Saturday, September 09, 2006

Capital punishment is costly, immoral


Capital punishment is costly, immoral

The word "capital" in capital punishment comes from the Latin for head,"caput." Capital punishment therefore refers directly to "losing yourhead." I think it's fair to say that any state government still enforcingcapital punishment has indeed lost its head.

One month ago, Gov. Jeb Bush signed another death warrant for convicted murderer Clarence Hill. Hill was supposed to be executed in January, but the Supreme Court stayed his execution.

They ruled that Hill and others on death row had the right to challenge the use of lethal injection as amethod of execution.

Lethal injection has come under suspicion recently based on research done right here in the state of Florida, at the University of Miami. A UM study found that in 43 of 49 investigated cases, condemned prisoners did not receive enough sodium thiopental to induce a quick and effective state of unconsciousness. That means they were awake while being executed.

Is that not cruel and unusual punishment?

Besides, who gave us humans the right to take another human's life in the first place?I don't see where the popular support for capital punishment comes from.

88 countries have abolished capital punishment, whereas only 69 retain it. Of those 69 countries, 29 have not executed a condemned prisoner in thelast 10 years. Clearly, the United States is lagging.America is a mostly Christian country.

Isn't God's message to love unconditionally - even your enemies?
Yes, in the Bible, God takes revenge countless times. But we are not God.

How can one be pro-life and pro-death penalty at the same time?

You may argue that a fetus is innocent, whereas a criminal is not. But how can we judge the nature and nurture that steered the course of a criminal's life with enough certainty to execute him?

As much as capital punishment is a moral issue, it is also an economic one.

The National Bureau of Economic Research estimates that between 1982 and 1997, the cost of capital punishment trials was $1.6 billion.

Florida would save $51 million a year by punishing all first-degree murderers with life in prison.

Capital trials are long and expensive - and in cases like Clarence Hill's, in which constant appeals burden the justice system, the cost of actually executing a condemned prisoner is outrageous. So why not save our tax dollars for education and address the problem of criminals at its foundation? Perhaps the most effective argument in favor of the death penalty is,

"What if someone killed a person you love?" My answer is that I, of course, would go insane - meaning I would be in no place to make a sane decision regarding the criminal's life.

We cannot, as sane voters, allow politicians like Jeb Bush to act as demigods, meting out life and death.

With gubernatorial candidates Charlie Crist and Jim Davis - both supporters of capital punishment - running against each other in the upcoming election, there isn't much room to turn. But if we as voters want to see justice carried out with human decency -and our tax dollars put to good use - we're going to have to speak up

(source: Todd Portnowitz is an English junior. His column appears onFridays; (The University of Florida) Independent Florida Alligator)

Thursday, September 07, 2006





v. CASE NO. 4:06cv32-SPM

Florida Dept. of Corrections, et al.
in his official capacity,

COMES NOW Respondent, by and through undersigned counsel, and
responds to Hill’s Motion for Reconsideration of Order dated
September 1, 2006, Dismissing Complaint, presumably filed pursuant
to Fed.R.Civ.P. 59(e), and response to renewed request for stay or
injunction and would show:

1. Hill seeks reconsideration of this Court’s Order
dismissing his action brought pursuant to 42 U.S.C. §1983,
asserting that the Court “misapprehended and mistaken several
issues of law and fact”, specifically that he has not been
“dilatory”, and that this Court “has conflated and confused the
legal significance of dilatoriness and the corresponding analyses

1 Interestingly, Hill has failed to identify the rule upon
which he seeks reconsideration.

applicable to the motion to dismiss and a stay of execution.” He
again reargues that he is entitled to injunctive relief based on
the identical facts and law submitted previously.

2. Respondent specifically denies all allegations set forth
in Hill’s motion for reconsideration, and demands strict proof of
each, since the burden rests with the losing party to assert a
basis for further consideration. Respondent has never waived any
possible defenses under the applicable civil rules and would
require strict compliance by Hill with regard to any burden.
A. Motion For Reconsideration Should Be Denied

3. A “post-judgment motion” may be treated as either a
Fed.R.Civ.P. 59 or 60 motion, regardless of how the motion is
styled by the movant, depending on the type of relief sought. See
Mays v. U.S. Postal Service, 122 F.3d 43, 46 (11th Cir. 1997). A
motion that is filed within 10 business days of the entry of
judgment and that asks for reconsideration of matters encompassed
in the judgment, such as in the instant case, is normally
considered a motion under Rule 59(e). See Finch v. City of Vernon,
845 F.2d 256, 258-59 (11th Cir. 1988).

4. The Eleventh Circuit has held that “[T]he only grounds for
granting a Rule 59(e) motion are newly-discovered evidence or
manifest errors of law or fact." In re Kellogg, 197 F.3d 1116,

1119 (11th Cir. 1999); Mincey v. Head, 206 F.3d 1106, 1137 n. 69
(11th Cir. 2001), wherein the court held:
The decision whether to alter or amend a judgment
pursuant to Rule 59(e) is "committed to the sound
discretion of the district judge." American Home
Assurance Co. v. Glenn Estess & Assocs., 763 F.2d 1237,
1238-39 (11th Cir.1985).69
69 The petitioner's burden of showing an abuse of
discretion is a "difficult" one. See Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 408, 110 S. Ct. 2447, 2462,
110 L. Ed. 2d 359 (1990). We have stated that "an abuse
of discretion occurs if the judge fails to apply the
proper legal standard or to follow proper procedures in
making the determination, or ... [makes] findings of fact
that are clearly erroneous." Hatcher v. Miller (In re
Red Carpet Corp.), 902 F.2d 883, 890 (11th Cir.1990).

"The function of a motion to alter or amend a judgment is
not to serve as a vehicle to relitigate old matters or
present the case under a new legal theory ... [or] to
give the moving party another 'bite at the apple' by
permitting the arguing of issues and procedures that
could and should have been raised prior to judgment." In
re Halko, 203 B.R. 668, 671-72 (Bankr.N.D.Ill.1996)
(internal quotation marks and citations omitted). Thus,
it is not an abuse of the court's discretion to deny a
Rule 59(e) motion that requests an amendment that relates
to a matter "that could have been raised before the
judgment was entered." Bannister v. Armontrout, 4 F.3d
1434, 1445 (8th Cir.1993).

Moreover, the moving party
will not prevail on a Rule 59(e) motion that introduces
previously unsubmitted evidence absent a showing that the
evidence was unavailable at the time of the judgment.
See Mays v. United States Postal Serv., 122 F.3d 43, 46
(11th Cir.1997).

Additionally, “[m]otions for reconsideration should not be used to
raise legal arguments which could and should have been made before
the judgment was issued." Sanderlin v. Seminole Tribe of Florida,
243 F.3d 1282, 1292 (11th Cir. 2001). Hill's Rule 59(e) motion has
not identified any meritorious errors of law or fact. Hill's

2 A Rule 60(b) motion may only be granted under 6
circumstances: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under Rule
59(b); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment.

Inquiry is limited to “whether one of the specified
circumstances exists in which Hill is entitled to reopen his
underlying claims." Feathers v. Chevron, 141 F.3d 264, 268 (6th Cir
1998).. A movant under Rule 60(b) fails to demonstrate entitlement
to relief under any subsection when he simply rephrases his prior
allegations. Johnson v. Unknown Dellatifa, 357 F.3d 539, 543 (6th
Cir. 2004). Hill merely reiterates the claims he made in his
complaint in his motion for reconsideration; accordingly, he has

factual and legal arguments do not present any “newly discovered"
or “previously unavailable" evidence. Therefore Hill's Rule 59(e)
motion must be denied.

5. The arguments and allegations in Hill’s motion for
reconsideration mirror those in his original complaint, which this
Court has already considered and dismissed. A district court will
not have abused its discretion in denying any motion for
reconsideration. See Zerman v. Jacobs, 751 F.2d 82, 85 (2nd Cir.
1984), the denial of a Rule 60(b) motion is appropriate where a
movant “continues to relitigate the same issue(s) that the court
already decided”, regardless of whether Hill's motion is construed
as one pursuant to Federal Rule of Civil Procedure 59(e), or Rule
60(b).2 Hill has not demonstrated any entitlement to relief.3

not demonstrated entitlement to relief under any of the subsections
of Rule 60(b).

B. Dilatory Litigation In Raising §1983 Complaint

6. The Court, in dismissing Hill’s §1983 complaint, found not
only had Hill provided no basis for not litigating his complaint
timely, but also found the very facts supporting his
reconsideration were available to Hill.

The Court observed:
In addition to the Lancet study, Hill contends in his
amended complaint that ‘new and critical’ information has
surfaced since his original complaint. This information
is recent case law from other federal jurisdictions in
which evidentiary hearings were held and discovery
conducted with regard to the various states' lethal
injection protocols and procedures. Hill cites Taylor v.
Crawford, 2006 WL 1779035 (W.D. Mo. Jun. 26, 2006),
Morales v. Hickman, 438 F.3d 926 (9th Cir. Feb. 19,
2006), and Cooey v. Taft, 430 F.Supp.2d 702 (Apr. 28,

