that he commenced his action when his execution became imminent, and since then he has diligently pursued discovery from the State. He also takes issue with the district court's finding of dilatoriness by in essence blaming the State, and to some extent the district court, for any dilatory conduct.
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The State responds that because Jones was dilatory in bringing his challenge to the State's three-drug lethal injection protocol, he is not entitled to a stay of execution. First, the State asserts that Jones was aware of the existence of a method-of-execution challenge when he filed his federal habeas petition. Second, the State argues that Jones knew either on the date that Alabama changed its method of execution to lethal injection, July 1,2002, or on the date when Jones did not affirmatively elect electrocution as his method of execution, July 31, 2002, that lethal injection was the method the State would use to execute him. Furthermore, between July 2002 and September 30, 2004, Alabama executed six inmates by lethal injection. Yet, Jones waited an additional two years before filing his complaint. Finally, the State claims that these types of challenges have been brought throughout the United States over the past several years, a point Jones makes repeatedly in his filings. Therefore, the State urges this court to affinn the district court's stay order and to deny Jones's motion to stay his execution because Jones filed his challenge "too late in the day." See Hill, 126 S. Ct. at 2104.
In a thorough and well-reasoned opinion, the district court found that Jones was dilatory in bringing his § 1983 action and accordingly found that the equities did not weigh in favor of granting a stay. The district court did not abuse its discretion in denying Jones's motion for a stay of execution. See Delo v. Blair,
7

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509 U.S. 823, 823, 113 S. Ct. 2922, 2923 (1993); see also Hauser ex reI.
Crawford v. Moore, 223 F.3d 1316, 1321 (11th Cir. 2000). As the district court
noted, Jones filed the instant action nearly four years after Alabama made lethal
injection its primary method of execution. Moreover, in his federal habeas
petition filed in 2000, Jones raised a similar claim challenging electrocution as
Alabama's method of execution. When the Alabama Legislature changed the
method of execution to lethal injection, Jones could have then amended his habeas
petition to challenge lethal injection as well.2 By waiting until November 2006 to
Z Despite the fact that Jones filed this suit nearly ten months after we denied his habeas petition in January 2006, he argues that he "naturally believed" his Eighth Amendment claim could be fully adjudicated "and an appeal determined without need for a stay of e)[ecution" because no execution date had been set when he filed his complaint. We think that this was an unreasonable assumption. We agree with the district court's linding of fact that one of the most naturally foreseeable risks facing an inmate who waits to file his method-of-execution challenge until many months after his federal habeas petition has been denied on appeal is that an execution date will be set during the pendency ofthe proceedings, thus necessitating the entry of a stay if full adjudication and an appeal are to be had. This risk is particularly foreseeable in Alabama, where the Alabama Supre.oe Court is authorized to enter an order fixing an inmate's date of execution "at the appropriate time." Ala. R. App. P. 8(d) ("The supreme court shall at the appropriate time enter an order fixing a date of execution." (emphasis added». It is common practice in Alabama for the State to seek an execution date soon after the Supreme Court denies certiorari review of an inmate's federal habeas petition. As a matter of common sense, completion of collateral review eliminates the last possible obstacle to execution, and Jones should have foreseen that the execution date would likely be set promptly upon completion of collateral review. Although Jones suggests that the State acted inappropriately in seeking an execution date in this case, we note that the district court expressly found as a fact that "there is 00 evidence in this cllse that the State sought and obtained an execution date for Jones in bad faith." Jones v. Allen, No.l:06-cv-00986-MHT-TFM, slip. op. at 37 (M.D. Ala. April 17,2007).
Waiting to file suit until the Supreme Court has denied certiorari review of all
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file his lethal injection challenge, Jones faced the possibility that the Alabama
Supreme Court would set his execution date during the pendency of his lethal
injection challenge.
We see no convincing reason why, after Alabama made lethal injection its
primary method of execution, Jones could not have brought his method-of-
execution challenge sooner than he did. Jones knew ofthe State's intention to
execute him at least by July 2002. "It was during that period - in which the
inmate's federal habeas petition, or, as Jones did, waiting until a petition for certiorari has been pending for over three months, is simply too late to avoid the inevitable need for a stay of execution. See Harris v. Johnson, 376 F.3d 414, 417 (5th Cir. 2004) ("The brief window of time between the denial of certiorari and the state's chosen execution date ... is an insufficient period in which to serve a complaint, conduct discovery, depose experts, and litigate the issue on the merits."). The district court made a factual finding that adjudicating Jones's claim in the trial court would take "much more than three months" and that a subsequent appeal "would add months, if not years, to this litigation." Jones, slip op. at 37. We agree lind thus cllnnot say that Jones's suit was filed in time to allow full adjudication without the need for a stay of execution.
Jones says that he did not pursue his method-of-exeeution claim any earlier than November 2006 because it was not ripe for consideration before that time. Jones argiles that ripeness occurred only when there was a "strong possibility" that he "actually faced execution" by lethal injection. We need not determine with specificity when Jones's claim became ripe. But see Gomez v. U.S. Dist. Ct. [or N.D. Cal., 503 U.S. 653,654,112 S. C1. 1652,1653 (1992) ("This claim [a challenge to lethal injection) could have been brought more than a decade ago."). However, we can say in any event that, even under Jones's definition of ripeness, there was far more than a "strong possibility" that Jones would be put to death by lethal injection by January 2006 (when we denied relief on Jones's habeas petition). See Harris, 376 F.3d at 418 (requiring method-of-execution claim to be punued even when death by lethal injection is merely "an event reasonably likely to occur in the future"). Indeed, by January 2006, given the extremely small chance of securing certiorari review in the Supreme Court, it was all but guaranteed that Jones would die by lethal injection. Yet Jones has offered no reason at all for his decision to wait nearly ten additional months to file this suit.
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execution was not so much an imminent or impending danger as it was an event
reasonably likely to occur in the future - that [Jones] needed to file this
challenge." Harris, 376 F.3d at 418. By waiting until November 2006 to file his
challenge to the State's lethal injection protocol, Jones "leaves little doubt that the
real purpose behind his claim is to seek a delay of his execution, not merely to
effect an alteration ofthe manner in which it is carried out." Id. J
J Although it does not explicitly say so, Jones's brief might be read to suggest lhat he was impeded in filing this suit earlier by the fact that the State's lethal injection protocol is confidential and that specific information about it was learned only through discovery. To the extent that he makes this argument, we reject it. The crux of Jones's challenge to the lethal injection protocol- despite other general allegations about the training of the prison staff, etc. - is that the first of the three drugs (sodium thiopental) will be administered in such a way that it will not induce a sufficiently deep plane of anesthesia and that, as a result, he will be conscious but physically paralyzed (because of the second drug, a paralytic agent known as pancuronium bromide) when the third, excruciatingly painful and death-inducing drug (potassium chloride) is administered. Regardless of the confidentiality of the State's protocol, Jones cannot assert that he was unaware of the fact that the State (like almost every other state that carries out executions using lethal injection) employs this three-drug cocktail. Any such assertion is belied by his complaint, which alleges "upon information and belief" that the State uses "Thiopental, Pavulon, and Potassium Chloride ... to achieve first anesthesia, then paralysis, and finally ... cardiac arrest." Compl.1[ 16. Thus, Jones knew of the basis of his claim before he tilcd his complaint. Moreover, the expert upon whom Jones relies in pursuing this challenge has been opining on the alleged risks associated with this particular three-drug cocktail since at least 2003. The fact that Jones knew or should have known before 2006 that the Stall, uses the same three-drug cocktail as nearly every other state where substantially similar challenges have been made, coupled with the fact that the alleged risks associated with the cocktail were known three years before Jones filed his complaint, compels us to rejecl any argument Jones has made that his attempts to pursue this challenge earlier were impeded by the secrecy of the protocol. Moreover, tbe district court found as a fact that Jones either was or should have been aware ofthe risks involved and the potential challenge to the lethal injection procedure well before he filed suit. See Jones, slip op. at 38-39 (citing numerous cases mounting challenges similar to Jones's dating back to the year 2000). Jones has wholly failed to demonstrate that this finding of fact is clearly erroneous.
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We are mindful that the proper query in this case is whether Jones could have brought his claim "at such a time as to allow consideration of the merits without requiring entry of a stay." Nelson, 541 U.S. at 650, 124 S. Ct. at 2126; see also Patton v. Jones, 193 Fed. Appx. 785, 788-89 (lOth CiT. Aug. 25, 2006) (denying requested stay of execution in § 1983 lethal injection challenge, emphasizing there was no legal impediment to filing the § 1983 action while the collateral appeals were ongoing). In answering this question, we must be "sensitive to the State's strong interest in enforcing its criminal judgments wi.thout undue interference from the federal courts." Hill, 126 S. Ct. at 2104 (citing Nelson, 541 U.S. at 649-50, 124 S. Ct. at 2126). Not only the State, but also the Nelson children, who watched Jones and his co-defendant kill their parents and grandmother and who themselves were stabbed and shot, have a strong interest in seeing Jones's punishment exacted. If this court were to grant the motion to stay to allow Jones to proceed on his § 1983 challenge in district court, the implementation of the State's judgment would be delayed many months, ifnot years. Jones, in essence, would receive a reprieve from his judgment. See Thompson v. Wainwright, 714 F.2d 1495,1506 (11th Cir. 1983) (observing that "[e]ach delay, for its span, is a commutation of a death sentence to one of imprisonment"). The State and the surviving victims have waited long enough for
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some closure to these heinous crimes. We will not interfere with the State's strong interest in enforcing its judgment in this case.
Accordingly, we affinn the district court's judgment denying Jones's motion to stay his execution, and we deny Jones's motion to stay filed with us.
AFFIRMED; STAY OF EXECUTION DENIED.'

