*

Judge Gibbons recused herself from participation in this ruling.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0211p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SEDLEY ALLEY,

Plaintiff-Appellant,

v.

GEORGE LITTLE, in his official capacity as

Tennessee’s Commissioner of Corrections, et al.,

Defendants-Appellees.

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No. 06-5816

Filed: June 27, 2006 

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,

CLAY, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.*

_______________________

AMENDED ORDER _______________________

The court having received a petition for rehearing en banc of the decision issued June 24,

2006, and the petition having been circulated to all non-recused active judges of this court, less than

a majority of whom favored the suggestion,

It is ORDERED that the petition be and hereby is denied. The mandate shall issue forthwith.

1
No. 06-5816 Alley v. Little, et al. Page 2

BOYCE F. MARTIN, JR., Circuit Judge, with whom DAUGHTREY, MOORE, COLE, and

CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc. 

I.

Sedley Alley seeks to enjoin the state of Tennessee from executing him through its lethal

injection procedure, which he alleges will cause him to experience “the terrorizing and excruciating

experience of suffocation without the ability to move or to express the pain and suffering which he

is experiencing,” and “extreme and excruciating pain” throughout the nerve fibers of his venous

system, all without providing him sufficient anesthesia to prevent him from feeling this pain.

Compl. ¶¶ 56, 68-69. According to Alley, Tennessee has prohibited using one of the chemicals

involved in the lethal injection protocol to euthanize animals. Id. ¶ 81 (citing Tenn. Code Ann. 44-

17-303(c)). In addition to these allegations, the district court found that Alley “provided an adequate

showing on the merits of his Eighth and Fourteenth Amendment claims” through his provision of

“expert testimony that the current lethal injection protocol causes excruciating deaths.” D. Ct. Op.,

Case No. 3:06-cv-00340, at 6 (M.D. Tenn. May 11, 2006). If Alley’s allegations prove true, he will

have presented a meritorious claim that the state’s lethal injunction procedure violates the Eighth

Amendment’s prohibition of cruel and unusual punishment.

Despite the grave implications of cruel and unusual punishment raised in Alley’s claim, a

panel of this court reversed the district court’s stay of his execution. In subsequently ruling on the

state’s still pending motion to dismiss, the district court read the panel’s rebuke of its earlier decision

to be so complete that it felt compelled to grant the state’s motion to dismiss based on the panel

opinion. Compare Alley v. Little, No 3:06-0340, 2006 U.S. Dist. LEXIS 32319, at *10 (M.D. Tenn.

May 11, 2006) (stating that given Alley’s promptness in filing, “it would be strange jurisprudence

to dismiss this action for ‘undue delay.’”) with Alley v. Little, No. 3:06-0340 (M.D. Tenn. June 14,

2006) (finding that “[a]lthough this court remains concerned about the interaction between a robust

application of the ‘unnecessary delay doctrine and traditional concepts of ripeness in the death

penalty context, . . . [t]he law of the Sixth Circuit is that . . . this case was unnecessarily delayed.”).

Now in its latest opinion, that same panel has affirmed the district court’s dismissal of the case,

despite the fact that since its last decision, the Supreme Court has unanimously determined that a

death row inmate can challenge the method of his execution under 28 U.S.C. § 1983, just as Alley

seeks to do. Hill v. McDonough, S.Ct. No. 05-8794, 2006 U.S. LEXIS 4674 (U.S., June 12, 2006).

 I would reverse the panel’s decision, not only because Alley presents claims that create serious

concerns about Tennessee’s lethal injection protocol, but because I believe the panel’s

determinations that Alley has little likelihood of success on the merits and that he was dilatory in

filing his complaint are simply incorrect. 

II. 

Last month, on May 11, 2006, the district court found that a stay of Alley’s execution was

appropriate to preserve the status quo until the issuance of the Supreme Court’s then pending

decision in Hill, and also found support for the stay based on the traditional four factor analysis for

granting a preliminary injunction. In reversing the stay, the panel presumed that Alley could bring

a section 1983 claim, and ruled that even if he was able to challenge the lethal injection protocol,

the district court abused its discretion by staying the execution. In addition to stating that the

pendency of Hill did not require a stay because it would be unclear whether Alley could bring a

successful challenge even if he could proceed under section 1983, the panel summarily rejected the

district court’s analysis of the four factors relevant to the issuance of a preliminary injunction. The

panel’s reasoning was that existing law “offers no basis for finding lethal injunction protocols

unconstitutional.” I was joined by four colleagues in dissenting from this Court’s denial of rehearing

en banc. Alley v. Little, No. 06-5650, 2004 Fed. App. 0164P (6th Cir. May 16, 2006). In its recent

ruling in question here, the panel stands by this erroneous determination. 
No. 06-5816 Alley v. Little, et al. Page 3

