Doyle Hamm challenges the constitutionality of Alabama's method of execution, not generally, but as applied to him. (Doc. 15 at 1-2). As the Supreme Court of the United States has repeatedly said, "because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out." Glossip v. Gross , --- U.S. ----,
In this country, the chosen method of execution has evolved as social mores have changed. See Baze v. Rees ,
Mr. Hamm contends that, as applied to him, Alabama's method of execution- intravenous lethal injection-crosses the line
To avoid such a gruesome scenario, Mr. Hamm suggests an alternative method of lethal injection: an "oral injection" of death-causing drug or drugs. He seeks not a total injunction prohibiting his execution, but an injunсtion of execution by intravenous injection.
Defendants, who control Mr. Hamm's access to medical treatment and evaluation, argue that Mr. Hamm has not presented any medical proof that his condition has deteriorated as he asserts. Further, they argue that he has not proven that his proposed alternative method of execution is appropriate or available. As a result, they seek summary judgment.
Too many unanswered questions in the current record preclude a determination of the issues before the court. The heart of this case centers on Mr. Hamm's current medical status, particularly the condition of his peripheral veins, lymphoma, and potential lymphadenopathy. Because Defendants control his access to medical care, Mr. Hamm cannot be faulted for being unable to present a definitivе evaluation to the court. Without knowledge of his current medical condition, the court cannot answer the many questions raised by Mr. Hamm's request for an injunction or by Defendants' motion for summary judgment.
The looming February 22, 2018, execution date leaves insufficient time to resolve these unknowns. But Mr. Hamm has provided enough evidence to create genuine issues of material fact about his as-applied claim. As a result, based on the record as it currently exists, Mr. Hamm has shown a substantial likelihood of success on the merits, and the court finds that the execution date must be stayed pending an independent medical examination of Mr. Hamm.
After allowing testimony and argument at a January 31, 2018 hearing, the court announced its decisions: (1) to deny summary judgment as to Defendants' timeliness challenge of Mr. Hamm's as-applied claim because genuine issues of material fаct exist about when his cause of action accrued; (2) to deny Defendants' motion for summary judgment as to the merits of Mr. Hamm's as-applied claim; (3) to deny as premature Defendants' motion for summary judgment as to the merits of Mr. Hamm's other Eighth Amendment claim; and (4) to grant a temporary and limited stay of execution. The court now memorializes those rulings in a written opinion and order.
First, the court WILL DENY Defendants' motion for summary judgment as to the timeliness of Mr. Hamm's as-applied claim. The court finds that genuine issues of material fact exist about whether and when Mr. Hamm's medical condition worsened to a degree that gave rise to his as-applied
Second, the court WILL DENY Defendants' motion for summary judgment as to the merits of Mr. Hamm's as-applied claim because he has created genuine issues of material fact about whether Alabama's method of execution is sure or very likely to cause him needless suffering and whether a feasible, readily implemented alternative method of execution exists that would significantly reduce a substantial risk of severe pain.
Third, the court WILL DENY AS PREMATURE Defendants' motion for summary judgment as to the merits of Mr. Hamm's other Eighth Amendment claim because the parties have not yet had an opportunity to engage in discovery about that claim.
Fourth, the court RESERVES RULING on Mr. Hamm's request for a preliminary injunction enjoining Defendants from executing him by intravenous injection, because the record is too sparse for the court to decide whether, as applied to Mr. Hamm, execution by intravenous injection would violate his right to be free from cruel and unusual punishment. But the court WILL STAY the execution for the purpose of obtaining an independent medical examination and opinion concerning the current state of Mr. Hamm's lymphoma, the number and quality of peripheral venous access, and whether any lymphadenopathy would affect efforts to obtain central line access. The results of that examination will determine whether the stay should be extended for discovery on other issues raised by Mr. Hamm's amended complaint.
I. PROCEDURAL HISTORY
This matter is before the court on Plaintiff's request for a preliminary injunction (doc. 15 at 44) and Defendants' renewed motion for summary judgment (doc. 16).