These cases are not binding on this Court and
they can be distinguished significantly from Hill's case.
In each of these cases, the inmate brought his §1983
action either prior to having an execution date set or in
a timely enough manner that the court was able to
adequately develop a factual record.7 The courts in
Cooey and Morales specifically found that the inmates
were diligent in filing their §1983 actions;8 thus, those
courts were not bound by the precedent which this Court
must follow. Hill’s unnecessary delay in bringing this
action forecloses the relief which he seeks.
7 The Court notes that in Cooey v. Taft, 430 F. Supp. 2d
702 (Apr. 28, 2006), one of the plaintiffs was allowed to
intervene in the §1983 action prior to his execution date
being set; thus the district court granted an injunction
staying his execution once scheduled. The court
specifically found that the plaintiff had not
unnecessarily delayed in bringing an action under §1983.
The court stated, “. . . Plaintiff [Jeffery] Hill was not
within days of his execution. He did not sit on his
laurels. He did not wait until the State had set or even
requested an execution date.” See id, at 706.
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 5 of 27
4 “Our data suggest that anaesthesia methods in lethal
injection in the USA are flawed. Failures in protocol design,
implementation, monitoring and review might have led to the
unnecessary suffering of at least some of those executed. Because
participation of doctors in protocol design or execution is
ethically prohibited, adequate anaesthesia cannot be certain.
Therefore, to prevent unnecessary cruelty and suffering, cessation
and public review of lethal injections is warranted." Leonidas G.
Koniaris et al., Inadequate Anaesthesia in Lethal Injection for
Execution, 365 Lancet 1412, 1414 (2005)(Emphasis added).
5 In a Missouri capital case in the Eighth Circuit, Brown
brought an identical 42 U.S.C. §1983 action, where the court
rejected Dr. Lubarsky's THE LANCET paper, Brown v. Crawford, 408
F.3d 1027 (8th Cir. May 17, 2005), cert. denied Brown v. Crawford,
162 L.Ed.2d 310, 125 S.Ct. 2927, 2005 U.S. LEXIS 4806 (June 13,
8 See id. Also, the Ninth Circuit Court of Appeals, in
Morales v. Hickman, 438 F.3d 926, 930 (Feb. 19, 2006),
stated “Morales’ diligence allowed the court to more
thoroughly consider the relevant legal and factual issues
that ultimately bore on its conclusion.”
(Order September 1, 2006, p 9-10.)
7. Hill’s complaint has predominantly centered around the
April 2005 research paper in THE LANCET, which “hypothesizes that
this dose may not be administered properly or is possibly being
administered in a way that prevents it from having its intended
effect. See Koniaris et al., supra, at 1413. The study ultimately
concludes that ‘public review of lethal injection is warranted.’
Id. at 1414.”4
8. Hill had the ability to file his complaint prior to the
date his execution was set, indeed, defendants nationwide were
arguing permutations of THE LANCET article in federal courts,
albeit without much success.5
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 6 of 27
2005). In his dissent, Circuit Judge Bye states that the issue in
Brown “challenges the chemical protocol used by Missouri to carry
out lethal injections. He contends the three-chemical sequence
used by Missouri - sodium pentothal, pancuronium bromide, and
potassium chloride - creates a foreseeable risk of the gratuitous
infliction of unnecessary pain and suffering in violation of the
Eighth Amendment.” Hill all but abandoned any reference to THE
LANCET article by the time he arrived in the United States Supreme
Court on the merits in Hill.


9. The Court held in its January 21, 2006, order in Hill,

Plaintiff’s claim of “newly-discovered evidence” is
insufficient to overcome the procedural bar in this case.
Plaintiff cites the Lancet article as conclusive proof
that inmates do feel pain during the lethal injection
procedure. He details the injection process, noting that
sodium pentothal is first administered as an anesthetic,
followed by pancuronium bromide, a paralytic agent which
prevents the inmate from moving or otherwise showing pain
or discomfort. The final chemical to be injected is
potassium chloride, which causes the actual death by
stopping all movement of the heart and suffocating the

The Lancet researchers found that toxicology
reports in their case studies demonstrated that
insufficient amounts of anesthetic were injected,
permitting the inmates to experience the feelings of
being suffocated and having a heart attack, yet remaining
paralyzed by the pancuronium. While Florida’s procedure
was not examined in the study, Plaintiff argues that
Florida’s practice is “substantially similar” and thus
poses the same risk to inmates.

These exact issues were raised and disposed of in
Robinson, in which the Eleventh Circuit referred to
affidavits in that case addressing “the effects of the
drugs used during lethal injection, how they each cause
pain and suffering, and particularly how the pancuronium
bromide chemical paralyzes the person and masks the pain
and suffering being incurred.” Id. at 1285 n.4. An
additional affidavit “[discussed] how the level of
potassium chloride being used in the lethal injection
context may not cause actual cardiac arrest but may

6 See: Arizona Minority Coalition for Fair Redistricting v.
Arizona Independent Redistricting Commission, 366 F. Supp. 2d 887,
908 Arizona DC 2005)(“n19 “While Rule 8(c) of the Federal Rules of
Civil Procedure provides that laches shall be set forth as an
affirmative defense, where the elements of laches are apparent on
the face of a complaint, it may be asserted on a motion to dismiss

result in death by suffocation due to lack of oxygen.”
While the Lancet article itself may be new, having just
been published last year, the factual basis of
Plaintiff’s claim has certainly been raised and disposed
of in numerous cases, both in Florida and in other
states. Plaintiff has made no showing that he could not
have discovered these underlying predicates through the
exercise of due diligence. See In re Provenzano, 215
F.3d 1233, 1236-37 (11th Cir. 2000).1
1 The Supreme Court of Florida also noted in its opinion

[a]cross the nation, courts have rejected claims that The
Lancet study requires a new evaluation of the
constitutionality of lethal injection. See Brown v.
Crawford, 408 F.3d 1027 (8th Cir. 2005) (dismissing an
appellant’s motion for a stay of execution despite the
fact that the appellant based his claim under 42 U.S.C.
§1983 in part on The Lancet study at issue here);
Beighler v. State, 839 N.E.2d 691 (Ind. 2005) (finding
The Lancet study was not sufficient to establish “a
reasonable probability that Indiana’s method of execution
violates the federal or state constitution”).
2006 WL at *6.
Order p. 3-6 (Emphasis added).

10. Then, as now, this Court pointed out that Hill offered
“no reason for his delay in bringing this action just days before
his scheduled execution and, if properly before that court, would
have dismissed Hill’s complaint as a successive habeas based on
timeliness.”6 While granting Hill the ability to proceed with any
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 8 of 27
for failure to state a claim upon which relief may be granted)."
Russell v. Thomas, 129 F. Supp. 605, 605-06 (D.C. Cal. 1955); see
also 2 Moore's Federal Practice, §12.34[4][b] (Matthew Bender ed.
2003) (“Dismissal under Rule 12(b)(6) may also be appropriate when
a successful affirmative defense or other bar to relief appears on
the face of the complaint, such as the absolute immunity of a
defendant, claim preclusion, or the statute of limitations.")”. A
laches argument is two pronged -- unnecessary delay and prejudice
-- both extant here. Respondent asserted Hill failed to state a
cause of action upon which relief could be granted.

7 The Court however did reemphasize the need for the federal
courts to “protect States from dilatory or speculative suits”, even
under a §1983 lawsuit. Note: In Ex parte Aguilar, 2006 WL 1412666,
*2 (Tex. Cr. App. May 22, 2006)(unpublished)(Cochran, J.,
concurring) the court noted that there are serious problems with
the study including that (1) it is a research letter, which is
“akin to a letter to the editor”, not a peer-reviewed scientific
study; (2) the study was conceived by and based upon data supplied
by the attorney who represented death row inmates which “is hardly
a mark of scientific objectivity”, and (3) the “suggested

§1983 lawsuit, the Supreme Court, in Hill, did not address the
“equities and merits of Hill’s underlying action” because they were
not before that Court. To the extent that Hill argues all portions
of this Court’s January 21, 2006, Order are no longer valid, such
a conclusion is in error. Moreover, this Court’s superseding Order
of September 1, 2006, provides a valid basis to again conclude that
Hill was too long in seeking §1983 relief.

11. Unnecessary delays in bringing a claim about Florida’s
lethal injection procedures does not entitle a defendant to
“injunctive relief in a last minute §1983 action”, Gomez v. United
States Dist. Court for N. Dist. of Cal, 503 U.S. 633 (1992), and
Nelson v. Campbell, supra. This case raises no true issues of
“newly discovered evidence,”7 and Hill has offered no reason for

conclusion is so extraordinary that it challenges simple logic.”).

Indeed, Hill attempts to change the basis for §1983 review to
recent decisions in Morales v. Hackman, 415 F.Supp.2d 1037 (Cal.
Dist. Ct. 2006), and Cooey v. Taft, 430 F.Supp.2d 702 (Ohio Dist
Ct. 2006), set forth in footnote 1 of his August 25, 2006, Motion
for Immediate Remand [filed in the Eleventh Circuit and denied as
moot on August 29, 2006] are clear evidence that any §1983 action
is dilatory and dismissible as such.
The speculation as to the
impact of the three drugs used in Florida’s execution are no
different than the drugs used in Texas or North Carolina or
Virginia or California, and have always been the potential “subject
of litigation” as a condition of confinement. The fact that THE
LANCET article has found disfavor and has been rejected, and now
the issue de jour, is one that has been argued in the appellate
courts and rejected previously, does not resurrect an otherwise
untimely §1983. See: Brown v. Livingston, 2006 U.S. App. LEXIS
18163 (5th Cir. July 19, 2006) cert. denied, 2006 U.S. LEXIS 5247
(2006); Brown v. Beck, supra; Harris v. Johnson, supra; LeGrand v.
Stewart, 133 F.3d 1253 (9th Cir. 1998), and finally, Heckler v.
Chaney, 470 U.S. 821 (1985), to name a few cases previously
litigating “all manner of permutations” regarding any lethal
injection challenge.

8 Hill argues that he has not been able to secure the
information regarding the three drug cocktail that will be used
during any execution. He bottoms this argument on the fact that he
attempted to secure public records during the state post conviction
litigation and was thwarted because of Florida’s refusal to make an
exception to the public records rule governing last minute
litigation in active warrant cases. In fact, however, he had a
mechanism within which to secure information from the Department of
Corrections through either a grievance procedure or the securing of
public records via Fla.R.Crim.P. 3.853(i) entitled Limitations on
Post-production Request for Additional Records, which permits
exceptions to secure records. He never availed himself of that
rule. Fla.R.Crim.P. 3.852(i) provides a means to secure additional
records which Hill did not do prior to the activation of the
November 29, 2005 warrant. See Tompkins v. State, 872 So.2d 230,
244 (Fla. 2003)(“...although a request for public records under
rule 3.852(h)(3) is contingent upon the signing of a death warrant,
rule 3.852(i) "allows collateral counsel to obtain additional
records at any time if collateral counsel can establish that a
diligent search of the records repository has been made and 'the
additional public records are either relevant to the subject matter
of the postconviction proceeding or are reasonably calculated to
his delay in bringing a §1983 action until just days8 before his

lead to the discovery of admissible evidence.'" Sims, 753 So. 2d at
70-71 (quoting rule 3.852(i)(1)). Accordingly, Tompkins was not
required to wait until the death warrant was signed to make an
additional public records request, provided he could have made the
required showing under rule 3.852(i).”)