• Jones's reply brief advises that another district judge in Alabama has indicated the possibility of a trial on the lethal injection issue for June 26, 2007. Jones argues that we should grant him a stay for this reason. We cannot agree. Jones would have been entitled to a trial on the merits had he brought his suit in time to allow consideration of the merits without requiring entry of a stay, but he did not. Thus, the strong presumption against a stay operates against Jones. The mere setting of a trial date in another case does noC increase whatever preexisting risk there was that a mistake will be made in his imminent execution (and cause pain that rises to the level of cruel and unusual punishment). In fact, the equitable considerations in each case are naturally different. Thus, the mere possibility of a trial date in another case does not affect the balancing of the equities in this cast'.
12

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

Page 1 of 13

APPEAL, DEATHPENALTY, MHT-ClerkB
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:06-cv-00986-MHT-TFM

Jones v. Allen et al (DEATH PENALTY) Assigned to: Honorable Myron H. Thompson Referred to: Honorable Terry F. Moorer Cause: 42:1983 Prisoner Civil Rights

Date Filed: 11/01/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Aaron Lee Jones

represented by Heather K. Mcdevitt White & Case LLP 1155 Avenue of the Americas New York, NY 10036 212-819-8200 Fax: 212-354-8113 Email: hmcdevitt@whitecase.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie L. Cohen White & Case LLP 1155 Avenue of the Americas New York, NY 10036 212-819-8200 Fax: 212-354-8113 Email: stephcohen@whitecase.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vincent R Fitzpatrick, Jr. White & Case LLP 1155 Avenue of the Americas New York, NY 10036 212-819-8200 Fax: 212-354-8113 Email: vfitzpatrick@whitecase.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Richard Allen Commissioner, Alabama Department of

represented by James Clayton Crenshaw Office of the Attorney General

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Corrections, individually and in his official capacity
Defendant Grantt Culliver Warden, Holman Correctional Facility in his individual and official capacity

