FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 19, 2011

JOHN LEY

CLERK

[PUBLISH]

 IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-12238 

 ________________________

 D.C. Docket No. 2:11-cv-00376-WKW

EDDIE D. POWELL,

llllllllllllllllllllllllllllllllllllllll Plaintiff,

JASON ORIC WILLIAMS, 

llllllllllllllllllllllllllllllllllllllll Intervenor Plaintiff - Appellant,

 versus

KIM THOMAS, 

Interim Commissioner, Alabama

Department of Corrections,

individually and in his official capacity,

ANTHONY PATTERSON, 

Warden, Holman Correctional Facility,

individually and in his official capacity,

llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.

________________________

 Appeal from the United States District Court

 for the Middle District of Alabama

 ________________________

(May 19, 2011)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.

PER CURIAM:

Jason Williams is currently on death row in Alabama. He is scheduled to 1

be executed at 6:00 p.m. on Thursday, May 19, 2011. In late April, the Alabama

Department of Corrections (“ADOC”) announced plans to alter its lethal injection

protocol for Williams’s execution. Specifically, it would be replacing the first

drug in its lethal injection protocol—sodium thiopental—with another

anesthetic—pentobarbital. That decision resulted from a heavily publicized,

nationwide shortage of sodium thiopental. Alabama, along with a number of other

states, selected pentobarbital as a replacement to ensure that it could continue to

carry out executions regardless of sodium thiopental’s availability. Williams filed

a motion for stay of execution in the Alabama Supreme Court alleging, inter alia,

that the ADOC’s protocol change will result in a violation of his Eighth

Amendment right to be free from cruel and unusual punishment. The Alabama

Supreme Court denied his request. He then filed a similar motion in federal

district court, which the court denied. Williams filed an appeal with this Court,

again asking for a stay of execution. After careful review, we conclude that the

district court did not abuse its discretion, and, accordingly, we affirm.

 The details of Williams’s crimes are recapitulated in many court opinions. See, e.g.,

1

Williams v. Allen, 598 F.3d 778 (11th Cir. 2010).

2
I.

We review the denial of a stay of execution under the abuse-of-discretion

standard. See Jones v. Allen, 485 F.3d 635, 639 (11th Cir. 2007). A stay of

execution is equitable relief. Williams v. Allen, 496 F.3d 1210, 1212–13 (11th Cir.

2007). This Court may grant a stay of execution only if the moving party shows

that: (1) he has a substantial likelihood of success on the merits; (2) he will suffer

irreparable injury unless the injunction issues; (3) the stay would not substantially

harm the other litigant; and (4) if issued, the injunction would not be adverse to

the public interest. See In re Holladay, 331 F.3d 1169, 1176 (11th Cir. 2003).

II.

“That the Eighth Amendment protects against future harm to inmates is not

a novel proposition.” Helling v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475

(1993). A typical Eighth Amendment challenge—alleging that the State will

2

inflict cruel or unusual punishment—requires the defendant to demonstrate that

(1) the State is being deliberately indifferent (2) to a condition that poses a

substantial risk of serious harm to him. Farmer v. Brennan, 511 U.S. 825, 828,

114 S. Ct. 1970 (1994). As a plurality of the Supreme Court summarized, “to

prevail on such a claim there must be a ‘substantial risk of serious harm,’ an

 The Eighth Amendment is applicable to the states through the Fourteenth Amendment’s 2

Due Process Clause. Robinson v. California, 370 U.S. 660, 666, 82 S. Ct. 1417 (1962). 

3
‘objectively intolerable risk of harm’ that prevents prison officials from pleading

that they were ‘subjectively blameless for purposes of the Eighth Amendment.’” 

Baze v. Rees, 553 U.S. 35, 50, 128 S. Ct. 1520 (2008) (plurality opinion) (quoting

Farmer, 511 U.S. at 842, 846 & 847 n.9). Therefore, in order to obtain relief, 3

Williams must demonstrate that there is a substantial likelihood he can satisfy

those requirements. We conclude he cannot.