9 Other circuits have concluded that while challenges to the
three-chemical lethal injection procedure support a cognizable
claim under §1983; injunctive relief is not warranted if the delays
in filing of a §1983 action for equitable relief are just before a
scheduled execution. White v. Johnson, 429 F.3d 572, 573-74 (5th
Cir. 2005), White v. Livingston, __ U.S. __, 126 S.Ct. 601, 163
L.Ed.2d 502 (2005)(affirming the dismissal of White's §1983 action
for injunctive relief and emphasizing that White delayed until the
eleventh hour to file his challenge to the state's lethal injection
with the three chemicals in issue); Cooper v. Rimmer, 379 F.3d
1029, 1031-33 (9th Cir. 2004) (affirming the denial of last-minute
equitable relief in §1983 action challenging state's three-chemical
protocol for execution by lethal injection); Harris v. Johnson, 376
F.3d 414, 416-18 (5th Cir. 2004) (concluding that petitioner was not
entitled to equitable relief in §1983 action challenging the
state's three-chemical protocol for execution by lethal injection
where he had unnecessarily delayed in bringing his claim); Bieghler
v. Donahue, No. 1:06-cv-00136-LJM-TAB, 2006 U.S. Dist. LEXIS 6751
(S.D. Ind. Jan. 26, 2006) (relying on Nelson and denying TRO and
preliminary injunction in plaintiff's last-minute §1983 action
challenging the state's three-chemical method of lethal injection
and dismissing the §1983 action), stay of execution granted, No.
06-1300, 163 Fed. Appx. 419 (7th Cir. Jan. 26, 2006) (unpublished
order), stay of execution vacated, No. 05A684,___ U.S. ___, 126
S.Ct. 1190, 163 L.Ed.2d 1144 (2006).

scheduled execution.9

12. The Supreme Court did nothing to disturb the “timeliness”
of any §1983 complaint, therefore Hill’s “lethal injection claim
under §1983”, no matter what appellation given it by the district
court, was properly dismissed, Hill v. McDonough, “After Nelson, a
number of federal courts have invoked their equitable powers to
dismiss suits they saw as speculative or filed too late in the day.

