FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 15, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-14927

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D.C. Docket No. 06-00032-CV-SPM

CLARENCE E. HILL,

Plaintiff-Appellant, 

versus

JAMES MCDONOUGH,

CHARLES CRIST,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Florida

_____________

(September 15, 2006)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:
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Petitioner Clarence E. Hill, currently an inmate on Florida’s death row,

moves this court for a stay of execution and expedited appeal of the dismissal of

his pending action pursuant to 42 U.S.C. § 1983, in which he alleges violations

and threatened violations of his rights under the Eighth and Fourteenth

Amendments to the U.S. Constitution. We find that Hill does not meet the

standard for injunctive relief, and accordingly we deny his petition.

The basic facts of the underlying case resulting in Hill’s death sentence are

set forth in the decision of the Florida Supreme Court affirming Hill’s conviction

and death sentence on direct appeal. Hill v. State, 515 So. 2d 176, 177 (Fla.

1987). Over the course of more than 20 years, Hill has pursued various

unsuccessful appeals and collateral proceedings seeking to have his conviction

and death sentence overturned. On January 24, 2006, four days before his

scheduled execution, Hill filed a civil complaint under 42 U.S.C. § 1983. In his

complaint, Hill alleged that the particular three-drug lethal injection method used

by Florida to carry out executions constituted cruel and unusual punishment in that

the administration of the first drug might insufficiently render the condemned

prisoner unconscious. Thus, a condemned prisoner might suffer severe pain

caused by the administration of the second and third drugs in the execution series.
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The day after Hill filed his complaint, the district court dismissed his claims

for lack of jurisdiction, holding that Hill’s action was effectively a successive

petition for a writ of habeas corpus filed without leave and, thus, ran afoul of 28

U.S.C. § 2244(b). Hill v. Crosby, No. 4:06-CV-032-SPM, 2006 WL 167585, at

*2–*3 (N.D. Fla. Jan. 21, 2006). On appeal, this court affirmed, denying Hill’s

application for a stay. Hill v. Crosby, 437 F.3d 1084, 1085 (11th Cir. 2006). The

Supreme Court stayed the execution, granted certiorari and reversed, holding that

Hill’s claim could properly be brought as a § 1983 action where it challenged only

the particular lethal injection protocol being used by the state, not the validity of

lethal injection sentences generally. Hill v. McDonough, 546 U.S. ---, 126 S. Ct.

1189, 1190, 163 L. Ed. 2d 1144 (2006) (mem.); 547 U.S. ---, 126 S. Ct. 2096,

2102, 165 L. Ed. 2d 44 (2006). On remand, we further remanded the case to the

district court for consideration on the merits. Hill v. McDonough, --- F.3d ---,

2006 WL 2472727, at *1 (11th Cir. Aug. 29, 2006).

Thereafter, in the course of one day – September 1, 2006 – Hill filed an

amended complaint and request for a preliminary injunction, the State filed a

response and motion to dismiss, and the district court issued an order denying the

injunction and dismissing the complaint. On September 5, 2006, Hill moved for

reconsideration, which motion was denied by the district court on September 11. 
 Although Hill generally characterizes his motion as one for a “stay of execution,” it is

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apparent that he petitions this court for a preliminary injunction, not a stay of the district court’s

order. The action of the district court leaves nothing for this court to stay, as the dismissal of the

complaint and denial of reconsideration leave no further action to be taken by the district court. 

Instead, we treat Hill’s motion as a request for an order temporarily enjoining the State from

carrying out Hill’s execution until his appeal in this case can be decided.

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Now, Hill asks this court to stay his impending execution to allow for an expedited

appeal.

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At the outset, we note that we do not here review the district court’s order

denying Hill’s request for injunctive relief and dismissing his complaint. By his

current motion, Hill asks only that we delay the execution and expedite his appeal. 

Were we to grant the relief that Hill seeks, we would only reach a review of the

district court’s decision after receiving the parties’ arguments via an accelerated

briefing schedule. With Hill’s execution scheduled to be carried out within a

matter of days from our receipt of the instant motion, we decline to engage in that

protracted, and ultimately futile, sequence of events.

Instead, we dispose of Hill’s motion by denying his request for an

injunction based upon our independent analysis of the equities. In its decision

remanding Hill’s action to this court, the Supreme Court noted that it did not rule

on whether a condemned § 1983 plaintiff challenging the method of execution

might be eligible for a stay of execution to allow him to pursue his suit, but that

“federal courts can and should protect States from dilatory or speculative suits” in
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recognition of the “important interest in the timely enforcement of a sentence.” 

Hill v. McDonough, 547 U.S. at ---, 126 S. Ct. at 2104. The Court further noted

that “a stay of execution is an equitable remedy. It is not available as a matter of

right, and equity must be sensitive to the State’s strong interest in enforcing its

criminal judgments.” Id. Thus, we consider Hill’s motion for injunctive relief

anew, but with the clear indication from the Supreme Court in this case that we

may deny Hill’s request if the equities demand that result.