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
James William Davis State of Alabama Office of the Attorney General 11 South Union Street Montgomery, AL 36130 334-242-7300 Fax: 334-353-8440 Email: jimdavis@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Roy Houts Attorney General's Office 11 South Union Street Montgomery, AL 36130 334-242-7355 Fax: 334-353-3637 Email: jhouts@ago.state.al.us TERMINATED: 03/28/2007 ATTORNEY TO BE NOTICED
represented by James Clayton Crenshaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Roy Houts (See above for address) TERMINATED: 03/28/2007 ATTORNEY TO BE NOTICED

Date Filed 11/01/2006

#

Docket Text

1 Inmate 1983 COMPLAINT against all defendants ( Filing fee $ 350.00

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11/01/2006
11/01/2006
11/01/2006
11/06/2006
11/09/2006 11/16/2006
11/20/2006
12/04/2006 12/04/2006 12/05/2006
12/22/2006 12/27/2006 01/05/2007

receipt number 112054.), filed by Aaron Lee Jones.(cb, ) (Entered: 11/03/2006)
2 Motion to Appear Pro Hac Vice (Stephanie Cohen) ( Filing fee $ 20.00 receipt number 112054.) by Aaron Lee Jones. (Attachments: # 1 Certificate of Goodstanding and & Proposed Order)(cb, ) (Entered: 11/03/2006)
3 Motion to Appear Pro Hac Vice (Heather McDevitt) ( Filing fee $ 20.00 receipt number 112054.) by Aaron Lee Jones. (Attachments: # 1 Certificate of Goodstanding and Proposed Order)(cb, ) (Entered: 11/03/2006)
4 Motion to Appear Pro Hac Vice (Vincent FitzPatrick) ( Filing fee $ 20.00 receipt number 112054.) by Aaron Lee Jones. (Attachments: # 1 Certificate of Goodstanding and Proposed Order)(cb, ) (Entered: 11/03/2006)
5 ORDER granting 2,3, and 4 Motion for Stephanie Cohen, Heather McDevitt, and Vincent FitzPatrick Leave to Appear Pro Hac Vice. Signed by Judge Myron H. Thompson on 11/6/06. (cb, ) (Entered: 11/06/2006)
6 Summons Issued: Summons and Complaint issued as to Richard Allen, Grantt Culliver mailed by cmrrr. (cb, ) (Entered: 11/09/2006)
7 Return Receipt Card showing service of Summons and Complaint signed by Heron Pete, CO I for Grantt Culliver served on 11/13/2006, answer due 12/4/2006. Date of Delivery verified through United States Postal Service. (cb, ) (Entered: 11/17/2006)
8 Return Receipt Card showing service of Summons and Complaint signed by Kay P. Hope for Richard Allen served on 11/13/2006, answer due 12/4/2006. Date of Delivery verified through United States Postal Service. (cb, ) (Entered: 11/22/2006)
9 Defendants' Answer to Plaintiff's Complaint by Richard Allen, Grantt Culliver.(Davis, James) (Entered: 12/04/2006)
***Attorney James Clayton Crenshaw for Richard Allen and Grantt Culliver added pursuant to 9 Answer. (cb, ) (Entered: 12/05/2006)
10 ORDER that the Rule 26(f) report containing the discovery plan shall be filed as soon as practicable but not later than December 22, 2006. Signed by Judge Myron H. Thompson on 12/5/2006. (cb, ) (Entered: 12/05/2006)
11 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Proposed Agreed Confidentiality Order)(Mcdevitt, Heather) (Entered: 12/22/2006)
12 AGREED CONFIDENTIALITY ORDER as further set out. Signed by Judge Myron H. Thompson on 12/27/2006. (cb, ) (Entered: 12/27/2006)
Due to the retirement of Judge Delores R. Boyd this case has been

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01/08/2007
02/28/2007 03/01/2007
03/02/2007 03/05/2007 03/06/2007 03/06/2007 03/06/2007 03/06/2007

