IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

WILLIE MCNAIR, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 2:06-cv-695-WKW-CSC 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants. ) 

________________________________ 

JAMES CALLAHAN, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 2:06-cv-919-WKW-CSC 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants. ) 

DEFENDANTS’ OBJECTION TO MAGISTRATE JUDGE’S ORDER 

FILED ON AUGUST 23, 2007 

 The defendants hereby object to the Magistrate Judge’s Order, see Doc. 86, 

that was entered on August 23, 2007. This objection is filed pursuant to 28 U.S.C. 

§ 636(b)(1)(A) and Fed. R. Civ. P. 72(a). 

 The defendants filed a motion to compel the plaintiffs “to explain what 

changes must be made to Alabama’s execution protocol in order to meet 

constitutional standards.” Doc. 78 at 1. The plaintiffs filed an objection to this 

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request, see Doc. 83, and the Magistrate Judge entered an order denying the 

defendants’ motion, see Doc. 86. The Magistrate Judge reasoned, among other 

things, that the defendants’ motion was premature in that “the question of how to 

fix lethal injection protocols is not relevant until the plaintiff proves that the 

protocols are broken.” Doc. 86 at 4. 

 The defendants hereby object to the Magistrate Judge’s order and 

incorporate by reference their motion to compel responses to interrogatories. See 

Doc. 78. Defendants note that the standard at issue is whether the request is 

reasonably calculated to lead to the discovery of admissible evidence. The 

requests at issue meet this standard. For example, if plaintiffs claim that Alabama 

uses the wrong chemicals in lethal injections, the defendants can better defend 

themselves against that claim (and the Court can better assess that claim) by 

comparing the chemicals to those that plaintiffs believe should be used instead. 

And if the only procedures that plaintiffs would agree to be constitutional are so 

onerous that no State could possibly adopt them, that would tend to show that 

plaintiffs’ real purpose is to block their execution, and this would support 

defendants’ argument that the claim is in essence an improper successive habeas 

petition. 

 In addition, the defendants note that the plaintiffs’ failure to suggest an 

alteration to Alabama’s execution procedures, after asserting that there is such an 

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alternative method, turns the lethal-injection claim into a challenge against the 

sentence, a claim which sounds in habeas. See Hill v. McDonough, 126 S. Ct. 

2096, 2101 (2006). The Supreme Court there ruled that “a constitutional challenge 

seeking to permanently enjoin the use of lethal injection may amount to a 

challenge to the fact of the sentence itself.” Hill, 126 S. Ct. at 2101 (quoting 

Nelson v. Campbell, 541 U.S. 637, 644, 124 S. Ct. 2117 (2004)). The failure to 

suggest an alternative method, after asserting that there is one, “leaves little doubt 

that the real purpose behind his claim is to seek a delay of his execution, not 

merely to effect an alteration of the manner in which it is carried out.” Jones v. 

Allen, 485 F.3d 635, 640 (11th Cir. 2007). 

 For the foregoing reasons, the defendants respectfully object to the 

Magistrate Judge’s order filed on August 23, 2007. 

Respectfully submitted, 

Troy King 

Attorney General 

 

 

/s/ J. Clayton Crenshaw 

J. Clayton Crenshaw (CRE007) 

Assistant Attorney General 

/s/ James W. Davis 

James W. Davis (DAV103)

Assistant Attorney General 

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CERTIFICATE OF SERVICE 

I hereby certify that on August 30, 2007, I electronically filed the foregoing 

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

such filing to the following: Stephanie L. Cohen, Vincent R. Fitzpatrick, Jr., 

Heather K. McDevitt, Randall Susskind, and Cathleen Price.

 

 /s/ J. Clayton Crenshaw 

 J. Clayton Crenshaw 

 Assistant Attorney General 

ADDRESS OF COUNSEL: 

Office of the Attorney General 

Capital Litigation Division 

Alabama State House 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 Office 

(334) 353-3637 

ccrenshaw@ago.state.al.us

jimdavis@ago.state.al.us

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