In 1987, Mr. Hamm was convicted in Alabama of robbery-murder and sentenced to death. See Hamm v. Comm'r, Ala. Dep't of Corr. ,
On June 23, 2017, the State moved the Alabama Supreme Court to set Mr. Hamm's execution date. (Doc. 12-1). On August 8, 2017, on the Alabama Supreme Court's order, Mr. Hamm filed an answer requesting that the court allow Dr. Mark Heath to examine Mr. Hamm before deciding the State's motion to set an execution date. (Doc. 12-2). Dr. Heath completed that examination on September 23, 2017, and on December 13, 2017, the Alabama Supreme Court entered an order setting Mr. Hamm's execution for February 22, 2018. (Doc. 15-1 at 2; Doc. 14-17). On the same day that the Alabama Suрreme Court entered that order-December 13, 2017-Mr. Hamm filed his initial § 1983 complaint. (Doc. 1).
Because Mr. Hamm's complaint contained a request for preliminary injunctive relief, the court immediately set a hearing.
II. BACKGROUND FACTS
1. Medical Terminology
Before discussing the disputеd and undisputed facts, the court must set out some medical terms. Under Alabama's lethal injection protocol, lethal injection is performed by "peripheral venous access" or, if peripheral venous access is not possible, by "central line placement." Peripheral venous access requires insertion of a catheter into one of the peripheral veins in the arms, hands, legs, or feet. Central line placement is insertion of a catheter into the jugular vein in the neck, the subclavian vein near the clavicle, or the femoral vein in the groin. According to Dr. Heath, the anesthesiologist who testified on Mr. Hamm's behalf, to obtain a central line, the practitioner must apply local anesthesia ; insert a small needle into the vein; thread a wire through the needle into the vein; withdraw the needle while leaving the wire in place; cut a small opening, large enough to allow the catheter to enter the body, in the patient's flesh near the entry place for the wire; thread the catheter along the wire and into the vein; withdraw the wire; and suture the skin closed over the catheter. In the absence of an emergency, the practitioner should use an ultrasound to monitor the placement of the needle, the wire, and the catheter.
Another set of important medical terms is lymphoma and lymphadenopathy. Lymphoma is a blood cancer, and lymphadenopathy is enlargement of lymph nodes. A number of things can cause lymphadenopathy, including lymphoma and "less common illnesses." Lymphadenopathy, Taber's Medical Dictionary Online, https://www.tabers.com/tabersonline/view/Tabers-Dictionary/768963/all/lymphadenopathy ?q=lymphadenopathy ; (Doc. 15-1 at 4). Dr. Heath attests that lymphoma is a progressive disease, meaning that a past diagnosis of lymphoma can indicate "significant involvement and enlargement of lymph nodes in other areas of [Mr. Hamm's] body, including his neck, chest, and groin." (Doc. 15-1 at 4). According to Dr. Heath's testimony, lymphadenopathy can greatly complicate central line access because the largest clusters of lymph nodes are located around the jugular, femoral, and subclavian veins. Swelling of those lymph nodes can distort the tissues surrounding the veins, making accessing those veins more difficult.
2. Alabama's Lethal Injection Protocol
Alabama's confidential, sealed lethal injection protocol provides that, as soon as possible after arrival at Holman Correctional Facility, where all Alabama executions occur, a physician will make an assessment of the inmate's vein structure. An IV team will also view the inmate's vеins before the execution. Aside from non-medical staff, two trained medical professionals, usually Emergency Medical Technicians ("EMTs"), and, as needed, one physician, are part of the IV team.
On the day of the execution, two IV lines will be placed in the inmate's veins. If the IV team cannot access peripheral veins,
The lethal injection protocol describes the process by which the remaining IV team member-who is not one of the trained medical professionals-can check whether the inmate is conscious after the Warden has started administering the midazolam hydrochloride. But the protocol does not describe how long the IV team may attempt to obtain peripheral access, how many times the team may attempt peripheral venous access, how the team determines if peripheral access is unobtainable, or what sort of medical equipment or medical specialist is available in the event the team must attempt to obtain a central line.
