IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

WILLIE MCNAIR, ) 

 ) 

 Plaintiff/Counter-Defendant, ) 

 ) 

v. ) No. 2:06-cv-00695-WKW-CSC 

 ) 

RICHARD ALLEN, Commissioner, ) 

Alabama Deparment of ) 

Corrections, et al., ) 

 ) 

 Defendants/Counter-Plaintiffs. ) 

__________________________________ 

JAMES CALLAHAN, ) 

 ) 

 Plaintiff/Counter-Defendant, ) 

 ) 

v. ) No. 2:06-cv-00919-WKW-CSC 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants/Counter-Plaintiffs. ) 

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 plaintiffs, Willie McNair and James Callahan. 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 

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

Cir. Mar. 2, 2007), the complaints of McNair and Callahan should be dismissed 

because they were untimely filed under the relevant limitations period. 

I. Background 

 McNair filed a complaint under 42 U.S.C. § 1983 alleging that lethal 

injection, as presently administered, is unconstitutional under the Eighth and 

Fourteenth Amendments. The complaint was filed on August 7, 2006, four months 

after McNair’s federal collateral appeal of his capital murder conviction and death 

sentence concluded. See McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005), 

cert. denied, McNair v. Allen, 126 S.Ct. 1828 (Apr. 17, 2006). 

 Callahan filed a complaint under 42 U.S.C. § 1983 alleging that lethal 

injection, as presently administered, is unconstitutional under the Eighth and 

Fourteenth Amendments. The complaint was filed on October 12, 2006, several 

days after Callahan’s federal collateral appeal of his capital murder conviction and 

death sentence concluded. See Callahan v. Campbell, 427 F.3d 897 (11th Cir. 

2005), cert. denied, Callahan v. Allen, 127 S.Ct. 427 (Oct. 10, 2006). 

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 Neither complaint contains any statements regarding why McNair and 

Callahan waited to file their § 1983 lawsuit until their federal habeas challenge 

came to conclusion. The complaints do not contain language that indicates that 

McNair or Callahan are relying on newly discovered information or evidence. In 

fact, the complaints appear (with respect) to be "cookie-cutter" pleadings that could 

have been filed years before. They do not mention the eleven individuals who 

have been executed by lethal injection in Alabama, nor do they contain any 

allegations regarding those executions. 

II. THE STATUTE OF LIMITATIONS RELATING TO MCNAIR’S

AND CALLAHAN’S 1983 COMPLAINTS 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 McNair’s and Callahan’s 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 

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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, McNair’s 

and Callahan’s cause of action accrued when Alabama on July 1, 2002, changed its 

method of execution to lethal 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, McNair’s and Callahan’s complaints, which were filed in 

2006, were 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 

 

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 § 1983 method-of-execution challenge accrues for statute of 

limitations purposes. 

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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 

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, McNair’s and Callahan’s 

lawsuit should be dismissed because they were filed after the statute of limitations 

had expired. There are two triggering dates that this Court may use in determining 

when McNair’s and Callahan’s cause of action accrued. The first is when 

Alabama changed its method of execution to lethal injection, which became 

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effective on July 1, 2002. See Ala. Code § 15-18-82.1 (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 McNair and 

Callahan had an opportunity to affirmatively choose electrocution. See Ala. Code 

§ 15-18-82.1 (2006 Cumulative Supplement)("The election for death by 

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."). McNair and Callahan knew on July 31, 2002, when they 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. 

 

2 Because McNair’s direct review ended on April 17, 1995, when the United States Supreme 

Court denied certiorari review, see McNair v. Alabama, 513 U.S. 1159, 115 S.Ct. 1121 (1995), 

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. Likewise, because Callahan’s direct review ended on 

October 1, 1990, when the United States Supreme Court denied certiorari review, see Callahan v. 

Alabama, 498 U.S. 881, 111 S.Ct. 216 (1990), that date is not available as a possible accrual date 

because Alabama at time did not use lethal injection as a method of execution. 

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 Under either triggering date, McNair and Callahan filed their complaint too 

late. On the authority of Cooey, McNair’s and Callahan’s complaint should be 

dismissed on statute-of-limitations grounds.3 

 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 

 

 

3 The Defendants have asserted counter-claims against the Plaintiffs asking that this Court enter 

an order declaring that Alabama’s method of execution does not violate the Plaintiffs’ 

constitutional rights. If this Court agrees with the arguments asserted in this motion (that is, that

Plaintiffs’ claims are due to be dismissed because they are time-barred), then Defendants 

concede that their counter-claims are due to be dismissed as well. 

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CERTIFICATE OF SERVICE 

This is to certify that on the 14th day of March, 2007, a copy of the 

foregoing has been electronically filed with the Clerk of the Court using the 

CM/ECF system, which will electronically send a copy of the same to the 

following: Stephanie L. Cohen, Vincent R. Fitzpatrick, Jr., and Heather K. 

McDevitt.

/s/ J. CLAYTON CRENSHAW 

J. CLAYTON CRENSHAW 

ASSISTANT ATTORNEY GENERAL 

OF COUNSEL: 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7423 Office 

(334) 353-3637 Fax 

ccrenshaw@ago.state.al.us 

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