reassigned to Judge Terry F. Moorer as referral judge. (cc, ) (Entered: 01/05/2007)
13 SCHEDULING ORDER: Final Pretrial Conference set for 8/27/2007 before Honorable Myron H. Thompson. Non-Jury Trial set for trial during the term of court commencing on 10/1/2007 before Honorable Myron H. Thompson. Amended Pleadings due by 3/28/2007. Discovery due by 7/27/2007. Motions due by 5/29/2007. Mediation Notice due by 6/19/2007. Signed by Judge Myron H. Thompson on 1/8/2007. (cb, ) (Entered: 01/08/2007)
14 NOTICE by Richard Allen of Filing (Attachments: # 1 Appendix Corrected Order Setting Execution Date)(Crenshaw, James) (Entered: 02/28/2007)
15 ORDER directing that plf Jones file with this court, on or before 3/5/2007, at 9:00 am, notice indicating (1) whether he will seek a stay of execution and (2), if so, when he intends to file a motion for a stay with a supporting brief and evidentiary materials; further ORDERING that an on-the-record Status Conference is set for 3/6/2007 08:30 AM before Honorable Myron H. Thompson to discuss the notice; directing defendants to arrange for the conference to be conducted by telephone. Signed by Judge Myron H. Thompson on 3/1/07. Furnished to YG, HC, AG & SC.(djy, ) (Entered: 03/01/2007)
16 NOTICE by Aaron Lee Jones / Notice of Intent to File Motion for Stay of Execution (Mcdevitt, Heather) (Entered: 03/02/2007)
17 NOTICE of Appearance by James Roy Houts on behalf of all defendants (Houts, James) (Entered: 03/05/2007)
18 Minute Entry for Status Conference held before Judge Myron H. Thompson on 3/6/2007. (Court Reporter Mitchell Reisner.) (ag, ) (Entered: 03/06/2007)
19 Joint MOTION for Order Permitting Defendants' Disclosure of Protected Health Information Under HIPAA by Aaron Lee Jones. (Attachments: # 1 Text of Proposed Order # (2) Exhibit A# (3) Exhibit B# (4) Exhibit C) (Mcdevitt, Heather) Additional attachment(s) added on 3/7/2007 (cb, ). (Entered: 03/06/2007)
20 TRANSCRIPT of In Chambers Telephone Status Conference Proceedings (PDF available for court use only) held on 3/6/07 before Judge Myron H. Thompson. Court Reporter: Mitchell Reisner. (cb, ) (Entered: 03/06/2007)
21 ORDERED as follows: (1) The defendants are to produce all outstanding discovery materials to plaintiff by 5:00 p.m. on 3/9/07; (2) Plaintiff is allowed until 3/14/07, to file his motion for a stay of execution; and (3) The defendants are allowed until 3/21/07 to file their response. Signed by Judge Myron H. Thompson on 3/6/07. (cb, ) Additional attachment(s) added on 3/6/2007 (cb, ). (Entered: 03/06/2007)

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03/06/2007 03/08/2007 03/13/2007 03/13/2007 03/13/2007 03/14/2007 03/14/2007
03/14/2007
03/15/2007

22 NOTICE of Correction to attach the correct pdf to 21 Order. The original entry had the incorrect pdf attached. The corrected pdf is attached to this entry. (Attachments: # 1 Order)(cb, ) (Entered: 03/06/2007)
23 AGREED ORDER PERMITTING DEFENDANTS' DISCLOSURE OF PROTECTED HEALTH INFORMATION UNDER HIPPA as further set out. It is further ORDERED that 19 Joint Motion for order is granted as set forth in order. Signed by Judge Myron H. Thompson on 3/8/07. (cb, ) (Entered: 03/08/2007)
24 MOTION for Judgment on the Pleadings and Alternative Motion for Summary Judgment Regarding Statute of Limitations by Richard Allen. (Crenshaw, James) (Entered: 03/13/2007)
25 ORDER that MOTION for Judgment on the Pleadings and Alternative Motion for Summary Judgment 24 are set for submission, without oral argument on 3/27/2007, with any opposing brief and evidentiary materials due by said date. Signed by Judge Myron H. Thompson on 03/13/2007. (dph, ) Modified on 3/14/2007 to reflect as to 24(qc/djy, ). (Entered: 03/13/2007)
MOTION for Summary Judgment by Richard Allen, Grantt Culliver. No pdf attached to this entry. See 24 Motion for Judgment for pdf. (cb, ) (Entered: 04/17/2007)
26 MOTION to Stay of Execution by Aaron Lee Jones. (Fitzpatrick, Vincent) (Entered: 03/14/2007)
27 AFFIDAVIT re [26] MOTION to Stay of Execution / Declaration of Heather K. McDevitt in Support of Aaron Lee Jones' Motion for Stay of Execution by Aaron Lee Jones. (Attachments: # (1) Index of Documents# (2) Exhibit 1# (3) Exhibit 2# (4) Exhibit 3# (5) Exhibit 4# (6) Exhibit 5# (7) Exhibit 6# (8) Exhibit 7# (9) Exhibit 8# (10) Exhibit 9# (11) Exhibit 10# (12) Exhibit 11# (13) Exhibit 12# (14) Exhibit 13# (15) Exhibit 14# (16) Exhibit 15# (17) Exhibit 16# (18) Exhibit 17# (19) Exhibit 18# (20) Exhibit 19# (21) Exhibit 20# (22) Exhibit 21# (23) Exhibit 22# (24) Exhibit 23)(Fitzpatrick, Vincent) (Entered: 03/14/2007)
28 AFFIDAVIT re [26] MOTION to Stay of Execution / Declaration of Dr. Mark Heath by Aaron Lee Jones. (Attachments: # (1) Exhibit 1# (2) Exhibit 2# (3) Exhibit 3# (4) Exhibit 4# (5) Exhibit 5# (6) Exhibit 6# (7) Exhibit 7# (8) Exhibit 8# (9) Exhibit 9# (10) Exhibit 10# (11) Exhibit 11# (12) Exhibit 12# (13) Exhibit 13# (14) Exhibit 14# (15) Exhibit 15# (16) Exhibit 16# (17) Exhibit 17# (18) Exhibit 18# (19) Exhibit 19# (20) Exhibit 20# (21) Exhibit 21# (22) Exhibit 22# (23) Exhibit 23# (24) Exhibit 24# (25) Exhibit 25# (26) Exhibit 26# (27) Exhibit 27# (28) Exhibit 28# (29) Exhibit 29# (30) Exhibit 30# (31) Exhibit 31# (32) Exhibit 32)(Fitzpatrick, Vincent) (Entered: 03/14/2007)
29 Corrected TRANSCRIPT Proceedings of In Chambers Telephone Status Conference(PDF available for court use only) held on 3/6/07 before Judge Myron H. Thompson. Court Reporter: Mitchell Reisner. (cb, ) (Entered: 03/15/2007)

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03/16/2007 03/19/2007 03/19/2007 03/19/2007 03/19/2007
03/19/2007
03/20/2007 03/20/2007 03/20/2007 03/20/2007
03/20/2007

