IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

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. ) 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 

 Defendants Richard Allen, Commissioner, and Grantt

Culliver, Warden, move for summary judgment pursuant to 

Rule 56 of the Federal Rules of Civil Procedure on grounds 

that there is no genuine issue of material fact and the 

defendants are entitled to a judgment as a matter of law. 

In support of this motion, defendants rely on the Eleventh 

Circuit’s recent decision in McNair v. Allen, __ F.3d __, 

2008 WL 227945 (11th Cir. Jan. 29, 2008), that applied for 

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the first time a statute of limitations to lethal-injection 

claims such as the one raised by McNair. In support, the 

defendants state the following grounds. 

 McNair’s complaint is barred by the statute of 

limitations. Recently in McNair v. Allen, __ F.3d __, 2008 

WL 227945, *4 (11th Cir. Jan. 29, 2008), this Court held, 

as a matter of first impression, that a method of execution 

claim accrues on the later of the date on which direct 

appellate review is complete, or the date on which the 

capital litigant becomes subjected to a new or 

substantially changed execution protocol. Pursuant to 

McNair, the statute of limitations on McNair’s § 1983 

complaint challenging the constitutionality of Alabama’s 

lethal injection protocol expired in 2004, two years after 

the State of Alabama changed its method of execution to 

lethal injection. 

 All constitutional claims brought under § 1983 are tort 

actions, subject to the statute of limitations governing 

personal injury actions in the state where the § 1983 

action is brought. Wilson v. Garcia, 471 U.S., 261, 275-

76, 105 S.Ct. 1938, 1946-47 (1985). McNair’s claim was 

brought in Alabama, where the governing limitations period 

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is two years. Ala. Code § 6-2-38; Jones v. Preuit & 

Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (en banc). 

Therefore, in order to have his claim heard, McNair was 

required to bring the claim within two years from the date 

the limitations period began to run. 

 The Eleventh Circuit has long held that in § 1983 

actions “the statute of limitations does not begin to run 

until the facts which would support a cause of action are 

apparent or should be apparent to a person with a 

reasonably prudent regard for his rights.” Mullinax v. 

McElhenney, 817 F.2d 711, 716 (11th Cir. 1987). In Corn v. 

City of Lauderdale Lakes, 904 F.2d 858, 588 (11th Cir. 

1990), the Court held that it is well established that a 

federal claim accrues when the prospective plaintiff “knows 

or has reason to know of the injury which is the basis of 

the action.” In applying these principles to method of 

execution claims under § 1983, McNair put to rest the 

question of when a prospective plaintiff knows or has 

reason to know of the injury, holding that the claim 

accrues on the later of the date on which the state review 

is complete or the date on which the capital litigant 

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became subject to new or substantially changed execution 

protocol. McNair, 2008 WL 227945, at 4. 

 McNair’s direct appeal review concluded in 1995, when 

the United States Supreme Court denied McNair’s petition for 

writ of certiorari. McNair v. Alabama, 513 U.S. 1159, 115 

S.Ct. 1121 (1995). Thus, pursuant to McNair, McNair would 

have been required to file his § 1983 claim prior to 1997, 

except that the State made a significant change to its 

method of execution in July 2002. As the Court recognized 

in Jones v. Allen, 485 F.3d 635, 640 (11th Cir. Apr. 27, 

2007), the Alabama legislature changed the State’s default 

method of execution from electrocution to lethal injection 

in July 2002. Jones, 485 F.3d at 637. When the method of 

execution changed, death row inmates, including McNair, were 

given 30 days in which to choose electrocution as the means 

by which they would prefer to be executed. Ala. Code § 15-

18-82.1(2007 Cumulative Supplement). Any inmate who had not 

selected electrocution by that time would be subject to 

death by lethal injection. Id. By failing to choose 

electrocution by July 31, 2002, McNair’s default method of 

execution became lethal injection. Thus, McNair was free to 

challenge the method of his execution beginning July 31, 

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2002, by which time the facts which would support a cause of 

action should have been apparent to any person with a 

reasonably prudent regard for his rights. Mullinax, 817 

F.2d at 716. The statute of limitations began to run at 

that time; therefore, absent a significant change in the 

state’s execution protocol (which did not occur in this 

case),1 McNair was required to file his Eighth Amendment 

challenge by July 31, 2004. 

 However, McNair tarried, without justification and

without excuse, until August 7, 2006, the day that the 

United States Supreme Court denied his petition for

certiorari in his habeas review and approximately five 

years after July 2002 when Alabama adopted lethal injection 

as the method of execution before bringing his claim 

challenging the constitutionality of Alabama’s lethal 

injection protocols. Thus, pursuant to McNair, McNair’s § 

1983 complaint challenging the constitutionality of

Alabama’s lethal injection protocols is barred because the 

statute of limitations expired in 2004, two years after the 

 

1 Pursuant to McNair, the revision of the consciousness assessment in 2007 did 

not result in a “significant” change in Alabama’s lethal injection protocol. 

2008 WL 227945, *8 (11th Cir. Jan. 29, 2008). 

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State of Alabama changed its method of execution to lethal 

injection. 

 Accordingly, there is no genuine issue as to any 

material fact because the defendants are entitled to a 

judgment as a matter of law. Fed. R. Civ. P. 56(c). 

CONCLUSION 

 For the forgoing reasons, the State respectfully 

requests that this Court grant its motion for summary 

judgment. 

 Respectfully submitted, 

 Troy King 

 Alabama Attorney General 

 s/ J. Clayton Crenshaw 

J. Clayton Crenshaw (CRE007)

James W. Davis (DAV103) 

Jasper Roberts (ROB157)

Corey L. Maze (MAZ003) 

Assistant Attorneys General 

OF COUNSEL: 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 

(334) 353-8440 Fax 

Email:ccrenshaw@ago.state.al.us 

jimdavis@ago.state.al.us 

jroberts@ago.state.al.us

 cmaze@ago.state.al.us

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CERTIFICATE OF SERVICE

This is to certify that on the 22nd day of February, 

2008, 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: Randall S. Susskind, Cathleen I. Price, Vincent 

R. Fitzpatrick, Jr., Heather K. McDevitt, and Stephanie 

Cohen.

 s/ J. Clayton Crenshaw 

 J. Clayton Crenshaw 

 Assistant Attorney General 

ADDRESS OF COUNSEL: 

Office of the Attorney General 

Alabama State House 

11 South Union Street 

Montgomery, AL 36130 

Telephone: 334.242.7300 

Fax: 334.353.3637 

Email: ccrenshaw@ago.state.al.us

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