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 IN THE UNITED STATES DISTRICT COURT 

 MIDDLE DISTRICT OF ALABAMA 

WILLIE MCNAIR * 

 * 

Plaintiff/Counter-Defendant * 

 * 

v. * No. 2:06-cv-695-WKW 

 * 

RICHARD ALLEN, et al., * 

 * 

Defendants/Counter-Plaintiffs * 

________________________________ 

JAMES CALLAHAN * 

 * 

Plaintiff/Counter-Defendant * 

 * 

v. * No. 2:06-cv-919-WKW 

 * 

RICHARD ALLEN, et al., * 

 * 

Defendants/Counter-Plaintiffs * 

PLAINTIFF/COUNTER-DEFENDANT WILLIE MCNAIR’S

 REPLY TO AMENDED ANSWER AND COUNTERCLAIM

 

 Plaintiff Willie McNair states as follows in reply to the counterclaim (the 

“Counterclaim”) set forth in Defendants’ Amended Answer and Counterclaim, 

dated December 21, 2006: 

 Response to Numbered Paragraphs

 1. The allegations set forth in paragraph 1 of the Counterclaim are legal 

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conclusions to which no response is required, although Plaintiff/CounterDefendant admits that Defendants/Counter-Plaintiffs purport to bring a declaratory 

judgment action pursuant to the referenced authority. 

 2. Plaintiff/Counter-Defendant admits that Defendants/Counter-Plaintiffs 

seek an order declaring that the protocol for capital punishment by lethal injection 

in Alabama entails no constitutional violations, but denies all remaining allegations 

in paragraph 2 of the Counterclaim. 

 3. Admitted. 

 4. Admitted. 

 5. Admitted. 

 6. Admitted. 

 7. Admitted. 

 8. Admitted. 

 9. Admitted. 

 10. Plaintiff/Counter-Defendant denies the allegations in paragraph 10 of 

the Counterclaim except admits that Plaintiff/Counter-Defendant was convicted of 

capital crimes in the State Courts of Alabama, has been sentenced to death and has 

been issued certificates of judgment. 

 11. Plaintiff/Counter-Defendant denies knowledge or information 

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sufficient to form a belief as to the truth of the allegations in paragraph 11 of the 

Counterclaim. 

 12. Plaintiff/Counter-Defendant admits that the United States Supreme 

Court issued a decision styled Hill v. McDonough, __ U.S. __, 2006 WL 1584710, 

at *1-9 (June 12, 2006), refers to that decision for its holdings, denies the 

allegations in paragraph 12 of the Counterclaim to the extent that they are 

inconsistent with that decision, and admits that he has brought a civil rights action 

under Title 42 U.S.C. § 1983. 

 13. Plaintiff/Counter-Defendant denies the allegations in paragraph 13 of 

the Counterclaim to the extent that they are inconsistent with Hill and refers to that 

decision for its holdings. 

 14. Plaintiff/Counter-Defendant denies the allegations in paragraph 14 of 

the Counterclaim to the extent that they are inconsistent with the court decisions 

cited therein and refers to those decisions for their holdings. 

 15. Plaintiff/Counter-Defendant denies the allegations in paragraph 15 of 

the Counterclaim except admits that he has filed a § 1983 claim challenging the 

manner of lethal injection in Alabama. 

 16. Denied. 

 17. Plaintiff/Counter-Defendant denies the allegations in paragraph 17 of 

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the Counterclaim except admits that the constitutionality of Alabama’s protocol for 

execution by lethal injection should be resolved by the courts. 

 18. Plaintiff/Counter-Defendant admits that courts around the country are 

considering the propriety of lethal injection protocols, but denies all other 

allegations in paragraph 18 of the Counterclaim. 

 19. Plaintiff/Counter-Defendant admits that courts have made findings 

consistent with the allegations in paragraph 19 of the Counterclaim. 

 20. Plaintiff/Counter-Defendant admits that courts have made findings 

consistent with the allegations in paragraph 20 of the Counterclaim. 