30 NOTICE by Richard Allen of Filing (Attachments: # 1 Exhibit A Alabama Supreme Court Order dated March 15, 2007)(Crenshaw, James) (Entered: 03/16/2007)
31 MOTION for Extension of Time to File Response/Reply as to [26] MOTION to Stay of Execution by Richard Allen. (Crenshaw, James) (Entered: 03/19/2007)
32 Plaintiff's Motion for Order to Show Cause by Aaron Lee Jones. (Attachments: # (1) Proposed Order)(cb, ) (Entered: 03/19/2007)
33 Certification of Heather K. McDevitt in Support of Plaintiff's [32] MOTION for Order to Show Cause by Aaron Lee Jones. (Attachments: # (1) Exhibit 1# (2) Exhibit 2# (3) Exhibit 3# (4) Exhibit 4# (5) Exhibit 5# (6) Exhibit 6)(cb, ) (Entered: 03/19/2007)
34 ORDERED that the defendants' 31 MOTION for Enlargement of Time to Respond is set for on-the-record argument on 3/20/2007, at 2:00 p.m. Counsel for defendants are to arrange for the argument to be conducted by telephone before Honorable Myron H. Thompson. It is further ORDERED that plaintiff Aaron Lee Jone is to file a response to the motion by 10:00 a.m. on 3/20/2007. Signed by Judge Myron H. Thompson on 3/19/2007. (cb, ) (Entered: 03/19/2007)
35 ORDER as follows: (1) The Defendants show cause in writing no later than 4:30 p.m. on Friday, 3/23/07, why certain documents listed on Defendants' privilege log should not be produced to the Plaintiff on an expedited basis; and (2) The Plaintiff's reply, if any, be filed no later than 4:30 p.m. on 3/26/07. Signed by Judge Terry F. Moorer on 3/19/2007. (cb, ) (Entered: 03/19/2007)
36 RESPONSE in Opposition 31 MOTION for Extension of Time to File Response as to [26] MOTION to Stay by Aaron Lee Jones. (Attachments: # (1) Exhibit 1)(cb, ) (Entered: 03/20/2007)
CROSS MOTION for Discovery Deadline of April 4, 2007 by Aaron Lee Jones. No pdf. attached to this entry. See [36] Response for pdf. (cb, ) (Entered: 03/20/2007)
MOTION to Compel by Aaron Lee Jones. No pdf attached to this entry. See [36] Response for pdf. (cb, ) (Entered: 03/20/2007)
37 ORDERED as follows: (1) The defendants' 31 Motion for Enlargement of Time to Respond is denied; and (2) Plaintiff's [36] Motion for a Discovery Deadline is GRANTED to the extent that the final deadline for discovery on all matters relating to the 5/3/2007 execution date (including Plf's [26] M/Stay & Dfts' 24 M/Judgment) is 3/27/07. All matters relating to what discovery material must be produced are referred to the magistrate judge. Signed by Judge Myron H. Thompson on 3/20/2007. (cb, ) (Entered: 03/20/2007)
38 AMENDED AGREED CONFIDENTIALITY ORDER as further set out. Signed by Judge Myron H. Thompson on 3/20/2007. (cb, ) (Entered:

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03/20/2007 03/20/2007 03/21/2007
03/21/2007
03/21/2007 03/22/2007 03/22/2007 03/23/2007 03/23/2007

03/20/2007)
39 MOTION to Compel by Aaron Lee Jones. (Attachments: # (1) Exhibit 1Opposition to M/Enlargement of Time# (2) Exhibit 2-Motion to Stay# (3) Exhibit 3-Copy of Fax to Heather McDevitt)(cb, ) (Entered: 03/20/2007)
40 Minute Entry for ORAL ARGUMENT held 3/20/2007 before Judge Myron H. Thompson re 31 motion for enlargment of time and motion for discovery and motion to compel (embedded in [36] response in opposition to motion for enlargement of time)(PDF available for court use only). (Court Reporter Mitchell Reisner.) (snc) (Entered: 03/20/2007)
41 ORDERED that Defendants show cause in writing no later than 4:30 p.m. on Wednesday, 3/21/07, why certain documents listed on Defendants' privilege log should not be produced to the Plaintiff on an expedited basis; (2) The Plaintiff's reply be filed no later than 4:30 p.m. on Thursday, 3/22/07; and (3) The Defendants' reply, if any, be filed no later than 4:30 p.m. on Friday. Show Cause Response due by 3/21/2007.Signed by Judge Terry F. Moorer on 3/21/2007. (cb, ) (Entered: 03/21/2007)
42 DEFENDANTS' RESPONSE TO PLAINTIFF'S [32] MOTION TO SHOW CAUSE AND CROSS MOTION FOR DISCOVERY re 41 ORDER TO SHOW CAUSE (Attachments: # (1) Exhibit A-Privilege Log# (2) Exhibit B-Declaration of Clay Crenshaw)(cb, ) Modified on 3/23/2007 to correct the link to the Motion to Show Cause(cb, ). (Entered: 03/21/2007)
43 Opposition to [26] MOTION for a Stay of Execution by Richard Allen. (Attachments: # (1) Affidavit Anne Adams# (2) Affidavit Grant Culliver# (3) Affidavit James Houts# (4) Exhibit 1# (5) Exhibit 2# (6) Exhibit 3# (7) Exhibit 4# (8) Exhibit 5# (9) Exhibit 6# (10) Exhibit 7# (11) Exhibit 8)(cc, ) (Entered: 03/21/2007)
44 TRANSCRIPT of Proceedings of In-Chambers Telephone Status Conference (PDF available for court use only) held on 3/20/2007 before Judge Myron H. Thompson. Court Reporter: Mitchell Reisner. (cb, ) (Entered: 03/22/2007)
45 Plaintiff's Reply to Defendants' [42] Response to Plaintiff's Motion to Show Cause and Cross Motion for Discovery (Attachments: # (1) Exhibit A# (2) Exhibit B# (3) Exhibit C# (4) Exhibit D# (5) Exhibit E# (6) Exhibit F)(cb, ) (Entered: 03/22/2007)
46 Defendants' Final RESPONSE to Plaintiff's [32] Motion to Show Cause and Cross Motion for Discovery filed by Richard Allen, Grantt Culliver. (cb, ) (Entered: 03/23/2007)
49 Minute Entry for proceedings held before Judge Terry F. Moorer : Oral Argument held on 3/23/2007 (Recording Time FTR: 11:08 - 11:44 am.) (sql, ) Additional attachment(s) added on 3/26/2007 (snc, ) (PDF available for court use only) (Entered: 03/23/2007)