See, e.g., Hicks v. Taft, 431 F.3d 916 (CA6 2005); White v.
Johnson, 429 F.3d 572 (CA5 2005); Boyd v. Beck, 404 F.Supp. 2d 879
(EDNC 2005).” Hill 126 S.Ct. at 2104.
13. Post Hill, in Alley v. Little, 2006 U.S. App. LEXIS 16605
(CA6 2006), rehearing en banc denied, 2006 U.S. App. LEXIS 16071,
cert. denied, 2006 U.S. LEXIS 5180 (June 27, 2006), the Sixth
Circuit, citing the Supreme Court’s opinion in Hill, held:
The Court noted that federal courts weighing petitioners'
§1983 challenges to lethal injection should continue to
consider various features of a filing when locating the
proper balance of equities. These include "a showing of
a significant possibility of success on the merits" and
the timeliness of the appeal. Timeliness is particularly
relevant when an appeal is brought in the strongly
disfavored circumstance in which its full consideration
would necessitate a stay of execution. Id. at 10 (citing
Barefoot v. Estelle, 463 U.S. 880, 895-96, 103 S.Ct.
3383, 77 L.Ed.2d 1090 (1983), and Nelson, 541 U.S. at
14. And, post Hill, in Lenz v. Johnson, 2006 U.S. Dist. LEXIS
50659 (E.D. Va., July 25, 2006), the Court, the day of Lenz’s
execution, held:
Turning to the facts before the Court, the timing of
Lenz's §1983 Complaint--filed almost exactly one month
before his scheduled execution date--gives rise to the
presumption that Lenz is engaging in disruptive, dilatory
tactics for the sole purpose of unjustifiably delaying
the execution of his death sentence that was imposed
nearly six years ago. In an effort to obfuscate what is
reasonably clear, Lenz argues that he could not have
filed his Complaint earlier, because Defendants are free
to unilaterally alter the lethal injection protocol. As
such, Lenz states that he needed to wait until his
execution date had been officially set. This, of course,
sounds plausible in theory but is purely specious in
reality. The lethal injection protocol in Virginia is no
secret. Courts have discussed it in great detail, see,
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 12 of 27
e.g., Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va.
2004), and death row inmates can undoubtedly inform
themselves, through counsel or using other means, of the
material details in advance of the [fifteen-day statutory
cut-off for selecting a method of execution. It is
disingenuous at best to represent that Lenz was prevented
from making an informed decision before the decision was
made for him by default.
Lenz, 2006 U.S. Dist. LEXIS at * 22-23. (Opinion attached). See
also Reid v. Johnson, 333 F.Supp. 543 (E.D. Va. 2004), cert.
denied, 542 U.S. 963 (2004).
15. The Court, in Lenz, observed that nothing in Hill v.
McDonough, supra, changed the Fourth Circuit’s prior decisions
handling any issues involving Virginia’s lethal injection
protocols. The Court concluded even if there were a basis to
overcome the untimeliness of Lenz’s complaint, under Blackwelder
Furniture Co. v. Seilig Mfg. Co., 550 F. 2d 1189, 194-96 (4th Cir.
1977), Lenz would be entitled to no relief under his burden of
proof that by a clear showing a balancing of the equities would
fall in his favor. “A court must consider the likelihood of
irreparable injury to the plaintiff if the preliminary injunction
were denied; the likelihood of harm to the defendant if the request
were granted; the likelihood that the plaintiff will prevail on the
merits; and the public interest.” Lenz, 2006 U.S. Dist. LEXIS at
The Court found that:
First, Lenz cannot establish the likelihood that he would
sustain irreparable injury if the preliminary injunction
request were denied. As courts have noted, the potential
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 13 of 27
injury must be actual and imminent, and not theoretical
or speculative. See In re Microsoft Corp. Antitrust
Litigation, 333 F.3d 517, 530 (4th Cir. 2003). The Court
in Reid found that the chance that an inmate would be
conscious and able to feel pain during the administration
of the final two chemicals is less than 6/1000 of one
percent. There is simply no way that Lenz can reconcile
that scientific fact with a "likelihood" of irreparable
Second, the harm to Defendants if the preliminary
injunction were granted is easy to grasp. The Supreme
Court in Hill acknowledged the interest states have in
enforcing their criminal judgments, and the Court was
emphatic in stating that "[t]he federal courts can and
should protect [s]tates from dilatory or speculative
suits." 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006).
Allowing illegitimate obstructions to the orderly
administration of justice would certainly harm Defendants
as they try to fulfill their public duties. Moreover,
states have a recognized interest in ensuring the timely
execution of death sentences. See Calderon v. Thompson,
523 U.S. 538, 556-57, 118 S.Ct. 1489, 140 L.Ed.2d 728
Third, given the clear weight of case law in this
jurisdiction (discussed supra and infra), Lenz is not
likely to prevail on the merits of his Complaint.
Finally, with respect to the public interest, society's
interest in retribution for criminal activity would erode
rapidly if patently dilatory suits were permitted to
derail the administration of justice time and time again.
Lenz has been facing a sentence of death for almost six
years. He has exhausted all state and federal avenues
for challenging his sentence and the underlying
conviction, yet, curiously, Lenz has raised these lethal
injection arguments for the very first time in the
instant §1983 Complaint, filed shortly before his
scheduled execution date. This area of law is not new,
and Virginia's lethal injection protocol has not been an
ever-changing mystery--certainly not in recent years.
The motivation behind Lenz's last-minute Complaint is
obviously to unjustifiably delay the inevitable. The
Court finds that the equities weigh heavily in favor of
denying Lenz's request for injunctive relief.
This finding is consistent with other recent rulings in
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 14 of 27
10 Hill must allege a risk of injury and show that the
possibility of injury is imminent or “certainly pending.” Adarand
this Court and in the Fourth Circuit. As already
discussed, the Court in Reid and Vinson rejected
virtually the same arguments now before the Court.
Notably, the Fourth Circuit affirmed the denial of a stay
in each of those cases. Perhaps even more persuasive,
though, is the Walker case. Even if the Court permitted
only a limited challenge to the lethal injection protocol
in Reid, this Court undoubtedly permitted a full
challenge in Walker, exploring evidence of the types of
chemicals used, training and qualification of personnel,
administration methods, and other factors.
Notwithstanding the arguably more comprehensive
presentation of facts in Walker, the Court, nevertheless,
struck the case from its docket shortly after hearing
summary judgment arguments.
Finally, in Walton v. Johnson, No. 2:06cv258 (E.D. Va.),
this Court did grant a stay of execution. Significantly,
though, when the §1983 defendants promptly appealed to
the Fourth Circuit, the appellate court vacated the stay
of execution the very same day on which the stay was
imposed--June 7, 2006. It is difficult to contemplate a
clearer indicator of the Fourth Circuit's stance toward
last-minute §1983 complaints posing challenges to the
lethal injection method of execution in Virginia.
Accordingly, and upon consideration of the merits of
Lenz's Complaint, n4 the Court will grant Defendant's
Motion to Dismiss.
n4 Because this case can be properly dismissed on the
merits, potential procedural bars, such as the failure to
exhaust administrative remedies, need not be discussed.
Lenz, 2006 U.S. Dist. LEXIS at *24-26.
16. Clearly, the district court was likewise correct in
finding that Hill had not provided a basis for justifying any delay
in filing his §1983 complaint.
17. There are additional reasons why dismissal is also
warranted. Hill lacked standing to file any §1983 complaint,10
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 15 of 27
Constructors v. Pena, 115 S.Ct. 2097, 2105 (1995); Shotz v. Cates,
256 F.3d 1077 (11th Cir. 2001) (immediate threat of future harm
required to confer standing); Bowen v. First Family Financial
Services Inc., 233 F.3d 1331, 1340 (11th Cir. 2000) (“A plaintiff
has standing to seek declaratory or injunctive relief only when he
‘allege[s] facts from which it appears there is a substantial
likelihood that he will suffer injury in the future.’”)(Emphasis
Hill cannot demonstrate a basis for standing to bring his §1983
action since he cannot overcome his burden of showing he has facts
from “which it appears there is a substantial likelihood that he
will suffer injury in the future.” See: Abdur’ Rahman v. Bredesen,
181 S.W.3d 292 (Tenn. 2005) cert. denied, __ U.S. __, 126 S.Ct.
2288, 164 L.Ed.2d 813 (2006), wherein, following an evidentiary
hearing on the three drug cocktail, the court found that method did
not violate the Eighth Amendment.
11 Any postconviction litigation that occurred of course would
not qualify as exhaustion of administrative remedies but would also
bar any §1983 action. Muhammad v. Close, 540 U.S. 749 (2004).
12 Moreover when the judgment of the Supreme Court issued to
the Eleventh Circuit on July 14, 2006, Hill still took no
opportunity to attempt to exhaust any state administrative remedies
albeit he should have known about the Ngo decision which was
decided on June 22, 2006, days after Hill v. McDonough, supra. See
Hollingsworth v. Brown, 788 So.2d 1078, 1081 (1st DCA 2001)(The
Florida Administrative Code has a procedure in place through which
Hollingsworth may grieve his claim. Under §944.09(1)(d), Florida
Statutes (1999), and §944.331, Florida Statutes (1999), the
legislature directed the Department of Corrections to adopt rules
pertaining to inmate grievance procedures that conform to 42 U.S.C.
§1997e, which the Department has promulgated in Chapter 33-103.);
and prior to the 1999 administrative changes, Morris v. Wainwright,
409 So.2d 1161 (Fla. 1st DCA 1982)(“Petitioner alleges that his gain
time has been improperly calculated, in violation of Weaver v.
Graham, 450 U.S. 24, 67 L.Ed.2d 17, 101 S.Ct. 960 (1981). However,
he has not shown that he has exhausted his administrative remedies
and timely filed for review of final agency action in this Court,
pursuant to §120.68(1), Fla.Stat. (1979). Rule 33.3.07, Fla.
Admin. Code, dictates a two-step review process within the
Department of Corrections, prior to judicial review of the order of
the Secretary or his representative. This Court has no
jurisdiction over petitioner's case because he fails to show that
failed to exhaust11 [or even attempt to exhaust]12 available state
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 16 of 27
he filed this petition within 30 days of the Secretary's response
to an inmate grievance appeal.” “...the petition for writ of
mandamus is denied for failure to allege and show exhaustion of
administrative remedies.”); Sutton v. Strickland, 485 So.2d 25
(Fla. 1st DCA 1986) (holding that a petitioner's challenge to his
confinement status through writ of habeas corpus was subject to
dismissal where the petitioner failed to exhaust administrative
remedies through the Department of Corrections' inmate grievance
13 In Hill’s Amended Verified Complaint For Declaratory and
Injunctive Relief, filed September 1, 2006, he admits he
misrepresented that he exhausted state administrative remedies when
he contends he first argues that he has “no administrative remedy
available” because the “lethal injection procedure” is
“prospective,” but then notes that he is precluded from bringing
any state administrative challenges because he elected to litigate
the lethal injection procedure via the state courts. See 42 U.S.C.
Finally, the ability to bring a §1983 claim, rather than
a habeas application, does not entirely free inmates from
substantive or procedural limitations. The Prison
Litigation Reform Act of 1995 (Act) imposes limits on the
scope and duration of preliminary and permanent
injunctive relief, including a requirement that, before
issuing such relief, "[a] court shall give substantial
weight to any adverse impact on . . . the operation of a
criminal justice system caused by the relief." 18 U.S.C.
§3626(a)(1) [18 USCS §3626(a)(1)]; accord, §3626(a)(2).
It requires that inmates exhaust available state
administrative remedies before bringing a §1983 action
challenging the conditions of their confinement. 110 Stat
1321-71, 42 U.S.C. §1997e(a) [42 USCS §1997e(a)] ("No
action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies
as are available are exhausted"). The Act mandates that
a district court "shall," on its own motion, dismiss "any
action brought with respect to prison conditions under
section 1983 of this title . . . if the court is
satisfied that the action is frivolous, malicious, fails
to state a claim upon which relief can be granted, or
seeks monetary relief from a defendant who is immune from
administrative remedies,13 and was barred due to “issue preclusion”14
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 17 of 27
relief." §1997e(c)(1). Indeed, if the claim is frivolous
on its face, a district court may dismiss the suit before
the plaintiff has exhausted his state remedies.
Nelson v. Campbell, 541 U.S. 649 (Emphasis added).
Hill’s state administrative remedies have been known and
available to him since 2000, when Florida changed it method of
execution and, as such, he was required to exhaust them prior to
any §1983 filing. See Woodford v. Ngo,__U.S. __, 126 S.Ct. 2378,
74 USLW 4404, 165 L.Ed.2d 368 (June 22, 2006)(Prison Litigation
Reform Act of 1995 (PLRA), “PLRA strengthened this exhaustion
provision”...exhaustion is mandatory, Booth v. Churned, 532 U.S.
731, 739 (2001), thus “exhaustion of available administrative
remedies is required for any suit challenging prison conditions
(the crux of Hill’s §1983 claim), not just suits under §1983.
Nussle, supra, at 524, 122 S.Ct. 983.”). Ngo, 126 S.Ct. at 2382-
14 Hill raised, as part of his December 15, 2005, successive
state court postconviction litigation, the issue of whether “new
evidence” has come to light based on “research letters” published
in THE LANCET, that evidenced empirical data that execution by
lethal injection might be flawed. The state trial court and
Florida Supreme Court rejected the very argument made herein in his
federal action.
Collateral estoppel, or issue preclusion, prevents relitigation
of all "issues of fact or law that were actually
litigated and necessarily decided in a prior proceeding against the
party who seeks to relitigate the issues.” Hawkins v. Risley, 984
F.2d 321, 325 (9th Cir. 1993). Federal courts give preclusive
effect to issues decided by state courts when a party from a prior
state court proceeding attempts to re-litigate identical issues in
a subsequent federal proceeding. Allen v. McCurry, 449 U.S. 90,
96, 66 L.Ed.2d 308, 101 S.Ct. 411 (1980). This deference "promotes
the comity between state and federal courts that has been
recognized as a bulwark of the federal system." McCurry, 449 U.S.
at 95-96 (citing Younger v. Harris, 401 U.S. 37, 43-45, 27 L.Ed.2d
669, 91 S.Ct. 746 (1971)). See San Remo Hotel, L.P. v. City and
county of San Franscico, California, 545 U.S. 323, 332-33 (2005).
A state postconviction proceeding decided on the merits can be
the basis for precluding a §1983 action in federal court if the
state court afforded a “full and fair opportunity for the issue to
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 18 of 27
be heard and determined under federal standards." Blohm v. C.I.R.,
994 F.2d 1542, 1553 (11th Cir. 1993); McGowan v. Commissioner of