As with any application for injunctive relief, our analysis turns in part on

the type of injunction being sought. Hill’s request for a preliminary injunction is

not predicated on any independent cause of action; instead, he requests the

injunction solely for the purpose of allowing time to pursue his appeal. As such,

the injunction sought is not a “traditional” injunction, but instead one grounded in

the authority of the federal courts under the All Writs Act, 28 U.S.C. § 1651(a),

which states, “The Supreme Court and all courts established by Act of Congress

may issue all writs necessary or appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of law.” See Klay v. United

Healthgroup, Inc., 376 F.3d 1092, 1099–1100 (11th Cir. 2004) (explaining that

“[t]he Act does not create any substantive federal jurisdiction” and that the Act “is

a codification of the federal courts’ traditional, inherent power to protect the
 Because we already have subject matter jurisdiction over Hill’s appeal of the dismissal 2

of his § 1983 action, this case is entirely different from In re: Clarence Edward Hill, 437 F.3d

1080, 1083 (11th Cir. 2006), where our jurisdiction ceased once we denied Hill’s application

under 28 U.S.C. § 2244(b)(3)(A) to file a successive petition for a writ of habeas corpus.

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jurisdiction they already have, derived from some other source”). An injunction

under the All Writs Act “must simply point to some ongoing proceeding, or some

past order or judgment, the integrity of which is being threatened by someone

else’s action or behavior.” Id. (noting “a court’s traditional power to protect its

jurisdiction”). Such is clearly the case here. Hill has noticed his appeal of the

district court’s dismissal of his § 1983 complaint, and we clearly have jurisdiction

over that appeal. Were we to grant a preliminary injunction in order to allow time

to hear Hill’s appeal, we would be doing so to protect our appellate jurisdiction

from the impending act of the State of Florida to execute Hill.

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We find, however, that the equities do not support Hill’s request. Simply

put, Hill was the architect of the very trap from which he now seeks relief. At the

outset, Hill filed his § 1983 complaint four days before his previously scheduled

execution date of January 24, 2006, and just after the Florida Supreme Court

rejected his application for post-conviction relief on, among other grounds, his

challenge to the Florida lethal injection protocol. See Hill v. State, 921 So. 2d

579, 582–83 (Fla. 2006). Hill’s assertion of essentially the same lethal injection
 The Florida Supreme Court relied on Sims in rejecting Hill’s lethal injection challenge 3

during post-conviction proceedings. Hill v. State, 921 So. 2d at 582–83.

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challenge in the Florida courts reveals that he was aware of the grounds for the

claim much earlier than the date on which he actually filed his § 1983 action in

federal district court. But we need not rely on that inference alone to determine

that Hill unreasonably delayed in filing his federal complaint. The Florida

Supreme Court considered a challenge to the Florida lethal injection protocols on

similar grounds as early as 2000. Sims v. State, 754 So. 2d 657, 666–68 (Fla.

2000). Although it is unclear from the procedural history whether Hill addressed 3

the Sims precedent in his post-conviction proceedings after 2000, the fact remains

that, during the pendency of his various collateral challenges, Florida had

considered the same type of claim upon which Hill now seeks relief. In light of

this context, Hill cannot claim that it was impossible for him to initiate his federal

suit any earlier.

Further, with regard to more recent procedural history, Hill has again

demonstrated his intent to delay proceedings in order to necessitate a stay. After

the district court denied his request for injunctive relief and dismissed his

complaint, Hill moved for reconsideration and, again, for a stay of execution. The

district court denied his motions on September 11, 2006, noting that “Hill’s
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emotionally-laden arguments raise no new evidence. . . . [I]t appears that Hill is

engaging in dilatory tactics to delay a death sentence.” Order Denying Motion for

Reconsideration and Motion for Stay at 2–3, Hill v. McDonough, No. 4:06-CV032-SPM (N.D. Fla. Sept. 11, 2006). By moving for reconsideration, Hill only

further delayed this court’s receipt of his case on appeal, bringing us within days

of his scheduled execution before he filed the instant motion for a stay and

expedited appeal.

In light of Hill’s actions in this case, which can only be described as

dilatory, we join our sister circuits in declining to allow further litigation of a §

1983 case filed essentially on the eve of execution. See White v. Johnson, 429

F.3d 572, 573–74 (5th Cir. 2005) (holding that even if the condemned inmate’s §

1983 action was cognizable, “‘he is not entitled to the equitable relief he seeks’

due to his dilatory filing” (citations omitted)); Harris v. Johnson, 376 F.3d 414,

417–18 (5th Cir. 2004) (condemned inmate who filed § 1983 action ten weeks

before his scheduled execution “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”); see generally Hicks v. Taft, 431 F.3d 916 (6th

Cir. 2005); Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004). This holding is

consistent with the Supreme Court’s instruction in its remand of Hill’s case that
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“[a] court considering a stay must also apply ‘a strong equitable presumption

against the grant of a stay where a claim could have been brought at such time as

to allow consideration of the merits without requiring entry of a stay.’” Hill v.

McDonough, 547 U.S. at ---, 126 S. Ct. at 2104 (citation omitted).

Accordingly, Hill’s motion for a stay of execution and expedited appeal is

DENIED.