3. Mr. Hamm's Medical History
No one disputes that Mr. Hamm has a long and complicated medical history, which includes intravenous drug use, hepatitis C, and a 2014 diagnosis of B-cell lymphoma with a tumor behind Mr. Hamm's left eye. And no one disputes that Mr. Hamm's history of intrаvenous drug use complicates the accessibility of his peripheral veins. Instead, the essential factual disputes in this case revolve around (1) whether, despite the undisputed inaccessibility of many peripheral veins, Mr. Hamm still has enough good quality peripheral veins for the State to execute him using the procedures described in its confidential lethal injection protocol; (2) when, if ever, Mr. Hamm's lymphoma went into remission; (3) whether Mr. Hamm is currently experiencing lymphadenopathy ; and (4) when, if at all, the condition of Mr. Hamm's veins worsened to an extent to give rise to his as-applied challenge.
In April 2014, a doctor conducted a CT scan of Mr. Hamm's abdomen and found "[n]o pathologically enlarged lymph nodes." (Doc. 14-4 at 18). But a May 2014 report from another doctor reported "numerous abnormal lymph nodes" in Mr. Hamm's chest. (Doc. 14-3 at 6). The рhysician noted, however, that "[t]here [were] no palpable nodes in the cervical, supraclavicular [above the clavicle], axillary [armpit], or inguinal [groin] areas." (Id. at 7). The court notes that a lack of palpable lymph nodes does not prove a lack of lymphadenopathy ; Dr. Heath testified that lymphadenopathy can occur internally in areas that a physician would not be able to feel by palpation.
Although physicians noted potential lymph node issues in those 2014 reports, Mr. Hamm never received any further medical examinations or treatment relating to those issues. (Doc. 19-1 at 1). And according to Dr. Charles Blanke, an oncologist who testified on Mr. Hamm's behalf, "[b]ased on the medical consultations done to date, it is impossible to state with any degree of certainty whether or not [Mr. Hamm] has active lymphoma overall." (Id. at 2).
Mr. Hamm, in an affidavit, stated that since March or April 2017, nurses at Donaldson Correctional Facility had been able to draw blood only by using a small butterfly needle on a vein in his right hand. (Doc. 14-6 at 1). He attests that they "have had problems drawing blood from there," but it is the only vein from which they have had any success drawing blood. (Id. at 1-2). He states that in October and November 2017, nurses had unsuccessfully tried to draw blood from his hands, arms, and legs, "each time pricking [him] about 4 or 6 times." (Id. at 2). By contrast, nurses from
On March 4, 2017, around the same time that Mr. Hamm noticed nurses having difficulty drawing blood, he also submitted a sick call request stating "need to see the doctor. I have lumps in my chest...." (Doc. 14-4 at 12). On March 5, 2017, a nurse noted four "knots" on Mr. Hamm's chest near his clavicle, armpits, and above his navel. (Id. at 11). Dr. Roy Roddam, a prison physician, filled out a "progress note" on March 7, 2017, stating that Mr. Hamm was complaining of "mildly tender" knots on his chest. (Id. at 10). The handwriting is difficult to read, but appears to say that Mr. Hamm had "subcutaneous nodules" below the right clavicle and chest, among other areas. (Id. ). Dr. Roddam wrote: "These feel like lymph nodes but could be [illegible] as their lоcation is against lymphadenopathy." (Id. ). Dr. Roddam noted the need for an X-ray and wrote "may need biopsy if continues to enlarge." (Id. ). The record before the court on the motion for summary judgment contains no information about any X-ray or follow-up.
Dr. Heath examined Mr. Hamm on September 23, 2017. (Doc. 15-1). The Donaldson Correctional Facility staff would not permit him to bring in his medical equipment, but he reports that "Mr. Hamm has extremely poor peripheral venous access." (Id. at 3). He states that Mr. Hamm has no usable peripheral veins on his left arm and hand or either of his legs or feet. (Id. ). On his right hand, he has one "small, tortuous vein...that is potentially accessible with a butterfly needle." (Id. ). Dr. Heath could not evaluate the accessibility of Mr. Hamm's jugular, supraclavial, or femoral vein because he lacked medical equipment. (Id. at 4).
