Montgomery v. Barr

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

LISA MONTGOMERY, §

§

Plaintiff, §

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v. § Civil Action No. 4:20-cv-01281-P

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WILLIAM P. BARR et al., §

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Defendants. §

OPINION AND ORDER

Before the Court is Plaintiff Lisa Montgomery’s Amended Motion for Preliminary

Injunction (“Amended Motion”), in which she asks the Court to bar her transfer to the

Bureau of Prison’s (“BOP”) facility in Terre Haute, Indiana where she will be executed on

January 12, 2021. See ECF No. 53. Defendants William P. Barr, Attorney General of the

United States in his official capacity; the Federal Bureau of Prisons (“BOP”); Michael

Carvajal, Director of the BOP in his official capacity; Michael Carr, Warden of Federal

Medical Center Carswell (“FMC Carswell” or “Carswell”); T.J. Watson, Warden of

Federal Correctional Complex Terre Haute (“FCC Terre Haute” or “Terre Haute”) in his

official capacity; Rick Winter, BOP Regional Counsel for the North Central Region in his

official capacity; and Alix M. McLearen, BOP National Administrator of Women and

Special Populations in her official capacity, respond that they plan to transport

Montgomery to a separate execution building at BOP’s FCC Terre Haute facility one to

two days before her scheduled execution where she will be the sole inmate in the execution

facility until her execution is carried out. See generally Original Response (“Orig. Resp.”),

ECF No. 23.

Despite the parties’ lengthy briefing, the issue that Montgomery presents is

straightforward. Based on past sexual abuse by males and her associated mental health

conditions as a result of such abuse, Montgomery claims it would be discriminatory to be

transferred from FMC Carswell to FCC Terre Haute—an all-male prison facility with some

male BOP staff supervising her—for forty-eight hours prior to her execution. Thus,

Montgomery asks the Court to enjoin the BOP from transferring her to FCC Terre Haute

and require that Montgomery’s execution take place at FMC Carswell. While the Court is

not unsympathetic to Montgomery’s concerns, as explained more fully below, the Court

finds them unsupported by law and fact as Montgomery will be the only prisoner in the

FCC Terre Haute execution facility for a duration of forty-eight hours prior to execution,

she will be observed by male and female BOP staff members, and she will have access to

an on-call BOP doctor and psychologist. Therefore, because Montgomery has not alleged

sufficient facts to establish an arguable violation of her federal constitutional rights and

because the applicable law forecloses her federal statutory claims, the Court holds that

Montgomery’s Amended Motion for Preliminary Injunction should be and hereby is

DENIED and her amended complaint DISMISSED without prejudice.

BACKGROUND

At the onset, Montgomery objects to Defendants’ recitation of the facts relevant to

her underlying criminal conviction and capital sentence, but as shown below these facts

form the background necessary to understand the case and claims considered within this

Order. Indeed, given the nature of Montgomery’s claims, the Court cannot consider certain

facts in a vacuum. Montgomery’s objection is OVERRULED.

A. Lisa Montgomery’s Background

Lisa Montgomery experienced severe, continuous sexual and physical abuse at her

stepfather’s hands beginning in her early childhood. United States v. Montgomery, 635

F.3d 1074, 1081 (8th Cir. 2011); Amended Complaint (“Am. Comp.”) at 2–3, ECF No. 43.

When she turned eighteen, Montgomery married Carl Boman, her stepbrother, who she

alleges subjected her to further sexual abuse. Montgomery, 635 F.3d at 1081; Am. Comp.

at 3. Together they had four children, after which she underwent tubal fulguration, a

sterilization procedure that involved occluding her fallopian tubes by cauterization,

rendering her incapable of having children as confirmed by a pretrial hysterosalpingogram.

Montgomery, 635 F.3d at 1079, 1081.

In the years following her procedure, Montgomery claimed that she had four more

pregnancies. Id. at 1081. During a period of separation from Boman in 1994, Montgomery

had an affair and claimed that she was pregnant, but she ceased making that claim once

they reconciled. Id. The two later divorced. Id.

Montgomery later met her second husband, Kevin Montgomery (“Kevin”), who she

did not tell about the sterilization procedure. Id. at 1079. In 2000, while the two were still

dating, she claimed that she was pregnant and planned to get an abortion. Id. at 1081. Kevin

gave her forty dollars for the abortion, after which the “pregnancy” was not mentioned

again. Id. Two years later, Montgomery informed her friends and family that she was

pregnant again, claiming that she received prenatal care from her physician but forbidding

Kevin from attending the appointments. Id. The physician testified that he treated

Montgomery for ankle pain and a cold but that he provided no prenatal care whatsoever.

Id. When the alleged due date passed, Montgomery claimed that the baby died and that she

donated the body to science. Id.