Internal Revenue, 2006 U.S. App. LEXIS 16534 (11th Cir. June 28,
2006). Federal courts must give preclusive effect to state court
judgments, and the scope of the preclusive effect is governed by
the law of the state from which the prior judgment emerged. See
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 79
L.Ed.2d 56, 104 S.Ct. 892 (1984). Issue preclusion applies under
Florida law when: (1) the issue in the present action is identical
to the issue decided in the prior adjudication; (2) the prior
adjudication resulted in judgment on the merits; (3) the party
against whom issue preclusion is asserted was a party or is in
privity with a party to the prior adjudication; and (4) the party
against whom collateral estoppel is asserted had a full and fair
opportunity to litigate the issue in the prior suit.
15 The Rooker-Feldman doctrine limits the subject-matter
jurisdiction of federal district courts and courts of appeal over
certain matters related to previous state court litigation. See
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); Dist. of
Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983).
Under this doctrine, federal courts, other than the Supreme Court,
“have no authority to review the final judgments of state courts"
which involve the same parties as the parties in the federal
action, and this jurisdictional bar “extends not only to
constitutional claims presented or adjudicated by a state court,
but also to claims that are 'inextricably intertwined' with a state
court judgment." Goodman ex. rel Goodman v. Sipos, 259 F.3d 1327,
1332 (11th Cir. 2001); see also Amos v. Glynn County Bd. of Tax
Assessors, 347 F.3d 1249, 1266 n.11 (11th Cir. 2003). “A federal
claim is inextricably intertwined with a state court judgment if
the federal claim succeeds only to the extent that the state court
wrongly decided the issues before it." Goodman, 259 F.3d at 1332.
Nevertheless, “even if a claim is 'inextricably intertwined' with
the state court's judgment, the doctrine does not apply if the
plaintiff had no 'reasonable opportunity to raise his federal claim
in state proceedings.'" Id. (internal citation omitted).
Incorvaia v. Incorvaia, 154 Fed. Appx. 127, 128 (11th Cir. 2005).
or the Rooker-Feldman doctrine,15 in maintaining any §1983 action.
While the Court did not rule on these alternative grounds, each are
equally as valid a basis to dismiss as the timeliness basis for
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 19 of 27
C. Hill Is Not Entitled To Stay Or Injunctive Relief
1. Stay
18. As expressed in Hill v. McDonough, supra, Hill is not
entitled to a stay of execution here:
Filing an action that can proceed under §1983 does not
entitle the complainant to an order staying an execution
as a matter of course. Both the State and the victims of
crime have an important interest in the timely
enforcement of a sentence. Calderon v. Thompson, 523
U.S. 538, 556, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).
Our conclusions today do not diminish that interest, nor
do they deprive federal courts of the means to protect
We state again, as we did in Nelson, 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 without undue interference from the federal
courts. 541 U.S., at 649-650, 124 S.Ct. 2117, 158
L.Ed.2d 924. See In re Blodgett, 502 U.S. 236, 239-240,
112 S.Ct. 674, 116 L.Ed.2d 669 (1992) (per curiam); Delo
v. Stokes, 495 U.S. 320, 323, 110 S.Ct. 1880, 109 L.Ed.2d
325 (1990) (per curiam) (KENNEDY, J., concurring). Thus,
like other stay applicants, inmates seeking time to
challenge the manner in which the State plans to execute
them must satisfy all of the requirements for a stay,
including a showing of a significant possibility of
success on the merits. See Barefoot v. Estelle, 463 U.S.
880, 895-896, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). See
also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct.
1865, 138 L.Ed.2d 162 (1997) (per curiam) (preliminary
injunction not granted unless the movant, by a clear
showing, carries the burden of persuasion).
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 a time as to
allow consideration of the merits without requiring entry
of a stay." Nelson, supra, at 650, 124 S.Ct. 2117, 158
L.Ed.2d 924. See also Gomez v. United States Dist. Court
for Northern Dist. of Cal., 503 U.S. 653, 654, 112 S.Ct.
1652, 118 L.Ed.2d 293 (1992) (per curiam) (noting that
the “last-minute nature of an application" or an
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 20 of 27
applicant's "attempt at manipulation" of the judicial
process may be grounds for denial of a stay).
Hill, 126 S.Ct at 2104.
See Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) (equitable
relief not warranted where delay in bringing action challenging
method of execution post-Nelson); White v. Johnson, 429 F.3d 572
(5th Cir. 2005) (same). In the instant case, Hill’s “action” should
be dismissed. See Alley v. Little, supra, wherein the Sixth
Circuit Court also provided:
... The Court took note of two cases, one from this
circuit, in which "federal courts have invoked their
equitable powers to dismiss suits they saw as speculative
or filed too late in the day." Ibid. In Hicks v. Taft,
431 F.3d 916 (6th Cir. 2005), we ruled that a last-minute
petition by a death row inmate, filed six days before his
scheduled execution, did not warrant a stay of the
execution even though the district court had permitted
him to intervene in a fellow inmate's §1983 challenge to
the constitutionality of Ohio's lethal injection
protocol. We held the "district court . . . did not
abuse its discretion in weighing the criteria for the
granting of a stay . . . and denying the relief
requested, primarily because the motion was untimely."
(citing Nelson, 541 U.S. at 649, and quoting the phrase
"a court may consider the last minute nature of an
application to stay execution in deciding whether to
grant equitable relief"). In White v. Johnson, 429 F.3d
572 (5th Cir. 2005), the Fifth Circuit affirmed the
dismissal of a condemned's "last-minute" §1983 challenge
to Texas's lethal injection protocol on the grounds that
it was "dilatory." Justice Kennedy wrote the "federal
courts can and should protect States from dilatory or
speculative suits . . . ." Hill [WL] at 10.
19. Likewise, in Reese v. Livingston, 2006 U.S. LEXIS 4890
(5th Cir. June 20, 2006), Reese filed a §1983 challenge to Texas's
lethal injection protocol on May 25, 2006, less than one month
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 21 of 27
before his scheduled execution on June 20th. In considering
Reese's petition, the Fifth Circuit cited Hill for the proposition
that “a plaintiff cannot wait until a stay must be granted to
enable it [sic] to develop facts and take the case to trial-not
when there is no satisfactory explanation for the delay." The
court denied Reese's request for a stay of execution during the
pendency of his §1983 challenge to the lethal injection protocol.
The Supreme Court, in Reese v. Livingston, 2006 U.S. LEXIS 4889
(2006), acting that same day, denied a stay and denied Reese's
petition for a writ of certiorari. Reese was executed. See also
Wilson v. Livingston, 2006 U.S. App. LEXIS 10958 (5th Cir. 2006)
(“district court denied, sua sponte, injunctive relief for failure
to state a claim upon which relief may be granted,” citing Harris
v. Johnson, 376 F.3d 414 (5th Cir. 2004), Wilson's filing was
dilatory, because Wilson has been sentenced to death for
approximately 12 years and failed to file his complaint until more
than two years after the Supreme Court denied certiorari for his
federal habeas petition....[w]e deny his request for injunctive
relief without reaching the merits of his §1983 claim. Id. at 417;
see also Smith v. Johnson, 440 F.3d 262 (5th Cir.), stay denied, 126
S.Ct. 1294, 163 L.Ed.2d 1146 (2006); White v. Johnson, 429 F.3d 572
(5th Cir.), stay denied, 126 S.Ct. 601, 163 L.Ed.2d 502 (2005).);
Lenz v. Johnson, 2006 U.S. Dist. LEXIS at *21-22, (relying on Hill
v. McDonough, held “The Fourth Circuit has been equally transparent
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 22 of 27
16 This is one of many cases in which inmates throughout the
country have sought to challenge lethal injection protocols for
judicial executions. See, e.g., Morales v. Hickman, 415 F.Supp.2d
1037 (N.D. Cal. 2006); Smith v. Johnson, No. 4:06-CV-450, 2006 WL
644424 (S.D. Tex. Feb. 13, 2006), aff'd, 440 F.3d 262 (5th Cir.
2006); Evans v. Saar, 412 F.Supp.2d 519 (D. Md. 2006); Anderson v.
Evans, No. 5:05-CV-0825-F, 2006 WL 83093 (W.D. Okla. Jan. 11,
2006); Ross v. Rell, 392 F.Supp.2d 224 (D. Conn. 2005); Beardslee
v. Woodford, No. 5:04-CV-5381-JF, 2005 WL 40073 (N.D. Cal. Jan. 7,
2005), aff'd, 395 F.3d 1064 (9th Cir. 2005) ; Reid v. Johnson, 333
in expressing its views. See, e.g., Stockton v. Angelone, 70 F.3d
12, 13 (4th Cir. 1995) ("[L]ast minute stays . . . represent an
interference with the orderly processes of justice which should be
avoided in all but the most extraordinary of circumstances.");
Jones v. Murray, 976 F.2d 169, 171 (4th Cir. 1992)(citing "yet
another example of a petitioner who has waited until the eve of his
execution to . . . [seek relief] without a justifiable excuse for
the delay").” And most recently Flippen v. Beck, Case. No. 5:06-
CT-3062-H, Order denying injunctive relief and stay of execution
based on attack on North Carolina’s drug protocols), Flippen v.
Beck, __U.S. App. LEXIS __ (4th Cir. August 16, 2006)(Motion for
injunctive relief and stay denied), cert. denied Flippen v. Beck,
2006 U.S. 5315 (August 18, 2006).
2. Injunction
20. Moreover, as to any injunctive relief, the standard for
issuance of a preliminary injunction within the court’s discretion,
is dictated by four factors:
a. A substantial likelihood of success on the
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 23 of 27
F.Supp.2d 543 (E.D. 2006); Harris v. Johnson, 323 F.Supp.2d 797
(S.D. Tex. 2004), vacated, 376 F.3d 414 (5th Cir. 2004); Oken v.
Sizer, 321 F.Supp.2d 658 (D. Md.), vacated, 542 U.S. 916 (2004);
Cooper v. Rimer, No. 5:04-CV-436-JF, 2004 WL 231325 (N.D. Cal. Feb.
6, 2004), aff'd, 379 F.3d 1029 (9th Cir. 2004); Bieghler v. Indiana,
839 N.E.2d 691 (Ind. 2005), cert. denied, 126 S.Ct. 1190 (2006);
Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 20051, cert.
denied, 126 S.Ct. 2288 (2006).
The Courts have concluded that there has been a failure to
demonstrate a likelihood of irreparable harm or a likelihood of
success on the merits in many of these case.
17 Other circuits have concluded that while challenges to the
three-chemical lethal injection procedure support a cognizable
claim under §1983; injunctive relief is not warranted if the delays
in filing of a §1983 action for equitable relief are just before a
scheduled execution. White v. Johnson, 429 F.3d 572, 573-74 (5th
Cir. 2005), White v. Livingston, __ U.S. __, 126 S.Ct. 601, 163
L.Ed.2d 502 (2005)(affirming the dismissal of White's §1983 action
for injunctive relief and emphasizing that White delayed until the
eleventh hour to file his challenge to the state's lethal injection
with the three chemicals in issue); Cooper v. Rimmer, 379 F.3d
1029, 1031-33 (9th Cir. 2004) (affirming the denial of last-minute
equitable relief in §1983 action challenging state's three-chemical
protocol for execution by lethal injection); Harris v. Johnson, 376
F.3d 414, 416-18 (5th Cir. 2004) (concluding that petitioner was not
entitled to equitable relief in §1983 action challenging the
state's three-chemical protocol for execution by lethal injection
where he had unnecessarily delayed in bringing his claim); Bieghler
v. Donahue, No. 1:06-cv-00136-LJM-TAB, 2006 U.S. Dist. LEXIS 6751
(S.D. Ind. Jan. 26, 2006) (relying on Nelson and denying TRO and
preliminary injunction in plaintiff's last-minute §1983 action
challenging the state's three-chemical method of lethal injection
and dismissing the §1983 action), stay of execution granted, No.
06-1300, 163 Fed. Appx. 419 (7th Cir. Jan. 26, 2006) (unpublished
order), stay of execution vacated, No. 05A684,___ U.S. ___, 126
S.Ct. 1190, 163 L.Ed.2d 1144 (2006).
b. Whether the plaintiff will suffer irreparable
injury if the injunction is not issued;17
c. Whether the threatened injury to the plaintiff
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 24 of 27
18 See Hill v. McDonough, supra, citing “Mazurek v. Armstrong,
520 U.S. 968, 972, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (per
curiam) (preliminary injunction not granted unless the movant, by
a clear showing, carries the burden of persuasion).”
19 Hill v. McDonough, supra., and Nelson, v. Campbell, supra..
outweighs the potential harm to the opposing party;18 and
d. Whether the injunction, if issued, will be
adverse to the public interest.19
Alabama v. United States Army Corps of Eng'Rs, 424 F.3d 1117, 1128
(11th Cir. 2005); American Red Cross v. Palm Beach Bloos Bank Inc.,
143 F.3d 1407, 1410 (11th Cir. 1998); Haitian Refugee Center Inc.
v. Nelson, 872 F.2d 1555, 1561-1562 (11th Cir. 1989), aff’d, 111
S.Ct. 888 (1991).
21. Hill has the burden of showing these factors, not the
defendants. Alabama v. United States Army Corps of Eng'Rs, 424
F.3d at 1136. While weighing these factors, the court should keep
in mind that a preliminary injunction is “‘ an extraordinary and
drastic remedy [which is] the exception rather than the rule, and
the plaintiff must carry the burden of persuasion.’” United States
v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983); McDonald’s Corp. v.
Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). And, such a
drastic remedy is not routinely granted. Haitian Refugee Center v.
Baker, 789 F.Supp. 1552, 1558 (S.D. Fla. 1991). To warrant entry
of preliminary relief, the movant must “clearly” carry his burden
of persuasion on all four factors. Church v. City of Huntsville,
30 F.3d 1332, 1342 (11th Cir. 1994). See Nnadie v. Richter, 976
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 25 of 27
F.2d 672, 690 (11th Cir. 1992)(Court must find for the movant on all
four factors, it is an abuse of discretion for the court to enter
a preliminary injunction when the movant has failed to demonstrate
all four factors.) Of the four factors, irreparable harm is the
most important. Northeastern Florida Chapter v. Jacksonville,
Florida, 896 F.2d 1283, 1285 (11th Cir. 1990), reversed on other
grounds, 111 S.Ct. 2297 (1993); Lambert, 695 F.2d at 540
(demonstrating a substantial likelihood of success on the merits
still requires a movant to show irreparable harm to warrant
issuance of a preliminary injunction). Clearly, based on the
plethora of cases resolving the instant claim whether based on The
LANCET article or some alternative challenge, no relief is
22. Hill has failed to establish that the facts warrant the
exercise of this Court's injunctive powers. The likelihood of
irreparable harm to Respondent is greater than the likelihood
ofirreparable harm to Hill. Moreover, Hill has not demonstrated a
likelihood of success on the merits of his claim. These factors,
balanced together with the public interest, counsel against the
issuance of a preliminary injunction in this case. Any motion for
a preliminary injunction should be denied.
Respectfully submitted,
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 26 of 27
/s/ Carolyn M. Snurkowski
Assistant Deputy Attorney General
Florida Bar No. 158541
The Capitol
Tallahassee, FL 32399-1050
(850) 414-3300
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by electronic filing and U.S. Mail to Mr. Todd
Doss, 725 SE Baya Drive, Suite 102, Lake City, Florida 32026, this
6th day of September, 2006.
/s/ Carolyn M. Snurkowski
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 27 of 27