I believe that the panel’s conclusion that Alley has little likelihood of succeeding on the

merits is wrong. Despite the panel’s suggestion, it is not necessary that Alley rely on prior cases

finding the lethal injection protocol to be cruel and unusual punishment. If this was the primary

relevant inquiry, as the panel opinions suggest, no challenge to a method of execution would ever

go forward, no matter how indifferent a state became to the pain and suffering inflicted by the

process, simply because nobody else has successfully challenged the procedure before. Rather, in

order to ultimately prevail, Alley needs to prove that Tennessee’s current protocol amounts to cruel

and unusual punishment based on “the evolving standards of decency that mark the progress of a

maturing society.” Roper v. Simmons, 543 U.S. 551, 561 (2005).

As the district court initially found, Alley has made more than a sufficient showing here to

establish a likelihood of success on his Eighth Amendment claim. Indeed, the fact that Tennessee

allows a chemical to be used in executing humans that it prohibits for use in euthanizing animals

suggests that the state’s own evolving standards of decency find its procedure offensive. Moreover,

Alley has introduced evidence that Tennessee’s most recently executed prisoner consciously

suffered excruciating pain during his execution by lethal injection. D. Ct. Record, R. 11, Affidavit

of David Lubarsky, filed April 14, 2006. The panel has ignored these facts altogether in both of its

opinions.

The district court’s findings on this issue, and its discretion to preserve the status quo were

entirely ignored by the initial panel decision. See Mascio v. Public Emples. Retirement Sys., 160

F.3d 310, 312 (6th Cir. 1998) (“The granting of a preliminary injunction is subject to appellate

review under an ‘abuse of discretion’ standard. The injunction will seldom be disturbed unless the

district court relied upon clearly erroneous findings of fact, improperly applied the governing law,

or used an erroneous legal standard.”). The panel decision did not find any erroneous findings of

fact, improper application of governing law, or use of erroneous legal standards by the district court,

but instead substituted its judgment for the district court’s, in contravention of this Court’s

precedent. See id. The current panel decision similarly relies on its determination that Alley is not

likely to succeed in his challenge, in addition to its finding of unnecessary delay, based on the

simple observation that no federal court has found lethal injection to be cruel and unusual

punishment. This fact is largely irrelevant, and ignores Alley’s troubling allegations and actual

likelihood of success. The panel’s conclusion to the contrary should not support either its reversal

of the stay or the dismissal of Alley’s case.

III.

Both panel opinions determined that Alley delayed in filing the present action and found this

to be a basis for reversing the stay and dismissing the case. In its prior opinion, however, the district

court explicitly found that Alley acted promptly and in good faith, given the procedural posture of

his pending legal challenges and the timing of the state’s determination of his execution protocol.

In light of the panel’s initial opinion, however, the district court noted in its subsequent opinion that

[a]lthough this court remains concerned about the interaction between a robust

application of the ‘unnecessary delay’ doctrine and traditional concepts of ripeness

in the death penalty context, it is not the function of this court to address such

concerns, but rather to apply the law of the Sixth Circuit. The law of the Sixth

Circuit is that unnecessary delay warrants dismissal, and that this case was

unnecessarily delayed.

Alley v. Little, No. 3:06-0340 (M.D. Tenn. June 14, 2006).
No. 06-5816 Alley v. Little, et al. Page 4

I do not believe that Alley delayed unnecessarily in bringing his challenge to the lethal

injection protocol. Perhaps most significantly, in this circuit, until the Supreme Court’s ruling in

Hill, Alley could not have even brought his present challenge under section 1983, as this Court’s

precedent would have deemed it a subsequent habeas petition. See In re Sapp, 118 F.3d 460, 464

(6th Cir. 1997) (holding that “a challenge to a method of execution, whatever denominated (Rule

60(b), § 1983, or otherwise) is to be treated as a habeas petition.” (internal citation omitted)). Thus

it was only the decision in Hill that made Alley’s challenge possible, and by filing before that

decision was even issued and seeking a stay to await its result, he showed an eagerness to litigate

his claim as soon as possible, rather than delaying it. Given that Sapp prevented Alley from filing

suit until two weeks ago, it is difficult to comprehend how Alley could be viewed as dilatory in

filing the present action. Cf. Nelson v. Campbell, 541 U.S. 637, 650 (2004) (stating that “there is

a strong equitable presumption against the grant of a stay where a claim could have been brought

at such a time as to allow consideration of the merits without requiring entry of a stay.”) As a matter

of this Court’s prior precedent Alley simply could not have brought his claim before Sapp was

reversed by Hill. Because he could not have brought this suit any sooner, there is no basis to dismiss

it for unnecessary delay. 