B. The Murder of Bobbie Jo Stinnett

Montgomery met her victim, Bobbie Jo Stinnett, at a dog show in April 2004. Id. at

1079. The two bred rat terrier dogs and met through online message boards dedicated to as

much. Id. Stinnett maintained a website to promote her dog breeding business located in

her home in Skidmore, Missouri. Id. The website included pictures of Stinnett and her dogs.

Id. In spring 2004, Stinnett announced her pregnancy to her online community, which

included Montgomery. Id.

In spring 2004, Montgomery began telling her friends, family, and online

community that she was pregnant. Id. Montgomery reported testing positive for pregnancy,

began wearing maternity clothes, and began behaving as if she were pregnant. Id. Still

unaware of her sterilization, Kevin and her children believed her. Id. Some of

Montgomery’s acquaintances believed that she was pregnant and showed signs of

pregnancy, but others did not. Id. Those who knew that Montgomery had been sterilized—

including Boman and his wife—accused her of deceiving her family. Id. She responded

that she would prove them wrong. Id.

Montgomery contacted Stinnett using an alias on December 15, 2004, expressing

interest in one of her puppies and agreeing to meet at her home the next day. Id.

Montgomery then drove to Stinnett’s home at the appointed time, carrying with her in her

jacket a sharp kitchen knife and a white cord. Id. After playing with the puppies outside,

the women entered the home. Id. Stinnett was eight months pregnant at the time. Id.

Sometime between 2:30 p.m. and shortly after 3:30 p.m., Montgomery attacked

Stinnett, using the cord to strangle Stinnett until she was unconscious. Id. She then used

the kitchen knife to cut into Stinnett’s abdomen, causing her to regain consciousness. Id.

A struggle ensued, and Montgomery strangled Stinnett a second time, killing her. Id. at

1079–80. Montgomery then extracted the premature baby from Stinnett’s mutilated body,

cut the umbilical cord, and fled the scene. Id. at 1080. Shortly thereafter, Stinnett’s mother

found her daughter lying on the living room floor, covered in blood. Id. She said that

Stinnett’s stomach looked like it had exploded. Id.

Following the murder and kidnapping, Montgomery placed the infant in a car seat,

told Kevin that she gave birth at a women’s clinic, and returned home pretending that the

child was hers. Id. Shortly thereafter, she confessed to the crime and the child was safely

returned to the father. Id.

C. The Trial

At trial, Montgomery asserted an insanity defense premised upon the evaluations of

defense mental health experts Drs. Vilayanur Ramachandran and William Logan, both of

whom diagnosed her with depression, borderline personality disorder, post-traumatic stress

disorder, and pseudocyesis. Id. at 1082. The American Psychiatric Association’s

Diagnostic and Statistical Manual’s revised fourth edition defines pseudocyesis as a

somatoform disorder associated with a false belief of being pregnant associated with

objective signs of pregnancy, including physiological changes. Id.

Dr. Ramachandran testified that Montgomery suffered from a severe pseudocyesis

delusion and was in a dissociative state when she killed Stinnett and delivered the baby.

Id. at 1083. In his opinion, her history of childhood sexual abuse and post-traumatic stress

disorder predisposed her for pseudocyesis and that she maintained her delusion through

internet research on cesarean sections, home birth, and related topics, as well as her

purchases of maternity clothes, a home birth kit, and a baby nursery. Id. Though the details

of her delusion fluctuated, Dr. Ramachandran believed that changes in Montgomery’s

delusional state were designed to accommodate the delusion and not signs of malingering,

which he defined as a planned volition or lie. Id. at 1083–84.

The Government’s mental health expert, Dr. Park Dietz, disagreed, testifying that

Montgomery did not have a sincere belief that she was pregnant and therefore did not suffer

from pseudocyesis at the time of the murder. Id. at 1083. He cited evidence showing

Montgomery was well aware she had undergone sterilization, she did not seek medical

confirmation of her 2004 pregnancy, she did not seek prenatal care in 2004 as she had in

connection with her previous pregnancies, and she filled out an insurance form in

September 2004 in which she stated that she was not pregnant. Id. Dr. Dietz noted that, if

Montgomery truly suffered from a delusion of pregnancy, she would consistently assert

that she was pregnant and could not have been talked out of it. Id. Instead, Montgomery

gave conflicting accounts of the details of her 2004 pregnancy, the gender and number of

her fetuses, and the circumstances of her child’s birth. Id. Dr. Dietz also pointed out that

Montgomery’s story changed again after her arrest in that she falsely claimed her brother

had gone with her to Stinnett’s home on the day of the murder and, when it was established

her brother could not have gone with her, she claimed to have amnesia. Id.

Dr. Dietz concluded that, in his opinion, Montgomery was entirely capable of

appreciating that she engaged in a lengthy and elaborate plan to murder Stinnett at an

advanced stage of pregnancy, successfully conduct a crude Cesarean section on her first

attempt, and kidnap a healthy infant she could present to the world as her own. Id. at 1085.