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03/23/2007
03/23/2007
03/26/2007 03/26/2007 03/27/2007 03/27/2007 03/27/2007 03/27/2007
03/27/2007

47 ORDERED that Plaintiff's [32] Motion for An Order To Show Cause Why Defendants Should Not be Compelled to Produce Communications Listed on Defendants' Privilege Log On An Expedited Bais is denied in part, and granted in part. It is ORDERED that (1) The State release Documents 6-10 to Plaintiff by 9:00 a.m., 3/26/07; and (2) Documents 15 and 11-27 are protected from discovery under the attorney workproduct doctrine. Signed by Judge Terry F. Moorer on 3/23/07. (cb, ) (Entered: 03/23/2007)
48 ORDERED as follows : (1) Plaintiff's [39] Motion to Compel is denied in part and granted in part; Defendants' [42] Response to Plaintiff's Motion to Show Cause and Cross Motion for Discovery is denied in part and granted in part; and Plaintiff's [45] Reply to Defendants' Response to Plaintiff's Motion to Show Cause and Cross Motion for Discovery is denied in part and granted in part. Accordingly, it is ORDERED that (1) Defendants are to produce the documents requested by Plaintiff, as modified by this Order, no later than 3/27/07; (2) Defendants are to arrange for telephonic depositions of the execution team, which shall be completed no later than 3/27/07; and (3) Counsel for Plaintiff, or their designees, shall be permitted to inspect the execution chamber on 3/26/07, between the hours of 8:00 and 10:00 a.m.. Signed by Judge Terry F. Moorer on 3/23/2007. (cb, ) (Entered: 03/23/2007)
50 NOTICE by Richard Allen (Notice of Withdrawal) (Houts, James) (Entered: 03/26/2007)
Notice CONSTRUED AS MOTION to Withdraw James R. Houts as Attorney by Richard Allen, Grantt Culliver. No pdf attached to this entry. See 50 Notice for pdf. (cb, ) (Entered: 03/27/2007)
51 Defendants' Supplement in Opposition to Jones' [26] MOTION to Stay of Execution by Richard Allen, Grantt Culliver. (Attachments: # (1) Exhibit A-D)(cb, ) (Entered: 03/27/2007)
52 MOTION for Leave to File Reply Memorandum of Law in Support of [26] Motion for Stay of Execution by Aaron Lee Jones. (Attachments: # (1) Proposed Reply Memorandum in Support)(cb, ) (Entered: 03/27/2007)
53 MEMORANDUM of Law in Opposition to Defendants' 24 MOTION for Judgment on the Pleadings and Alternative Motion for Summary Judgment Regarding Statute of Limitations filed by Aaron Lee Jones. (cb, ) (Entered: 03/27/2007)
54 Declaration of Heather K. McDevitt in Support of Aaron Lee Jones [53] Memorandum of Law in Opposition to Defendants' 24 Motion for Judgment on The Pleadings and Alternative Motion for Summary Judgment Regarding Statute of Limitations by Aaron Lee Jones. (Attachments: # (1) Exhibit 1# (2) Exhibit 2# (3) Exhibit 3# (4) Exhibit 4# (5) Exhibit 5# (6) Exhibit 6# (7) Exhibit 7# (8) Exhibit 8# (9) Exhibit 9# (10) Exhibit 10)(cb, ) (Entered: 03/27/2007)
MOTION for Leave to File Defendants' Supplement in Oppositon to

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03/27/2007
03/28/2007 03/28/2007 03/28/2007 03/28/2007 03/28/2007 03/29/2007 03/29/2007