Prison physician Dr. Roddam аttests that he conducted a medical examination of Mr. Hamm on January 2, 2018, and found "no evidence of lymphadenopathy in the cervical, supraclavical, or axillary areas of Mr. Hamm's body." (Doc. 12-4 at 2). But Dr. Roddam's affidavit does not state whether he conducted any imaging tests, or merely palpated those areas of Mr. Hamm's body. Dr. Roddam also states that, in his opinion, "Mr. Hamm has two superficial veins in his right wrist that would be available for venous access." (Id. ). Finally, and in contrast to almost every other medical professional who has examined Mr. Hamm, prison nurse Dennis Butler attests that Mr. Hamm has numerous peripheral veins suitable for peripheral intravenous access with a catheter. (Doc. 12-5 at 2).
4. Proposed Alternative Method of Execution
Mr. Hamm proposes, as an alternative method of execution, "oral injection" of either:
(1) 10 grams of secobarbital ; or (2) "DDMP II," which is cоmposed of 1 gram of diazepam, 50 milligrams of digoxin, 15 grams of morphine sulfate, and 2 grams of propranolol. (Doc. 15 at 23). The proposed alternative procedure follows the procedure used under Oregon's Death with Dignity Act. Dr. Blanke, who specializes in end-of-life care and medical-aid-in-dying,
Dr. Blanke described a method of administering the proposed alternative drugs: a nasogastric tube, which is a thin tube placed up the nasal cavity and down into the stomach. He testified that the drug or drug combination would be placed into a syringe, which would then be inserted into the end of the nasogastric tube. The person administering the drugs would compress the plunger of the syringe, pushing the fluid through the tube and directly into the stomach; i.e. , the drugs would be injected into the person through the nasogastric tube. He testified that patients lose consciousness within five minutes and die within twenty-five minutes.
III. DISCUSSION
The court has before it Mr. Hamm's request for preliminary injunctive relief enjoining Defendants from executing him using intravenous injection. (Doc. 15 at 44). The court also has before it Defendants' motion for summary judgment on Mr. Hamm's amended complaint. (Doc. 16). The court will address Defendants' motion for summary judgment first, followed by Mr. Hamm's request for injunctive relief. Finally, the court will discuss the need for a brief stay of execution, even though Mr. Hamm has not requested one.
1. Motion for Summary Judgment
Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). When a district court reviews a motion for summary judgment it must determine two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to judgment as a matter of law.
Mr. Hamm raises two claims in his amended complaint. (Doc. 15 at 21, 30). Defendants move for summary judgment, contending that the statute of limitations and the equitable doctrine of laches bar his amended complaint, and that Mr. Hamm has failed to create a genuine issue of material fact about a substantial risk of serious harm to him or about a known and available alternative method of execution. (Doc. 16; Doc. 12 at 26-35; Doc. 18 at 19-30).
The court notes that, because Mr. Hamm's execution is scheduled for February 22, 2018, it expedited briefing and submission of evidence. Neither party has had an opportunity to conduct discovery. The court finds thаt, based on the record that currently exists, genuine issues of material fact exist about whether Mr. Hamm's amended complaint is timely filed and whether Alabama's method of execution is unconstitutional as applied to him . But the court notes that once Mr. Hamm has had an independent medical examination and/or once the parties have had an opportunity to conduct discovery, evidence may negate the genuine disputes of material fact that currently exist.
a. Statute of Limitations
Defendants contend that, under binding Eleventh Circuit precedent, Alabama's two-year statute of limitations bars Mr. Hamm's complaint. (Doc. 12 at 20). They contend that his claim accrued no later than July 2004, two years after Alabama adopted its current execution protocol. (Id. at 20-22). And they contend that Mr. Hamm's unique medical condition does
Because Mr. Hamm's as-applied claim challenges Alabama's method of execution, Alabama's two-year statute of limitations for personal injury actions applies to that claim. Boyd v. Warden, Holman Corr. Facility ,
But Mr. Hamm does not raise a facial challenge to Alabama's method of execution. Instead, Mr. Hamm contends that, because of his unique medical condition, which arose years after the limitations period for a facial challenge expired, Alabama's method of execution is unconstitutional as applied to him . The Eleventh Circuit has indicated that the triggering date for an as-applied challenge is different from the triggering date for a facial challenge.