1 Mr. Hill files this motion to correct the lack of an electronic
signature in his original Motion for Reconsideration and Setting
Aside of Order Dismissing Complaint and Denying Preliminary
Temporary Injunction. Doc. 41.
CASE NO. 4:06-cv-00032-SPM
Plaintiff, )
v. )
in his official capacity; ) WARRANT SIGNED; EXECUTION
) IMMINENT. September 20,
) 2006 at 6:00 p.m.
and )
in his official capacity )
Defendant(s). )
COMES NOW the Plaintiff, Clarence Hill, and moves this Court
to reconsider its Order Dismissing Complaint rendered September
1, 2006. Plaintiff respectfully argues that this Court has
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 1 of 24
2 Mr. Hill in an abundance of caution has attached Plaintiff’s
Motion for Temporary Injunction to Stay His Execution Scheduled
for September 20, 2006 at 6:00 p.m. filed Friday, August 31,
2006. Undersigned in reviewing the CM/ECF website prior to the
filing of this motion inexplicably could not locate the document
on the docket report.
misapprehended and mistaken several issues of law and fact that
led to an erroneous ruling when it dismissed Mr. Hill’s Amended
Verified Complaint for Declaratory and Injunctive Relief,
Plaintiff’s Motion for Temporary Injunction to Stay His Execution
Scheduled for September 20, 2006 at 6:00 p.m.2, and granted
Defendant(s) Amended Motion to Dismiss.
Mr. Hill will contend in this motion that several errors
were present and concerns raised in this Court’s Order Dismissing
Complaint. Mr. Hill presents argument that although Mr. Hill has
not been dilatory, this Court has conflated and confused the
legal significance of dilatoriness and the corresponding analyses
applicable to the motion to dismiss and a stay of execution.
Further argument is provided that Mr. Hill should be allowed to
litigate the merits of his claims - even if a stay of execution
is not granted - an opportunity that has proved valuable and
meaningful in other jurisdictions. Additionally, Mr. Hill notes
at this point he still has not been specifically informed as to
the procedure that will be utilized to execute him. In support of
his position, Mr. Hill states:
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 2 of 24
In denying Mr. Hill relief this Court found that “Moreover,
Florida’s lethal injection methods were subjected to a full
evidentiary hearing in 2000 in Sims v. State, 754 So.2d 657 (Fla.
2000), and Hill could have challenged the procedure after the
Sims decision was rendered.” Order Dismissing Complaint, at 7.
This Court then goes on to state, “Hill has offered no reason for
his delay in bringing a §1983 action until just days before his
execution. Therefore, under the authority of Gomez, Nelson, and
Hill, this Court finds that Hill has delayed unnecessarily in
bringing his §1983 challenge of Florida’s lethal injection
procedure, and his complaint must be dismissed.” Order Dismissing
Complaint at 7-8 (citations omitted).
This Court’s analysis of Mr. Hill’s perceived delay in
bringing his claim is erroneous and incomplete. Mr. Hill did not
unduly delay in bringing his claim. Rather, as is explained in
his motion for temporary injunction, Mr. Hill could not have
brought his claim prior to the time his execution date was set.
In support of this position, Mr. Hill stated as follows:
Mr. Hill diligently pursued his claim as
soon as it ripened. His claim became ripe
when his death warrant issued, because it was
only at that point that he could ascertain
the specific means by which the State would
carry out his lethal injection. See
Worthington v. Missouri, 166 S.W. 3d 566, 583
n.3 (Mo. 2005). That is so because the
Department of Corrections retains complete
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 3 of 24
3 In contrast, Florida prescribes, with careful detail, the
chemicals to be used in animal euthanasia and the chemicals
that are prohibited for such use (including any neuromuscular
blocking agent); a strict “order of preference” for the manner
in which the lethal solution is to be administered; the
qualifications that a person administering the lethal solution
must possess; and a 16-hour “euthanasia technician course”
that anyone administering the lethal solution must have taken.
See Fla. Stat. 828.058. The statute goes on to detail the
minimum topics that the certification course must cover
(including pharmacology, proper administration and storage of
euthanasia solutions) and the manner in which the curriculum
for the course is to be approved (by the Board of Veterinary
Medicine). See id. at 828.058(4)(a).
discretion over how lethal injections will be
carried out, and shrouds its intentions in
No Florida statute provides the chemical
sequence to be used, the procedures for
administering it, any qualifications or
training required for persons engaged in
administering the chemicals and monitoring
the execution, or the means of venous
access.3 Nor does any Florida statute even
require that such procedures be devised
through rule-making process, or in
consultation with medical experts. Compare
Fla. Stat. § 828.055 (requiring Board of
Pharmacy to adopt rules for the issuance of
permits authorizing the use of chemicals in
animal euthanasia, which “shall set forth
guidelines for the proper storage and
handling” of the chemicals); 828.058
(requiring training for animal euthanasia
technicians involving a curriculum approved
by the Board of Veterinary Medicine). And
the Department has not itself decided to
publish any definitive set of procedures
through rule-making or otherwise. The
Department, therefore, retains total
discretion to change the chemical sequence,
the manner of administration, the
qualifications and training of the execution
team, and any safeguards to ensure proper
administration and adequate anesthetic depth
at any time and with respect to any
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 4 of 24
4 The State of Florida has denied Mr. Hill any access whatsoever
to records, policies, procedures, or any other information
concerning its lethal injection protocols and procedures.
particular execution. The State has never
disputed that the Department has total
discretion in this regard. The “central
concern” of the ripeness doctrine “is whether
the case involves uncertain or contingent
future events that may not occur as
anticipated.” Charles Alan Wright et al.,
13A Federal Practice and Procedure § 3532, at
112. Accordingly, the ripeness inquiry looks
to whether a sufficiently concrete and
definitive agency policy or practice exists.
Otherwise, judicial intervention would
“den[y] the agency an opportunity to correct
is own mistakes and to apply its expertise.”
Federal Trade Comm’n v. Standard Oil Co., 449
U.S. 232, 242 (1980). As the Supreme Court
of the United States has explained in the
analogous context of federal administrative
[T]he ripeness requirement is designed
“to prevent the courts, through avoidance
of premature adjudication, from
entangling themselves in abstract
disagreements over administrative
policies, and also to protect the
agencies from judicial interference until
an administrative decision has been
formalized and its effects felt in a
concrete way by the challenging parties.”
Ohio Forestry Association, Inc. v. Sierra
Club, 523 U.S. 726,
732-33 (1983).
Here, rather than promulgate a definitive
policy, DOC has retained total discretion
over its process of lethal injection. For
this reason, it was only when Mr. Hill’s
execution was imminent that he could
ascertain what execution procedures would be
applied to him. The State cannot fight tooth
and nail to resist publication of any
definitive protocol4, and then accuse the
condemned person of inequitable conduct
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 5 of 24
5 Although Mr. Hill was not required to exhaust state-court
remedies prior to bringing his federal-court action under
§ 1983, see Wilkinson v. Dotson, 125 S. Ct. 1242, 1249 (2005),
he did so out of an abundance of caution, recognizing that if
the district court were to construe his complaint as a habeas
filing, he would have had to exhaust those judicial remedies,
see 48 U.S.C. § 2254(b)(1)(A). The State of Florida raises the
issue of the PLRA exhaustion requirements in its motion to
dismiss. Doc. 34, at 8-16. Notably, Mr. Hill’s complaint alleged
that no administrative remedies were available to him. See
Complaint at 17-18 and in his Amended Complaint. The PLRA’s
exhaustion requirement is not a rule of pleading the plaintiff
must satisfy. It is an affirmative defense the defendant must
plead and prove, not appropriate for consideration under a
Fed.R.Civ.P. 12(b)(6) motion where all facts must be construed
in the light most favorable to the Plaintiff. See Anderson, 407
F.3d at 681; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
2003); Casanova v. Dubois, 304 F.3d 75, 77 (1st Cir. 2002); Ray
v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Foulk v. Charrier,
262 F.3d 687, 697 (8th Cir. 2001); Massey v. Helman, 196 F.3d
because he must wait until his death warrant
is issued to ascertain the particular
procedures that will be used in his
Instead, the State can secure an earlier
disposition of such suits simply by
prescribing definitive practices or the
orderly adoption of rules, as it already has
done to regulate animal euthanasia. The
Department, moreover, need only implement the
familiar process of agency rule-making to
ensure that the question whether its chosen
procedures for administering lethal injection
violates the Eighth Amendment ripens before
the inmate’s date of execution is set.
Given the lack of any constraints on the
Department’s discretion and of any definitive
practices that would have provided the courts
with a sufficiently concrete policy to
review, Mr. Hill’s claim did not ripen until
the execution warrant issued. From the
moment that Mr. Hill’s challenge ripened, he
has diligently pursued his claim. Mr. Hill
initially filed suit in state court, in order
to defend against an argument that he had
failed to exhaust state remedies.5 As soon
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 6 of 24
727, 735 (7th Cir. 1999); Jenkins v. Haubert, 179 F.3d 19, 28-29
(2d Cir. 1999); see also Johnson v. California, 543 U.S. 499
(2005) (assuming that the PLRA’s exhaustion requirement is
waivable); id. at 528 n.1 (Thomas, J., dissenting) (pointing out
assumption); Jackson v. District of Columbia, 254 F.3d 262, 267
(D.C. Cir. 2001) (suggesting that exhaustion is an affirmative
defense). Even if this Court construes the PLRA exhaustion
requirement as a special matter that must be pled, Fed.R.Civ.P.
9(c) allows Mr. Hill to plead generally that the condition was
satisfied and a denial of performance or occurrence must be
specifically pled with particularity.
6 Mr. Hill’s claim is no different than in cases where new
scientific DNA techniques were developed after those cases had
concluded. Just as in those cases where courts are reconsidering
prior rulings in light of subsequent scientific research, so
should Mr. Hill’s claim be considered in light of new scientific
as his action was dismissed on procedural
grounds in state court, he filed his § 1983
Plaintiff’s Motion for Temporary Injunction
to Stay His Execution Scheduled for September
20, 2006 at 6:00 p.m. at 28-31.
Clearly, Mr. Hill was diligent in filing his §1983 claim.
This Court’s order failed to acknowledge or specifically consider
the facts presented.
Of further note is that the study relied upon by Mr. Hill
was not published until April 2005, five years after the Sims
decision. This study is new. It is post-Sims.6 In addition,
Taylor and Morales are recent decisions which demonstrate
examples of how reality vastly differs from theory when grappling
with lethal injection issues. The discovery in these cases
exposed the Missouri and California procedures to be much more
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 7 of 24