Jones's [26] Motion for Stay of Execution by Richard Allen, Grantt Culliver. No pdf attached to this entry. See [51] for pdf. ( (cb, ) (Entered: 03/28/2007)
63 USCA ORDER re 07-11287-P, IN RE: RICHARD F. ALLEN ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA; through a petition for writ of mandamus filed with the Court this date, Petitioner asks this Court to compel the District Court to vacate in part its March 23, 2007, order, in which the District Court directed Petitioner to arrange for the telephonic depositions of the members of the execution team. Said depositions are to be completed no later than March 27, 2007. Petitioner also asks this Court to stay that portion of the District Court's Order pending resolution of this petition. Petitioner's request is GRANTED to the extent that the depositions are hereby STAYED pending further order of this Court. Respondent is directed to file a response to this petition by 5:00 p.m. E.S.T. on March 28, 2007. The District Court is invited to file a response to this petition within the same time period. (ydw, ) Modified on 4/3/2007 TO VACATED PER 64 ORDER OF 4/3/07(ydw, ). (Entered: 03/30/2007)
55 ORDER granting [52] Motion for Leave to File a Reply Memorandum in Support of his [26] Motion for a Stay of Execution. Signed by Judge Myron H. Thompson on 3/28/2007. (cb, ) (Entered: 03/28/2007)
56 REPLY MEMORANDUM OF LAW in Support of [26] MOTION to Stay of Execution filed by Aaron Lee Jones. (cb, ) Modified on 3/28/2007 to reflect this PDF document was previously attached as Exhibit A proposed to Docket Entry [52] and docketed on the record pursuant to 55 order (djy, ). Additional attachment(s) added on 3/28/2007 (djy, ). (Entered: 03/28/2007)
57 ORDERED that the Defendants' Supplement in Opposition to Jones's [26] Motion for a Stay of Execution is treated as also a Motion for Leave to file such, and Motion for Leave is GRANTED. Signed by Judge Myron H. Thompson on 3/28/2007. (cb, ) (Entered: 03/28/2007)
58 ORDER granting 50 Motion to Withdraw James R. Housts as Attorney. Signed by Judge Myron H. Thompson on 3/28/2007. (cb, ) (Entered: 03/28/2007)
*** Attorney James Roy Houts terminated pursuant to 58 Order. (cb, ) (Entered: 03/28/2007)
59 Objection to Part of [48] Magistrate Judge's Order Requiring Depositions of Five Execution Team Members filed by Richard Allen, Grantt Culliver. (cb, ) (Entered: 03/29/2007)
60 ORDERED that plaintiff Aaron Lee Jones show cause, if any there be, in writing by 3/30/07 at 12:00 noon CST, as to why said objection should not be sustained. Signed by Judge Myron H. Thompson on 3/29/2007. (cb, ) (Entered: 03/29/2007)

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03/29/2007 04/03/2007
04/04/2007 04/04/2007
04/05/2007 04/05/2007 04/06/2007 04/09/2007

61 DEFENDANTS' NOTICE OF FILING by Richard Allen, Grantt Culliver (Attachments: # (1) Exhibit 1# (2) Exhibit 2# (3) Exhibit 3)(cb, ) (Entered: 03/29/2007)
64 USCA ORDER IN RE: RICHARD F. ALLEN On Petition for Writ of Mandamus to the United States District Court for the Middle District of Alabama; we hereby vacate our previous order staying the order of the magistrate judg in this case. This court was under the misapprehension that the order which is the subject of this petition for mandamus reflief was that of the district court. It appears that the discovery order entered by the magistrate judge was never subject to a motion for reconsideration pursuant to 28 U.S.C. 636 (b)(1)(A) and Fed.R.Civ.P. 72(a). In sum, the peitioner is asking us to direct the district court to vacate an order when the petitioner, although required by law, has not himself applied to the district court for relief in the first instance. Thus, the 23 March 2007 order is not a final, reviewable order of the district court, Accordingly, the petition for mandamus relief is dismissed. It is So Ordered. BEFORE: TJOFLAT, BIRCH and BLACK, Circuit Judges. BY THE COURT: (ydw, ) (Entered: 04/03/2007)
66 ORDER TO SHOW CAUSE as to why [65] Motion for Leave to File A Response to Defendants' Supplement in Opposition to Jones's Motion to Stay of Execution, should not be granted. Show Cause Response due by 4/5/2007 at 9:00 a.m. Central Daylight Time. Signed by Judge Myron H. Thompson on 4/4/2007. (cb, ) (Entered: 04/04/2007)
67 ORDERED as to preserve for appeal certain documents claimed as privileged by the defendants, and viewed by this court and the magistrate judge in camera, the clerk of the court is DIRECTED to scan such documents and place the scannedcopies under seal to be viewed only by this court or the court of appeals, unless either court orders otherwise. The documents now in the possession of the court are being returned to defense counsel. Signed by Judge Myron H. Thompson on 4/4/2007. (cb, ) (Entered: 04/04/2007)
69 ORDERED setting an on-the-record oral argument on 4/10/2007, at 10:00 A.M. as further set out. Counsel for plaintiff is to arrange for the argument to be conducted by telephone. Signed by Judge Myron H. Thompson on 4/5/2007. (cb, ) (Entered: 04/05/2007)
70 ORDER granting [65] Motion for Leave to File Response. Signed by Judge Myron H. Thompson on 4/5/2007. (cb, ) (Entered: 04/05/2007)
73 SEALED MOTION/REQUEST for an In Camera Inspection and Alternative Motion for an Order Precluding Disclosure of Plaintiff's Planned Questions of Certain Witnesses by Aaron Lee Jones. (cc, ) (Entered: 04/06/2007)
76 ORDERED that [73] Motion for In Camera Inspection and Alternative Motion for an Order are set for 4/10/2007 at 10:00 AM by telephone before Honorable Myron H. Thompson. Counsel for plaintiff Jones are to arrange for the argument to be conducted by telephone. Signed by Judge

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04/10/2007 04/10/2007 04/10/2007 04/11/2007 04/12/2007 04/16/2007
04/17/2007 04/17/2007 04/17/2007 04/17/2007