Ultimately, the most relevant evidence presented consisted of (1) an expert

report, introduced by Williams, challenging the use of pentobarbital in Oklahoma

executions, and (2) an expert report, submitted by the State, asserting that the use

of pentobarbital in the Alabama lethal injection protocol presents “an exceedingly

small risk that a condemned inmate . . . would experience any pain or suffering

associated with the administration of lethal doses of pancuronium bromide and

potassium chloride.” The federal courts that considered Oklahoma’s use of

pentobarbital ultimately rejected the expert report that Williams now offers. See

Pavatt v. Jones, 627 F.3d 1336, 1340 (10th Cir. 2010). The evidence present does

not demonstrate that the ADOC’s use of pentobarbital creates substantial risk of

serious harm to Williams. We are unable to determine that the district court

 This Court has never engaged in extended analysis to determine the exact holding of the 3

extraordinarily fractured Baze Court. We cite it here for its summary of unquestionable,

controlling precedent and decline to address its full reach.

4
abused its discretion by crediting the expert report submitted by the State and

concluding that Williams has not demonstrated a substantial likelihood of success

on the merits of this Eighth Amendment claim. 

III.

In attempting to avoid the legal prism typically used for analyzing similar

Eighth Amendment claims, see supra, Williams asserts that he has a broad Eighth

Amendment right to know the details of his execution in order to ensure proper

oversight and avoid uncertainty that unnecessarily creates anxiety, which greatly

exacerbates his sentence. Williams focuses on Nelson v. Campbell, 541 U.S. 637,

124 S. Ct. 2117 (2004), In re Medley, 134 U.S. 160, 10 S. Ct. 384 (1890), and

Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909 (1976), and he argues that these

cases establish an Eighth Amendment right to know the details surrounding his

execution. 

In Nelson, the ADOC altered its lethal injection protocol—approximately

one week before defendant’s execution—to allow for a “cut-down” procedure. 

541 U.S. at 640–41. This involved making a two-inch incision in the defendant’s

arm or leg and catheterizing a vein one hour before the execution with only local

anesthetic. Id. at 641. The state proposed the “cut down” procedure because

standard techniques for gaining intravenous access were unavailable because of

5
the defendant’s past drug use. Id. at 640. The holding of Nelson, however, is

“extremely limited.” Id. at 649. The Court simply concluded that 42 U.S.C.

§ 1983 was “an appropriate vehicle for petitioner’s Eighth Amendment claim

seeking a temporary stay” based on altered execution protocols that could violate a

defendant’s civil rights. Id. at 639. It remanded the case for further proceedings

to determine the merits of the defendant’s Eighth Amendment claim. Id. at 651.

In Medley, the Court, analyzing an ex post facto claim, concluded that a new

Colorado statute imposed a greater penalty than its predecessor because the new

law prohibited the warden from disclosing the execution date to the defendant,

while the previous statute required a court to inform the defendant of his execution

date. 134 U.S. at 170–72. Ultimately, the Court concluded that the “secrecy”

surrounding an execution under the new statute “must be accompanied by an

immense mental anxiety amounting to a great increase of the offender’s

punishment,” and, therefore, the statute in question violated the Constitution’s ex

post facto clause. Id. at 172. See also Gregg, 428 U.S. at 173 (prohibiting the

“unnecessary and wanton infliction of pain”). 

We decline to read these cases as establishing a categorical rule entitling

defendants to a lethal injection protocol that is legislatively enacted and subjected

to extensive litigation. After an in camera review, the district court found that the

6
State’s representations regarding the amended execution protocol were accurate

and adequately informed Williams of the process that would be used. The

replacement of sodium thiopental with pentobarbital does not constitute a

significant alteration in the ADOC’s lethal injection protocol, and we conclude

that such an amendment does not violate the Eighth Amendment under the cases

cited by Williams.

IV.

Ultimately, the district court did not abuse its discretion in denying

Williams’s motion to stay his execution. Accordingly, we affirm the decision of

the district court.

AFFIRMED.

 

7