inadequate than ever imagined. As none of this information was
available at the time Sims was decided, certainly Mr. Hill cannot
be faulted for failing to raise the issue.
Prior to Hill v. McDonough, Eleventh Circuit precedent
refused to recognize and thereby notice condemned prisoners that
a §1983 action could be used to challenge “[m]ethod of execution”
under the Eighth Amendment. In fact, the Eleventh Circuit had
consistently ruled that Mr. Hill, and others on Florida’s death
row, “could [not] have brought” the claim contained in the
pending §1983 action. As well, the Court’s clear holding in
Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir. 2004),
precluded such a lawsuit. Indeed, this Court initially dismissed
Mr. Hill’s claim based upon that precedent, stating that there
was no subject matter jurisdiction for this Court to consider the
claim. It was only on January 24, 2006 – when the United States
Supreme Court granted certiorari review in Hill v. Crosby to
determine whether the Eleventh Circuit Court’s determination that
district courts lack jurisdiction to consider claims like Mr.
Hill’s was correct – that the validity of this precedent was
called into question.
The Eleventh Circuit Court’s precedent was succinctly
explained in Hill v. Crosby:
It is clear to us that the district court lacked
jurisdiction to consider appellant’s claim because it
is the functional equivalent of a successive habeas
petition and he failed to obtain leave of this court to
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 8 of 24
7 Harris v. Johnson, 376 F.3d 414, 418 (5th Cir. 2004); White v.
Johnson, 429 F.3d 572, 574 (5th Cir. 2005); White v. Livingston,
126 S.Ct. 601 (2005); Patton v. Jones, 2006 WL 2468312 (10th Cir.
Aug. 25, 2006); Reese v. Livingston, 453 F.3d 289, 291 (5th Cir.
June 20, 2006).
file it. See 28 U.S.C. § 2244(b)(3)(A). And as the
panel observed in Robinson, “such an application to
file a successive petition would be due to be denied in
any event. See In re Provanzano, 215 F.3d 1233, 1235-
36 (11th Cir. 2000), cert. denied, 530 U.S. 1256, 120
S.Ct. 2710, 147 L.Ed.2d 979 (2000) (concluding that a
claim that lethal injection constitutes cruel and
unusual punishment does not meet the requirements of 28
U.S.C. § 2244(b)(2)(A) or (B)).”
437 F.3d 1084, 1085 (11th Cir. 2006)
Thus, unlike the situation in the bevy of circuit court
cases cited by this Court7, or even in Gomez v. U.S. Dist. Ct.
For N. Dist. Cal. 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293
(1992)(per curiam), there is “good reason” in this case for the
failure to present this claim previously. According to the
binding precedent of this Court when the Lancet study came out in
April of 2005, Mr. Hill could neither file a successive habeas
petition challenging the protocol employed by the State of
Florida for carrying out a lethal injection execution, nor a
§1983 complaint.
This precedent has now been definitively overruled.
However, it should have been considered by this Court as to
timeliness in evaluating the equities in determining whether to
enter a stay of execution under Gomez. This Court’s failure to
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 9 of 24
properly consider this precedent is in error, and relief is
Seemingly, in its consideration of the timeliness of Mr.
Hill’s action, this Court has improperly conflated two key issues
and the appropriate analysis for each: (1) the question of
dismissal pursuant to Rule 12(b)(6); and (2) the question of
whether to temporarily enjoin (stay) Mr. Hill’s execution. The
State of Florida based their motion to dismiss upon Rule
12(b)(6). As this Court is well aware, Rule 12(b)(6) is an
appropriate vehicle for dismissal only when the Plaintiff fails
to state a claim upon which relief can be granted. Yet the
entire procedural history of this case has been about whether Mr.
Hill has stated a viable claim under §1983. See Hill v.
McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006);
Hill v. Crosby, 437 F.3d 1084 (11th Cir. 2006).
Clearly, the United States Supreme Court found that Mr. Hill
stated a viable claim, or it would not have remanded this cause.
All that is required from Mr. Hill at this juncture is a short,
concise statement of facts. See Rule 8. The Supreme Court
specifically held that there are no heightened pleading
requirements in Mr. Hill’s §1983 action. See Hill at **53. And
the Supreme Court clearly contemplated that ripeness was not a
hinderance to Mr. Hill’s cause. As Justice Breyer stated in his
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 10 of 24
questioning of the State of Florida during oral argument in this
And so [Mr. Hill] thinks, up until the last minute,
that maybe Florida will just do it, and lo and behold,
when the death warrant is actually executed, it now
begins to appear that they won't. And therefore, at
that time, he brings the case. Now, I've spun out a
story which seems probable, that if it's true, it would
be very understandable why this wasn't ripe before the
execution warrant is issued and thereafter it is.
Hill v. McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44
(2006), Oral Argument transcript at 29.
Mr. Hill’s complaint is timely as long as he files it within
the statute of limitations, so there is no dilatoriness or
untimeliness in the filing of the lawsuit. As the district court
stated in Cooey v. Taft, it is illogical to require a deathsentenced
plaintiff to file a §1983 action any earlier than when
his execution is “imminent”:
[Because] it appears that the [lethal injection]
protocol is subject to alteration until the time of
execution . . . requiring a death-sentenced plaintiff
to file his method-of-execution challenge any sooner
[than when his death is imminent] strikes this Court as
potentially wasteful and possibly absurd, given the
possibility that, prior to his execution becoming
imminent, a plaintiff could see his conviction or death
sentence reversed, or the alteration of the precise
execution protocol that plaintiff might seek to
challenge as unconstitutional. Cooey v. Taft, No. 2:04-
cv-1156(Doc.14, at 11).
The timeliness issue is only relevant to the propriety of a
stay under Gomez, Nelson, and Hill. In terms of the viability of
Mr. Hill’s §1983 action, there is no question that Mr. Hill was
diligent, timely, and acting in accordance with established
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 11 of 24
precedent as he pursued this claim through the courts.
Therefore, this Court is clearly in error in dismissing Mr.
Hill’s claim on the basis of timeliness.
The analysis under Gomez changed when the original execution
date was stayed on January 25, 2006. In contrast to when the
Supreme Court of the United States voted unanimously to stay this
cause and grant certiorari, after the remand in January of 2006
Mr. Hill was not initially operating under an imminent execution
date. Thirty-four days after the remand, the Governor of Florida
set an execution date to “get things going in the courts,” rather
than filing a motion for remand. This action presents a different
set of equities than what this Court considered when denying Mr.
Hill’s request to stay his execution. The State of Florida’s
action, not Mr. Hill’s, abrogated Mr. Hill’s ability to
adequately develop a factual record as requested in this cause.
The State’s actions should not unduly prejudice Mr. Hill by
preventing him from pursuing his constitutional claim to the
fullest extent of the law.
Per Governor Bush’s orders, the State of Florida did not
proceed with any further death warrants while Mr. Hill’s case was
pending. The State’s “strong interest in enforcing its criminal
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 12 of 24
judgments . . .” (See Hill v. McDonough at 2104) was voluntarily
and volitionally decided to be of less importance than the issues
surrounding lethal injection. However, by now resetting Mr.
Hill’s execution date, while continuing to hold all other
warrants in abeyance, the intent of the State of Florida is
obvious – kill Mr. Hill, and prevent a reasoned review of the
torturous lethal injection process currently in place.
This new execution date changes the equitable analysis when
determining whether Mr. Hill’s claim should go forward. The
State of Florida’s conduct has only served to delay and obstruct
the proper resolution of Mr. Hill’s claims. By setting an
execution date for Mr. Hill, Florida has short-circuited the
normal course of litigation – a course of litigation which was
anticipated by the United States Supreme Court when it stayed Mr.
Hill’s execution and remanded this case. The State’s action
belies its publicly stated intent of awaiting a judicial
resolution of this matter, and evinces its true intent of not
allowing a judicial review of its lethal injection procedure.
It should be noted, however, that two Supreme Court justices
recognized that the State has a responsibility to ensure that its
execution method comports with the Constitution. As Justice
Kennedy stated in oral argument in Hill v. McDonough, “This --
this is a death case. . . . Doesn't the State have some minimal
obligation under the Eighth Amendment to do the necessary
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 13 of 24
research to assure that this is the most humane method possible?
Doesn't the State have a minimal obligation on its own to do
that?" Hill v. McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165
L.Ed.2d 44 (2006), Oral Argument transcript at 29.
Similarly, Justice Souter queried the assistant solicitor
general on what he believed to be the State’s duty to
[T]he Lancet article has been out there for a while,
and it certainly is enough to suggest. . .that there is
something problematic about the manner in which Florida
proposes to do this. And yet, we have not heard a word
that Florida has made any effort whatsoever to find an
alternative or, for that matter, to – to disprove what
the Lancet article suggests. Id. at 48.
By ordering Mr. Hill to be executed on September 20, 2006, the
State of Florida is willfully disregarding the very real
possibility that Mr. Hill will be executed cruelly, painfully,
and unconstitutionally. The State’s blatant attempt to avoid
addressing this serious constitutional and civil rights issue
significantly lessens the equitable weight that would generally
be afforded a State when an execution date is imminent. This
Court should re-weigh the equities accordingly, and find that
equitable process mandates an evidentiary hearing in this cause.
This Court originally had Mr. Hill’s case under warrant in
January 2006. Mr. Hill filed his claim on Friday, January 20,
2006, and the State of Florida filed their response the same day.
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 14 of 24
The next day, Saturday, January 21, 2006, this Court dismissed
Mr. Hill’s claim, re-characterizing the claim as a successive
habeas petition and then dismissing under AEDPA. Essentially,
this Court entertained Mr. Hill’s claim in one day.
This cause was remanded to this Court pursuant to Hill v.
McDonough, 126 S.Ct. 2096 (June 12, 2006) and Hill v. McDonough,
No. 06-10621 (11th Cir. Aug. 29, 2006), on Thursday, August 31,
2006. The CM/ECF notification of the remand occurred at 12:12
p.m. on that date. Subsequently, this Court’s staff contacted
the office of undersigned counsel at approximately 1:45 p.m. to
order that all pleadings in this matter be submitted by the
following day at noon. Undersigned counsel was at the prison
visiting death row clients, including Mr. Hill, and returned
around 5:00 p.m. to receive this Court’s order. This allowed
undersigned counsel a mere 19 hours, if he chose not to sleep, to
comply with this Court’s request. The parties complied with this
Court’s order and filed their pleadings by noon on September 1,
2006. In less than seven hours, this Court denied Mr. Hill’s