For example, in Siebert v. Allen , the plaintiff raised a facial challenge to Alabama's method of execution, and while his lawsuit was pending, he received a diagnosis of hepatitis C and pancreatic cancer.
And in Gissendaner v. Commissioner, Georgia Department of Corrections , the Eleventh Circuit affirmed the dismissal as untimely of a plaintiff's as-applied claims because "they rely on factual conditions that have not changed in the past twenty-four months."
Mr. Hamm filed his complaint on December 13, 2017. So the question is whether Mr. Hamm's as-appliеd claim accrued within the preceding two years; i.e. , after December 13, 2015. Mr. Hamm contends that his peripheral vein access worsened in the spring of 2017, meaning that Defendants would have to resort to a central line to execute him; but his lymphadenopathy makes central line placement extremely risky. If that contention is true, then his as-applied challenge is timely.
The court finds that genuine disputes of material fact exist about whether and, if so, when Mr. Hamm's medical condition changed in a way that gave rise to his as-applied challenge. Mr. Hamm states in a sworn affidavit that nurses at Donaldson began having trouble even drawing blood-a process that is easier than inserting a catheter-starting in March or April 2017. (Doc. 14-6). That affidavit is sufficient
Defendants contend that "Hamm provides no evidence, outside of his self-serving affidavit , to support" the assertion that his peripheral venous access began manifesting in 2017. (Doc. 18 at 6 n.1) (emphasis added). But as the en banc Eleventh Circuit reminded us a few days ago, "an affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated ." United States v. Stein , slip op. 16-10914, at 2 (11th Cir. January 31, 2018) (en banc) (emphasis added); see also Feliciano v. City of Miami Beach ,
Defendants argued at the hearing that the court should disregard Mr. Hamm's affidavit because it is a sham affidavit. "The Eleventh Circuit, in limited circumstances, allows a court to disregard an affidavit as a matter of law when, without explаnation, it flatly contradicts his or her own prior deposition testimony for the transparent purpose of creating a genuine issue of fact where none existed previously." Furcron v. Mail Centers Plus, LLC ,
The court also notes that genuine disputes of material fact exist about how many of Mr. Hamm's peripheral veins are accessible for drawing blood. Dr. Heath says Mr. Hamm might have one vein; Dr. Roddam says Mr. Hamm has two; and Mr. Butler says Mr. Hamm has multiple accessible veins. But as Dr. Heath testified, veins that are aсcessible for drawing blood may not be accessible for inserting an intravenous catheter. Even if Mr. Hamm has peripheral veins that can support insertion of a butterfly needle for the purpose of drawing blood, the court finds a genuine dispute of material fact about whether peripheral venous access exists for the purpose of inserting an intravenous catheter.
Next, the court finds the existence of a genuine dispute of material fact about whether Mr. Hamm's lymphoma is active and whether he is currently experiencing lymphadenopathy. According to Dr. Heath, lymphoma is a progressive disease. According to the medical records available to the court on this motion for summary judgment, aside from the tumor in his head, Mr. Hamm has received no medical treatment for his lymphoma since 2015 at the latest. It is not a stretch to infer that an untreated (and unmonitored) progressive disease could worsen over the course of time and finally manifest in later years.
The court finds that Mr. Hamm presented sufficient evidence to create a genuine dispute of material fact about whether the cumulative effect of his lymphoma, history of intravenous drug use, and untreated abnormal lymph nodes in his chest and abdomen resulted in worsened peripheral
b. Laches
Defendants contend that, even if Mr. Hamm's complaint is timely under the statute of limitations, the court should dismiss it based on the doctrine of laches because Mr. Hamm unreasonably delayed filing his complaint, causing the State undue prejudice. (Doc. 12 at 9-10).