 21. Admitted. 

 22. Admitted. 

Count I

 23. Admitted. 

 24. Admitted. 

 25. Admitted. 

 26. Plaintiff/Counter-Defendant denies the allegations in paragraph 26 of 

the Counterclaim except admits that there is a real, justiciable case or controversy 

between the parties and that Defendants/Counter-Plaintiffs purport that Alabama’s 

method of carrying out lethal injection is constitutional in every respect. 

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 27. Denied. 

 28. Plaintiff/Counter-Defendant denies the allegations in paragraph 28 of 

the Counterclaim except admits that the constitutionality of Alabama’s protocol for 

execution by lethal injection should be resolved by the courts. 

Count II

 29. Admitted. 

 30. Admitted. 

 31. Admitted. 

 32. Plaintiff/Counter-Defendant denies the allegations in paragraph 26 of 

the Counterclaim except admits that there is a real, justiciable case or controversy 

between the parties and that Defendants/Counter-Plaintiffs purport that Alabama’s 

method of carrying out lethal injection is constitutional in every respect. 

 33. Denied. 

 34. Plaintiff/Counter-Defendant denies the allegations in paragraph 28 of 

the Counterclaim except admits that the constitutionality of Alabama’s protocol for 

execution by lethal injection should be resolved by the courts. 

Additional Defenses

 1. Defendants/Counter-Plaintiffs have failed to state a claim on which 

relief can be granted. 

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 2. Defendants/Counter-Plaintiffs’ Counterclaims are barred by waiver 

and estoppel. 

 3. Defendant/Counter-Plaintiffs’ Counterclaims are barred by the 

doctrine of unclean hands. 

 4. Plaintiff/Counter-Defendant reserves the right to seek leave to amend 

its Reply to Amended Answer and Counterclaim and to assert any other defense or 

affirmative defense that may arise as the action progresses. 

 5. The declaratory judgment sought by the Defendants/Counter-Plaintiffs 

is unmerited because, as alleged in the Complaint against Defendants, Alabama’s 

manner and method of execution does in fact subject death-sentenced prisoners to 

a risk of an excruciatingly painful and improperly anesthetized death. In fact, 

Alabama executes its citizens by methods considered too cruel to use on dogs by 

the American Veterinary Medical Association. Plaintiff/Counter-Defendant 

hereby incorporates by reference all of the facts and arguments alleged in the 

Complaint. 

 WHEREFORE, Plaintiff/Counter-Defendant Willie McNair respectfully 

requests judgment as follows: 

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(a) dismissing Defendants/Counter-Plaintiffs’ Counterclaim; and 

(b) granting the relief requested in Plaintiff/Counter-Defendant’s 

Complaint dated August 7, 2006; and 

(c) granting such other and further relief as the Court deems just and 

proper. 

Dated: January 5, 2007 

 Respectfully submitted, 

 

 /s Heather K. McDevitt____ 

 Vincent R. FitzPatrick, Jr. 

 Heather K. McDevitt 

 Stephanie Cohen 

 Bar Numbers (SDNY): 

 VF2907; HM9973; SM7006 

 White & Case LLP 

 1155 Avenue of the Americas 

 New York, NY 10036 

 Telephone: (212) 819-8200 

 Facsimile: (212) 354-8113 

 vfitzpatrick@whitecase.com

 hmcdevitt@whitecase.com

 stephcohen@whitecase.com 

 - and - 

 Randall S. Susskind (SUS002) 

 Cathleen I. Price (PRI056) 

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 Equal Justice Initiative of Alabama 

 122 Commerce St. 

 Montgomery, AL 36104 

 Telephone: (334) 269-1803 

 Facsimile: (334) 269-1806 

 rsusskind@eji.org

 cprice@eji.org 

 

 Counsel for Willie McNair 

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 CERTIFICATE OF SERVICE

 

 I certify that on January 5, 2007, a copy of the foregoing was filed 

electronically with the Clerk of the Court using the CM/ECF system which will 

send notification of such filing to the following: J. Clayton Crenshaw and James 

W. Davis. 

 s/ Stephanie Cohen

 Stephanie Cohen 

 Bar Number (SDNY): 

 SM7006 

 White & Case LLP 

 1155 Avenue of the Americas 

 New York, NY 10036 

 Telephone: (212) 819-8200 

 Facsimile: (212) 354-8113 

 stephcohen@whitecase.com 

 

 Counsel for Willie McNair

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