Myron H. Thompson on 4/9/2007. (cb, ) (Entered: 04/09/2007)
78 NOTICE of Correction entered to attached the corrected pdf to [77] Response to 69 Order in Regard to Possible Questions Upon Deposition Testimony. (cb, ) (Entered: 04/10/2007)
79 TRANSCRIPT of Proceedings of In-Chambers Telephone status conference (PDF available for court use only) held on March 23, 2007 before Judge Thompson. Court Reporter: Reisner. (djy, ) (Entered: 04/10/2007)
80 Minute Entry for Oral Argument re 24 Motion for Judgment, [26] Motion to Stay, [59] Defendant's Objection to Mag. Judge's Order and [73] Motion for In-Camera Inspection held before Judge Myron H. Thompson on 4/10/2007 (PDF available for court use only). (Court Reporter Mitchell Reisner.) (ag, ) (Entered: 04/10/2007)
81 ORDER by the court giving NOTICE to the parties that it hopes to have a decision in this case by Tuesday 4/17/2007, unless the parties are otherwise notified. Signed by Judge Myron H. Thompson on 4/11/07. (djy, ) (Entered: 04/11/2007)
82 TRANSCRIPT of Proceedings of In-Chambers Telephone Conference (PDF available for court use only) held on 4/10/2007 before Judge Myron H. Thompson. Court Reporter: Mitchell Reisner. (cb, ) (Entered: 04/12/2007)
83 MOTION for Leave to File / Plaintiff's Motion for Leave to File Supplemental Authority in Support of Plaintiff's Motion for Stay of Execution and in Opposition to Defendants' Motion for Judgment on the Pleadings and Alternative Motion for Summary Judgment Regarding Statute of Limitations by Aaron Lee Jones. (Attachments: # 1 Exhibit A) (Fitzpatrick, Vincent) (Entered: 04/16/2007)
84 ORDER granting 83 Motion for Leave to File a Supplemental Authority. Signed by Judge Myron H. Thompson on 4/17/2007. (cb, ) (Entered: 04/17/2007)
85 ORDERED that the defendants' Motion for Judgment on the Pleadings is denied, with the result that the court will consider their alternative Motion for Summary Judgment on the merits. Signed by Judge Myron H. Thompson on 4/17/2007. (cb, ) (Entered: 04/17/2007)
86 OPINION that the defendants' 24 Motion for Summary Judgment and Jones's [26] Motion for Stay of Execution are both denied. An appropriate judgment will be entered. Signed by Judge Myron H. Thompson on 4/17/2007. (cb, ) (Entered: 04/17/2007)
87 FINAL JUDGMENT as follows: (1) Defendants Richard Allen and Grantt Culliver's 24 Motion for Summary Judgment is denied; and (2) Plaintiff Aaron Lee Jone's [26] Motion for Stay of Execution is denied. The clerk of the court is directed to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the FRCP. Signed by

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04/17/2007 04/18/2007
04/18/2007 04/19/2007 04/19/2007 04/20/2007 04/20/2007 04/23/2007 04/23/2007 04/23/2007 05/22/2007

Judge Myron H. Thompson on 4/17/2007. (Attachments: # 1 Civil Appeals Checklist)(cb, ) (Entered: 04/17/2007)
88 ORDERED that the defendants' [59] Objection to the part of the Magistrate Judge's March 23 order requiring certain depositions is overruled as moot. Signed by Judge Myron H. Thompson on 4/17/2007. (cb, ) (Entered: 04/17/2007)
89 RESPONSE in Support re [26] MOTION to Stay of Execution / Plaintiff's Supplemental Authority in Support of Plaintiff's Motion for Stay of Execution and in Opposition to Defendants' Motion for Judgment on the Pleadings and Alternative Motion for Summary Judgment Regarding Statute of Limitations by Aaron Lee Jones. (Attachments: # 1 Exhibit A)(Fitzpatrick, Vincent) (Entered: 04/18/2007)
RESPONSE in Opposition to Defendants' 24 MOTION for Judgment on the Pleadings and Alternative Motion for Summary Judgment Regarding Statute of Limitations filed by Aaron Lee Jones. No pdf attached to this entry. See 89 Response in Support for pdf. (cb, ) (Entered: 04/19/2007)
90 MOTION to Alter Judgment 87 Judgment, / Plaintiff's Motion to Alter or Amend Judgment by Aaron Lee Jones. (Fitzpatrick, Vincent) (Entered: 04/19/2007)
91 ORDERED that the defendant show cause, if any there be, in writing by 4/20/07, at 2:00 p.m. as to why said motion should not be granted. Signed by Judge Myron H. Thompson on 4/19/2007. (cb, ) (Entered: 04/19/2007)
92 Objection to re 90 MOTION to Alter Judgment 87 Judgment, / Plaintiff's Motion to Alter or Amend Judgment filed by Richard Allen. (Crenshaw, James) (Entered: 04/20/2007)
93 ORDERED that 90 Motion to Alter or Amend Judgment is granted to the extent that clarification is made and is denied in all other respects as further set out. Signed by Judge Myron H. Thompson on 4/20/2007. (cb, ) (Entered: 04/20/2007)
94 NOTICE OF APPEAL by Aaron Lee Jones to the United States Court of Appeal for the Eleventh Circuit from the 86 Memorandum Opinion and Order, 87 Judgment, entered on 4/17/07. Copies mailed (ydw, ) (Entered: 04/23/2007)
USCA Appeal Fees received $ 455 receipt number 113808 re 94 Notice of Appeal filed by Aaron Lee Jones (ydw, ) (Entered: 04/23/2007)
Transmission of Notice of Appeal and Certified copy of Docket Sheet and Order to US Court of Appeals re 94 Notice of Appeal (ydw, ) (Entered: 04/23/2007)
95 ORDER denying [73] Request for an In Camera Inspection and Alternative Motion for Order precluding disclosure are denied as moot. Signed by Judge Myron H. Thompson on 5/22/2007. (cb, ) (Entered: 05/22/2007)

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96 ORDERED that the parties show cause, if any there be, in writing by June 1, 2007, as to why this cause should not be dismissed. Signed by Judge Myron H. Thompson on 5/22/2007. (cb, ) (Entered: 05/22/2007)
97 FINAL JUDGMENT that this case is dismissed. The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. Signed by Judge Myron H. Thompson on 6/5/2007. (Attachments: # 1 Civil Appeals Checklist)(cb, ) (Entered: 06/05/2007)

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