The court finds that, if Mr. Hamm's condition truly worsened in March 2017, a nine-month delay is not unreasonable in this case, especially in light of his efforts to exhaust his claim. Mr. Hamm contends that, based on principles of federalism and comity, he could not have filed his § 1983 complaint until after the Alabama Supreme Court rejected his as-applied claim. And the Alabama Supreme Court requested Mr. Hamm's response to the State's motion to set an execution date.
Indeed, the Supreme Court in Nelson v. Campbell stated that the Prison Litigation Reform Act, which applies to death sentenced inmates challenging the method of their execution, "requires that inmates exhaust available state administrative remedies before bringing a § 1983 action challenging the conditions of their confinement."
In addition, the court notes that, despite the diligent efforts of Mr. Hamm's counsel to obtain Mr. Hamm's medical records from Defendants, they did not provide those medical records to him until June 2017. Nor did Defendants permit Dr. Heath to examine Mr. Hamm until September 2017. It was not unreasonable for Mr. Hamm to wait to file his complaint until he had some evidence to support his allegations. Because laches is an equitable doctrine, and the equities in this case play both ways, the court WILL DENY Defendants' motion to dismiss Mr. Hamm's complaint based on laches.
c. Merits
"The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the infliction of 'сruel and unusual punishments.' " Glossip v. Gross , --- U.S. ----,
Alabama Code § 15-18-82.1 provides that "[a] death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution."
To prevail on an Eighth Amendment challenge to a State's method of execution, a prisoner must demonstrate that
Glossip 's 'known and available' alternative test requires that a petitioner must prove that (1) the State actually has access to the alternative; (2) the State is able to carry out the alternative method of execution relatively easily and reasonably quickly; and (3) the requested alternative would in fact significantly reduce a substantial risk of severe pain relative to the State's intended method of execution.
A genuine dispute of material fact exists about whether Mr. Hamm has adequate peripheral venous access to allow Defendants to execute him without resorting to a central line. And a genuine dispute of material fact exists about whether Mr. Hamm has lymphadenopathy in areas of his body that would make a central line placement extremely dangerous. As a result, the court finds that a gеnuine dispute of material fact exists about whether executing Mr. Hamm using the intravenous injection method described in Alabama's lethal injection protocol "presents a risk that is 'sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.' " Glossip ,
Mr. Hamm has offered two alternative methods of execution: (1) 10 grams of secobarbital ; or (2) "DDMP II," which is composed of 1 gram of diazepam, 50 milligrams of digoxin, 15 grams of morphine sulfate, and 2 grams of propranolol. (Doc. 15 at 23). Dr. Blanke, a physician who specializes in medical-aid-in-dying, attests that he has used those methods for patients in Oregon. (Doc. 15-3). He attests that they cause death in "more than 99% of cases" and that complications are "extremely rare." (Id. at 1-2).
The court finds that, if Mr. Hamm can prоve the inaccessibility of his peripheral and central veins, his proposed alternative "significantly reduce[s] a substantial risk of severe pain." Arthur ,
Defendants contend that Mr. Hamm's alternative is not feasible or readily implemented because Mr. Hamm would have to drink either of the proposed drug combinations, so they cannot be considered "lethal
As Dr. Blanke testified and as Taber's Medical Dictionary states, the medical definition of "injection" does not require a needle piercing the body; it requires only "[t]he forcing of a fluid into a vessel, tissue, or cavity ." Injection, Taber's Medical Dictionary Online, https://www.tabers.com/tabersonline/view/Tabers-Dictionary/757723/all/injection?q=injection (emphasis added). Non-medical dictionaries appear to agree. See Inject, Merriam-Webster's Dictionary, https://www.merriam-webster.com/dictionary/injecting ("[T]o force a fluid into"); Inject, Oxford English Dictionary, http://www.oed.сom/view/Entry/96079?redirectedFrom=inject#eid ("To drive or force (a fluid, etc.) in a passage or cavity, as by means of a syringe, or by some impulsive power; said esp. of the introduction of medicines or other preparations into the cavities or tissues of the body.").