Alley also argues that his claim was not ripe until the date was set for his execution, citing

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). The recent panel opinion distinguishes

Martinez-Villareal on the basis that the challenge in that case involved the petitioner’s mental

competence to be executed, and such a challenge necessarily is unripe until execution is imminent.

A challenge to the method of execution, on the other hand, becomes ripe at the earlier time when

the method of execution is determined. In some cases, for example in states with a single method

of execution, this could be a meaningful distinction. Based on Tennessee’s death penalty protocol,

however, the condemned prisoner is asked to choose how he will be executed, and lethal injection

is selected if he refuses to make a choice. Alley refused to express a preference, and lethal injection

was selected by default. Only at the point when he was approached about the method of execution,

on April 19, 2006, and refused to make a choice, did Alley know with certainty that he would be

executed by lethal injection. Because the method of execution was only firmly determined shortly

before the execution was scheduled to occur, Alley had a valid reason for filing the present action

after that determination was conclusively made.

The initial panel reasoned that Alley could have presumed he would be executed by lethal

injection, as it is the default method, and that his claim would have been ripe sooner than he argues.

At a minimum, however, the choice offered by Tennessee creates some confusion as to when a

method of execution is determined. Had Alley attempted to challenge his method of execution

before the method had been chosen, or before he had even been presented with the choice under the

state’s procedure, his challenge would clearly have faced issues of ripeness. If federal precedent

does not clearly establish that this claim would have been unripe, it at least contributes confusion

on the point. See, e.g., Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th Cir. 2005) (“To date, we

have not resolved the question of when challenges to execution methods are ripe. . . We have

suggested that a constitutional challenge to an execution method becomes ripe when the method is

chosen. However, because the execution protocol is subject to change, [plaintiff] argues that his

challenge to the protocol, as opposed to a generic challenge to the statutorily specified method, did

not become ripe until his execution was imminent as described in Martinez-Villareal. We need not,

and do not resolve this question.”). 
No. 06-5816 Alley v. Little, et al. Page 5

Further, upon learning of his execution date, Alley immediately sought information about

the protocol to be used, and upon learning of the execution protocol, promptly expressed his

objections to the procedure with the state commissioner. Alley v. Little, No 3:06-0340, 2006 U.S.

Dist. LEXIS 32319, at *10 (M.D. Tenn. May 11, 2006). When the commissioner did not respond,

Alley filed this lawsuit in short order. Id. The district court noted his promptness in its initial grant

of the stay of execution. Id. (noting that “it would be strange jurisprudence to dismiss this action

for ‘undue delay’”). 

Even if a court might have found Alley’s claim to be ripe had he filed it before the state

determined his method of execution, this is not dispositive of the question of undue delay. The

basis for dismissing a legal challenge for undue delay is the equitable principle of discouraging a

plaintiff from manipulative tactics. See Nelson v. Campbell, 541 U.S. 637, 649-50 (2004). This

doctrine does not require that Alley show that his claim would have absolutely been determined

unripe as a matter of law had he filed it prior to the official designation of his method of execution.

Rather the ripeness inquiry is relevant to explain whether he had a good faith reason to file the suit

when he did and that the timing did not involve any “abusive delay, which has been compounded

by last-minute attempts to manipulate the judicial process.” Id. Given the possibility that an earlier

claim might have been determined to be unripe, combined with the fact that Alley did not know with

certainty how he would be executed until April 19, 2006, his filing of the suit shortly thereafterward

cannot said to be manipulative, abusive, dilatory, or in bad faith. 

The recent panel opinion suggests that the Fifth Circuit’s decision in Reese v. Livingston

supports its conclusion here that Alley’s claim was filed too late in the day. 2006 U.S. App. LEXIS

15166 (5th Cir. 2006). Although Reese does involve the rejection of a stay of execution in a section

1983 challenge to a method of execution after Hill, the opinion in Reese provides no description of

the timing involved in the filing of the challenge. Id. Reese provides no guidance whatsoever for

finding that Alley’s challenge was delayed unnecessarily, as there is no way to compare the issues

surrounding the timing of the filing in each case. Although the Supreme Court did state in Hill that

“federal courts can and should protect States from dilatory or speculative suits,” 2006 U.S. LEXIS

4674, at *22, the record here shows that Alley was anything but dilatory in bringing his claim, and

this rule does not provide a basis for dismissal here. 

IV.