request for a preliminary temporary injunction staying the
execution – even though the execution was still nineteen days
away. This Court’s consideration and rejection of Mr. Hill’s
claims in such a short time span is not the process which Mr.
Hill is due.
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 15 of 24
The guarantee that no person shall be deprived of life,
liberty or property without due process of law is a fundamental
constitutional right that applies to both federal and state
governmental actors through the Fifth and Fourteenth Amendments
to the U.S. Constitution. The Due Process Clause applies to
federal courts, Dusenberry v. United States, 534 U.S. 161, 165
(2002), and it applies in civil as well as criminal proceedings,
e.g. Honda Motor Co. V. Oberg, 512 U.S. 415, 430-435 (1994). It
has been long established that “[a]n elementary and fundamental
requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the
circumstances, to apprise the interested parties of the pendency
of the action and to afford them an opportunity” to present their
case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950). Mr. Hill has been unjustly denied an opportunity to
present his case. The process which he is due would allow him to
present his evidence and demonstrated the unconstitutionally
cruel punishment which he faces, not a summary dismissal.
The Supreme Court of the United States contemplated more
when it held that district courts should decide the equities of a
stay in the first instance. See Gomez, 503 U.S. 653, 112 S.Ct.
1652, 118 L.Ed.2d 293 (1992)(per curiam); Nelson v. Campbell, 541
U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004); Hill v.
McDonough, 126 S.Ct. 2096 (June 12, 2006). In this case, the
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 16 of 24
efficacy of a stay would have been more appropriately determined
after assessing the discovery requests submitted by Mr. Hill
subject to the expediting of the discovery process. Instead,
this Court gave the parties less than twenty-four hours to
present their claims, and then rendered judgment on the pleadings
without the benefit of discovery. This truncated process was
utilized even though nineteen days were left before Mr. Hill’s
scheduled execution.
The nature of Mr. Hill’s case demands that he be granted a
full and fair evidentiary hearing both as to the efficacy of the
stay and the merits of his claims. An evidentiary hearing is
necessary to make certain that Mr. Hill will not be subjected to
an unconstitutionally cruel punishment, as well as to ensure
public legitimacy as the State of Florida carries out his
sentence. The highly specific factual claims advanced by Mr.
Hill plainly cannot be properly litigated without a meaningful
opportunity for discovery. This Court’s order dismissing Mr.
Hill’s claims effectively prejudges Mr. Hill’s claims as
factually meritless. That type of prejudging is highly improper
in any case, but is even more inappropriate in an Eighth
Amendment challenge to a specific means of execution.
Absent the unique and unusual circumstances of these
proceedings, Mr. Hill would indisputably have been entitled to
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 17 of 24
more time to prepare and present his case. As a result of this
Court’s ruling, Mr. Hill has been denied the opportunity to
utilize the tools of discovery, as well as the opportunity to
conduct further factual investigation into such matters as
whether Florida has a history of botched executions similar to
California. See Morales v. Hickman, 2006 WL 335427 (N.D. Cal.,
Feb. 14, 2006) reviewed at Morales v. Hickman, 2006 WL 391604
(9th Cir., 2006); Taylor v. Crawford, 2006 U.S. Dist. LEXIS
42949, 22 (June 26, 2006). In any lawsuit, much less one that is
as intensely specific and factually intensive as a challenge to
the State’s manner of execution, a rush to judgment runs contrary
to the basic dictates of due process.
Dismissal of a claim is the harshest of remedies and should
not have been ordered in this cause. Mr. Hill should have been
allowed to continue in his claim to the point of his execution,
even if this Court chose not to enter a stay. Mr. Hill could
have proceeded with his requested discovery and presumably
discovered information further supporting his claim and changing
the equities relative to a stay. At this point Mr. Hill has been
unjustly denied that opportunity.
Mr. Hill promptly sought discovery upon remand by filing
numerous discovery requests within twenty-four hours of this
cause being remanded, i.e. admissions, production,
interrogatories, etc. Additionally, he promptly sought a stay of
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 18 of 24
his execution from this Court, again within twenty-four hours, in
an attempt to ensure his ability to participate in discovery.
This Court’s order that all pleadings be submitted in this
cause within twenty-four hours of the remand, and its subsequent
dismissal of this cause the same day, eliminated Mr. Hill’s
ability to participate in discovery. The prejudice inuring from
this Court’s action is manifest. If Mr. Hill had been given even
minimal discovery and the opportunity to obtain the execution
logs and other key records, he presumably could have produced
direct evidence to prove his claims. The Morales case proves
instructive in this regard. In Morales, records regarding lethal
injection procedures in California documented a pattern of
mistakes, complications and blunders that discredited
California’s claim that five grams of thiopental would quickly
render an inmate unconscious. See Morales at 2006 WL 335427 at
*6 (“[E]vidence from Defendants’ own execution logs [shows] that
the inmates’ breathing may not have ceased as expected in at
least six out of thirteen executions by lethal injection in
California.”). As a result of Morales’ opportunity for discovery
and the presentation of evidence, he was able to discount the
testimony about the theoretical efficacy of thiopental in the
face of real world evidence. Id. at *5-6.
Mr. Hill was seeking, and would have obtained, the same type
of information regarding execution protocols. Florida’s margin
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 19 of 24
for error is significantly lower then California’s, as the State
Department of Corrections purportedly uses only two grams of
thiopental. See Sims v. State, 754 So.2d 657 (Fla. 2000).
Therefore, it is even more likely that real world mistakes,
mishaps, and complications would belie Florida’s assertions as to
the legitimacy and constitutionality of its lethal injection
procedure. A prisoner need not take on faith the statement by
prison officials that his execution will be constitutionally
compliant, and a condemned prisoner has the right to know how his
execution will be conducted. “Fundamental fairness, if not due
process, requires that the execution protocol that will regulate
an inmate’s death be forwarded to him in a prompt and timely
fashion.” Oken v. Sizer, 321 F.Supp. 658, 664 (D. Md.
2004)(considering rights of condemned inmate to review suddenly
changed protocol)(considering constitutionality of lethal
injection protocols in Maryland and collecting case), stay
vacated, 124 S.Ct. 2868 (2004); cf. Lankford v. Idaho, 500 U.S.
110, 126 n.22 (1991)(noting that when the threatened loss is
great, as when death is the result, the need for notice is even
more pronounced than in other settings). For that right to have
meaning, Mr. Hill must be allowed to challenge an execution
protocol that will subject him to the unconscionable likelihood
that he will suffer unnecessarily and inhumanely. Cf. Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14 (1950).
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 20 of 24
No injustice would have occurred had this Court allowed a
sufficiently brief period of time for discovery and an
adjudication of Mr. Hill’s claims. On the contrary, permitting
Mr. Hill the opportunity for expedited discovery and time to
fully develop his claims would have only increased the legitimacy
of these proceedings and allowed this Court to make a decision
after a full and fair hearing. Florida’s acknowledged interest
in promptly carrying out Mr. Hill’s sentence cannot override the
fundamental due process requirement that a litigant such as Mr.
Hill be given a basic adequate opportunity to develop and present
his claims. Mr. Hill is entitled to die with dignity, consistent
with the requirements of the Eighth Amendment. Neither the State
of Florida nor this Court can deny Mr. Hill a meaningful
opportunity to make his case.
This Court could have easily denied the stay and allowed Mr.
Hill’s claim to proceed with expedited discovery as he requested.
The case of Patton v. Jones is illustrative of the efficacy and
value of this process, as are Morales and Taylor. See Patton v.
Jones, 2006 U.S. Dist. LEXIS 54429 (Okla. W.D. Aug. 4, 2006)
affirmed, stay denied, Patton v. Jones, 2006 U.S. App. LEXIS
22312 (10th Cir. Aug. 25, 2006), Patton v. Jones, petition
denied, stay denied, 2006 U.S. LEXIS 5379 (Aug.29, 2006);
Morales v. Hickman, 2006 WL 335427 (N.D. Cal., Feb. 14, 2006)
reviewed at Morales v. Hickman, 2006 WL 391604 (9th Cir., 2006);
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 21 of 24
Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949, 22 (June 26,
2006). All of these cases are recent and involved lethal
injection claims where the courts denied a stay and allowed the
proceedings to continue. In these cases a determination on the
merits was made in a very limited amount of time, and enough
discovery and testimony were adduced to allow meaningful
consideration to be given to the plaintiffs’ claims.
For example, the docket sheet in Patton reveals that the
plaintiff filed a motion for preliminary injunction on July 28,
2006, and a hearing on that motion was held on August 8, 2006.
At the hearing, the State of Oklahoma introduced a new protocol
in response to plaintiff’s claims, and the Court ruled that the
protocol extant at the time the lawsuit was filed was
unconstitutional; however, the new protocol was ruled to have
sufficiently addressed plaintiff’s concerns regarding the
constitutionality of the method of execution. See Patton v.
Jones, Case No. 5:06-cv-00591-F, Docket Report & Doc. 25.
Mr. Hill previously detailed the proceedings in Taylor and
Morales in his request for a preliminary temporary injunction and
will incorporate those facts by reference. Clearly, these cases
demonstrate that it is possible to litigate and resolve lethal
injection issues quickly. It is incorrect for this Court to
assume that the parties cannot address Mr. Hill’s claims prior to
his September 20, 2006 execution date. Most importantly, it is a
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 22 of 24
blatant denial of due process to not even attempt to allow him to
present his claims.
WHEREFORE, Mr. Hill respectfully requests this Court
reconsider its Order Dismissing Complaint, deny Defendant’s
Amended Motion to Dismiss for Failure to State a Cause of Action
Upon Which Relief Can Be Granted; and Response and Memorandum of
Law to Request for Stay or Injunction, issue a temporary
injunction staying Mr. Hill’s execution, order expedited
discovery, and allow Mr. Hill’s § 1983 action to be fully and
fairly litigated without an imminent execution date looming.
Respectfully submitted,
/s/ D. Todd Doss
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
Facsimile (386) 755-3181
I certify that a copy of the foregoing document has been served
on the following counsel via electronic filing on this 5th day of
September 2006.
/s/ D. Todd Doss
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 23 of 24
Copies furnished to:
Carolyn Snurkowski
Assistant Attorney General
Office of the Attorney General
Plaza Level 1
The Capitol
Tallahassee, FL 32399
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 24 of 24