IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

WILLIE MCNAIR *

Plaintiff *

*

v. *

*

RICHARD ALLEN, Commissioner *

Alabama Department of *

Corrections; * No. 2:06-cv-695-WKW

*

GRANTT CULLIVER, Warden, *

Holman Correctional Facility; and *

*

OTHER UNKNOWN EMPLOYEES *

AND AGENTS, Alabama *

 Department of Corrections, *

Individually, and in their official *

capacities. *

Defendants.

PLAINTIFF/COUNTER-DEFENDANT’S

ANSWER TO COUNTERCLAIMS

Plaintiff/Counter-Defendant Willie McNair states as follows in answer to the

counterclaim for declaratoryjudgment alleged in the Defendants/Counter-Plaintiffs’s

Answer:

Response to Numbered Paragraphs

1. Admitted.

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

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are seeking an order declaring that their lethal injection protocol is constitutional, but

denies any remaining allegation in paragraph 2 of the Counterclaim.

3. Admitted.

4. Plaintiff/Counter-Defendant admits that James Callahan is on death row

and that Defendants/Counter-Plaintiffs have filed a motion to join him as a CounterDefendant.

5. Admitted.

6. Admitted.

7. Admitted.

8. Admitted.

9. Admitted.

10. Admitted.

11. Plaintiff/Counter-Defendant admits that he was convicted of capital

murder and sentenced to death, but denies that he was duly convicted and duly

sentenced.

12. Plaintiff/Counter-Defendant cannot admit or deny the allegation in

paragraph 12 of the Counterclaim. See Defendants’ Answer p. 7.

13. Admitted.

14. Admitted

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15. Plaintiff/Counter-Defendant admits that the State has an interest in

finality but denies that such interest is more important than determining the

constitutionality of state court convictions, sentences, and methods of carrying out

sentences.

16. Denied.

17. Denied. 

18. Denied.

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

considering whether lethal injection protocols are constitutional, but denies the first

sentenced of paragraph 19 of the Counterclaim.

20. Plaintiff/Counter-Defendant admits that he was convicted of capital

murder.

21. Admitted.

22. Admitted.

23. Admitted.

24. Plaintiff/Counter-Defendant admits that James Callahan was convicted

of capital murder.

25. Admitted.

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

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consistent with the allegations in paragraph 26 of the Counterclaim.

27. Admitted.

28. Admitted.

29. Admitted.

Count I

30. Admitted.

31. Plaintiff/Counter-Defendant admits that Willie McNair and James

Callahan are on death row but deny that James Callahan is currently a Counterdefendant.

32. Admitted.

33. Plaintiff/Counter-Defendant denies the allegation about his interest.

34. Denied. 

35. Denied.

Count II

36. Admitted.

37. Plaintiff/Counter-Defendant admits that Willie McNair and James

Callahan are on death row but deny that James Callahan is currently a CounterDefendant.

38. Admitted.

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39. Plaintiff/Counter-Defendant denies the allegation about his interest.

40. Denied. 

41. Denied.

Additional Defenses

1. Defendants/Counter-Plaintiffs have failed to state a claimonwhich relief

could be granted.

2. Defendants/Counter-Plaintiffs’s claims are barred by waiver and

estoppel.

3. Defendants/Counter-Plaintiffs’s claims are barred by unclean hands.

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

is unmerited because, as alleged in the original complaint against Defendants,

Alabama’s manner and method of execution does in fact subject death-sentenced

prisoners to a risk of an excruciating 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 original

complaint.

5. With respect to the Defendants/Counter-Plaintiffs’s Motion to Join

Additional Defendant in Counterclaim, the Defendants declined to divulge the

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execution protocol when requested by Plaintiff and, in the absence of such

information, Plaintiff/Counter- Defendant is unable to make any informed response

as to whether joinder of James Harvey Callahan as an additional defendant is

appropriate. There is no way to determine at this point whether there is any risk of

impairment to either Counter-Defendant’s rights by proceeding jointly or

independently. 

Respectfully submitted,

s/Randall S. Susskind

Randall Susskind (SUS002)

s/Cathleen I. Price

Cathleen I. Price (PRI056)

Equal Justice Initiative of Alabama

122 Commerce St.

Montgomery, AL 36104

(334) 269-1803

rsusskind@eji.org

cprice@eji.org

Counsel for Willie McNair

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CERTIFICATE OF SERVICE

I certify that on October 19, 2006, I electronically filed the foregoing 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/ Randall S. Susskind

Randall S. Susskind (SUS002)

Equal Justice Initiative of Alabama

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

(334) 269-1806

rsusskind@eji.org

Counsel for Willie McNair

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