Along with four colleagues, I expressed concern in my earlier dissent from denial of

rehearing en banc in this case about the inconsistent granting of stays of execution to allow

challenges to the lethal injection procedures, and the resulting arbitrariness added to the

administration of the death penalty. Alley v. Little, No. 06-5650, 2004 Fed. App. 0164P (6th Cir.

May 16, 2006). By making it clear in Hill that challenges to the method of execution can be brought

under section 1983, the Supreme Court has taken an initial step towards consistency and clarity in

this area that not only is required as a matter of fairness, but to protect the principles of the Eighth

Amendment. 

This Court has an opportunity to follow the Supreme Court’s lead and to ensure that

executions within our jurisdiction do not involve cruel and unusual punishment by allowing Alley’s

challenge to go forward. See also Gomez v. United States Dist. Court, 503 U.S. 653, 659 (1992)

(Stevens, J., dissenting) (“[I]f execution by cyanide gas is in fact unconstitutional, then the State

lacks the power to impose such punishment. [The inmate’s] delay, even if unjustified, cannot endow

the State with the authority to violate the Constitution.”). Alley raises troubling allegations about

the suffering involved in death by lethal injection, and should be allowed his day in court,

particularly given that he has presented his legal challenge as promptly as he reasonably could have.

The panel’s attempt to short-circuit his claim through the misapplication of a principle of equity does

a disservice to the Constitution and its prohibition of cruel and unusual punishment, in addition to
No. 06-5816 Alley v. Little, et al. Page 6

being incorrect. I believe that Alley has not delayed unnecessarily in filing suit, and has presented

a sufficient likelihood of success on the merits to warrant a stay of his execution. I would thus vote

for rehearing en banc to reverse the decision of both panel opinions, and remand the case to the

district court.
No. 06-5816 Alley v. Little, et al. Page 7

RONALD LEE GILMAN, Circuit Judge, with whom R. GUY COLE, JR., Circuit Judge,

joins, dissenting from the denial of rehearing en banc. The panel affirms the district court’s

dismissal of Alley’s challenge to the lethal injection protocol. In so doing, it revisits its reasons for

vacating the preliminary injunction and the stay of execution. Two primary reasons are articulated

in support the panel’s analysis: (1) Alley unnecessarily delayed his challenge, and (2) there is a

small likelihood of success on the merits. Because I believe that the panel improperly weighed these

two factors, I favor rehearing en banc.

First, Alley argues that he did not unduly delay in bringing his challenge to the lethal

injection protocol. The propriety of his delay cannot even he assessed, he contends, until we

determine when his claim first could have been filed. This requires an Article III ripeness analysis,

which the panel failed to perform.

The panel relies on the fact that Alley was originally scheduled for execution in 2004 and

that he failed to bring his challenge then, thus evincing undue delay. It is true that the Tennessee

Supreme Court on January 14, 2004 set an execution date of June 3, 2004. This date was not altered

until May 19, 2004, when the district court stayed the matter for a determination of whether Alley’s

Rule 60(b) motion constituted a habeas petition. The panel says that Alley should have challenged

the lethal injection protocol during this four-month period prior to the stay.

But in order to have a ripe claim regarding the lethal injection protocol, Alley argues, two

events must have taken place: (1) the execution date must be set, and (2) the warden must have

presented Alley with the choice of the method of execution, and Alley must have made the choice

of lethal injection (as opposed to electrocution, the other method available in Tennessee). In 2004,

Alley argues that only the first of these events came to pass. I find nothing in the record that

contradicts Alley’s claim. Without having been presented with this choice and without having

elected lethal injection, any suit brought in the four-month period prior to the stay challenging the

lethal injection protocol would have been thrown out on ripeness grounds. This being the case, I

believe the panel unjustly faulted Alley for failing to file his challenge sooner.

Turning to Alley’s argument as to the likelihood of success on the merits, I agree with the

panel that current law does not compel the conclusion that Tennessee’s lethal injection protocol is

unconstitutional. At the same time, however, there is an affidavit from an expert in this case

demonstrating that the lethal cocktail that is to be administered to Alley is insufficient to completely

anesthetize him, producing a “reasonably high chance of suffering a cruel and inhumane death.”

This evidence makes success on the merits at least a possibility—albeit not a foregone

conclusion—and not “as speculative as any other claim about possible future changes in governing

law,” as the panel concluded.

In light of the panel’s (1) failure to address the Article III ripeness concerns present in

Alley’s case, and (2) failure to properly weight the expert’s affidavit as to Alley’s likelihood of

success on the merits, I would grant rehearing en banc.

ENTERED BY ORDER OF THE COURT

 /s/ Leonard Green

___________________________________

Clerk