The court finds that administration of the proposed alternative drugs through a nasogastric tube would comply with Alabama's statute requiring execution by "lethal injection" because it would involve forcing the liquid into Mr. Hamm's body. But the court also finds that, even if Alabama's statute requiring "lethal injection" required a needle piercing the inmate's skin, Mr. Hamm has presented sufficient evidence to create a genuine issue of material fact about whether that type of "lethal injection" would be unconstitutional as applied to him . As a result, even if administration of the drugs by nasogastric tube is not statutorily allowed under Alabama law, the court finds that, at this stage , Mr. Hamm has presented sufficient evidence to defeat summary judgment. The court WILL DENY summary judgment as to Mr. Hamm's as-applied claim.
The court notes that Mr. Hamm raised an Eighth Amendment deliberate indifference claim in his amended complaint, which he filed during the expedited briefing schedule on his initial complaint. The court finds that ruling on Defendants' motion as to Mr. Hamm's second claim would be premature because the parties have not had an adequate opportunity to conduct discovery. See WSB-TV v. Lee ,
2. Request for Injunctive Relief
Mr. Hamm has not moved this court to stay his execution, but he does seek an injunction enjoining Defendants from executing him by intravenous injection. (Doc. 15 at 44). But "[t]he standard for granting a temporary restraining оrder or a stay of execution is the same." Gissendaner ,
The court reserves ruling on Mr. Hamm's request for preliminary injunctive relief because the court lacks sufficient information to determine whether execution by intravenous injection would violate
As a result, although the court declines to enter a preliminary injunction at this time, the court will enter a stay of execution so that an independent medical examiner can be appointed to examine Mr. Hamm and report to thе court about his current medical condition. The court acknowledges that Mr. Hamm has not requested a stay of execution, but the court sua sponte finds that a stay is necessary. See Grayson v. Allen ,
The court has considered the equities and has concluded that, under the information currently available to Mr. Hamm and to the court, he has shown a substantial likelihood of success on the merits, a risk that he will suffer irreparable injury absent a stay, no substantial risk of harm to Defendants, and that the stay would not be adverse to the public interest.
As discussed above, Mr. Hamm has created genuine issues of material fact about whether Alabama's method of execution is unconstitutional as applied to him in light of his unique medical conditions. If, with the benefit of discovery, he can substantiate the inferences the court was required to draw in his favor at the summary judgment stage, he would prevail on his as-applied claim. At this stage, Mr. Hamm has shown a substantial likelihood of success on the merits. The risk that Mr. Hamm will suffer irreparable injury absent a stay is self-evident, and the court will not dwell on it.
The court will, however, briefly dwell on the risk of harm to Defendants. The State of Alabama has a legitimate interest in carrying out the execution of Mr. Hamm's sentence. The family of Mr. Hamm's victim also has a significant interest in the execution of Mr. Hamm's sentence. The court is mindful of those important considerations. But thе court notes that both of those interests will be satisfied; Mr. Hamm will be executed, either by intravenous injection or by "oral injection."
The court has also considered whether a stay would be adverse to the public interest. The court finds that, in this case, a stay could not be adverse to the public interest. The public interest requires constitutional punishments. An execution that is carried out in a cruel and unusual manner is decidedly adverse to the public interest.
Finally, the court has considered the " '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
As soon as possible after the entry of this opinion and order, the court will appoint an independent medical examiner who will examine Mr. Hamm and report the medical findings back to the court. The medical examiner will evaluate the accessibility of Mr. Hamm's peripheral veins as well as the current status of his lymphoma and whether he is currently experiencing lymphadenopathy, or any medical condition that would interfere with Mr. Hamm's execution by lethal intravenous injection. Once the court has received the medical examiner's report, the court will reevaluate the necessity for a stay or a preliminary injunction.
IV. CONCLUSION
The court WILL DENY Defendants' motion for summary judgment on timeliness grounds. The court WILL DENY Defendants' motion for summary judgment on the merits of Mr. Hamm's as-applied claim. The court WILL DENY AS PREMATURE Defendants' motion for summary judgment on the merits of Mr. Hamm's other Eighth Amendment claim. The court RESERVES RULING on Mr. Hamm's request for a preliminary injunction. The court WILL STAY Mr. Hamm's execution.
DONE and ORDERED this 6th day of February, 2018.