The jury unanimously found Montgomery guilty beyond a reasonable doubt of the capital

crime of kidnapping resulting in death. Id.

At the punishment phase, Montgomery’s mental health experts testified that she

suffered from a severe mental or emotional disturbance at the time of her offense which

substantially impaired her ability to appreciate the wrongfulness of her actions. Id. The jury

also heard testimony stating that Montgomery had been a good, loving, and nurturing

mother to her four children, with whom she had a harmonious relationship. Id. The jury

unanimously found that the Government proved all statutory and non-statutory aggravating

factors beyond a reasonable doubt, including that Montgomery committed her offense in

an especially heinous or depraved manner in that the killing involved serious physical

abuse to Stinnett. Id. Thereafter, the district court sentenced her to death. Id.

D. Direct Appeal and Post-Conviction Challenge to Conviction

The Eighth Circuit affirmed Montgomery’s conviction and sentence, rejecting her

arguments, among others, that: (1) the district court erroneously excluded disputed expert

testimony on the results of Montgomery’s brain scans; (2) Montgomery’s actions in cutting

the unborn baby from Stinnett’s dead body had not constituted a kidnapping; and (3) there

was insufficient evidence to support the jury’s affirmative verdict on the aggravating

factors. Montgomery, 635 F.3d at 1087–96. The Supreme Court subsequently denied

Montgomery’s certiorari petition. Montgomery v. United States, 565 U.S. 1263 (2012).

Montgomery then filed a motion to vacate, set aside, or correct her sentence

pursuant to 28 U.S.C. § 2255, where she asserted a variety of complaints about the

performance of her trial counsel. The district court denied relief, the Eighth Circuit denied

a Certificate of Appealability (Order, Montgomery, No. 17-1716), and the Supreme Court

denied Montgomery’s petition for writ of certiorari. Montgomery v. United States, 140 S.

Ct. 2820 (2020).

E. Montgomery’s Time at Carswell

Since her incarceration at FMC Carswell, Montgomery developed a history of

suicidal ideations and attempts that necessarily informed the conditions of her confinement

as dictated by FMC Carswell’s standard suicide watch protocol. Carr Declaration at ¶ 5,

ECF No. 23-2. Staff first placed Montgomery on suicide watch for two days beginning July

30, 2009 after she expressed suicidal ideation to medical staff. Id. at ¶ 6. This occurred

again at the following dates:

• Three days beginning March 31, 2010, after expressing suicidal ideation (Id.

at ¶ 7;

• Three days beginning July 25, 2010, after reporting suicidal ideation and

cutting her wrist with a pencil sharpener (Id. at ¶ 8);

• Two days beginning on April 7, 2011, after reporting feeling overwhelmed

by the denial of her first appeal and other inmates expressing their sympathy

(Id. at ¶ 9);

• Four days beginning August 5, 2011, after taking approximately fifty 325 mg

aspirin (she denied this was a suicide attempt), being transported to the

hospital for treatment, and returning from the hospital (Id. at ¶ 10);

• On August 17, 2011, Montgomery threatened to hang herself if her property

were taken from her, as had been warned as a disciplinary sanction. Id. at

¶11. She then covered her cell door window with paper and when an officer

opened the food slot, she became violent and threw items, including a liquid.

Id. The same day, red ligature marks were observed on both sides of

Montgomery’s neck. Id. She was again placed on suicide watch until July 19,

2011, based upon her refusal to participate in therapy and her apparent

suicide attempt (Id.);

• From September 27 to September 30, 2011, Montgomery was again placed

on suicide watch after she became agitated over the removal of her property

from her cell. Id. at ¶ 12. She covered the cell door window and informed

staff that her attorney would never see her again. Id. When the psychologist

visited, she refused to discuss her situation and hid in her shower. Id. When

staff escorted her out of the cell, it appeared that she tied a piece of yarn

around her neck and engaged in self-harm by pulling her hair and cutting her

wrists open with small pieces of cement (Id.);

• On June 11, 2012, Montgomery became agitated when she was informed that

she would be moved to administrative detention pending investigation of a

physical assault that she was involved in. Id. at ¶ 13. She demanded to speak

with psychology but then refused to speak with them when they arrived. Id.

Upon being asked whether she would move to administrative detention

willingly, she began throwing items around her cell and swallowed three or

four pills from a Tylenol bottle. Id. When prison staff entered her cell to

handcuff her, they found that that the 100-pill bottle, which she had only

purchased on June 8, had only twenty pills remaining. Id. FMC Carswell staff

then transported Montgomery to the hospital, where doctors treated her for

acute liver failure following her acetaminophen overdose. Id. She was again

placed on suicide watch until July 2, 2012 (Id.);

• On September 25, 2012, Montgomery was placed on suicide watch for two

days after she expressed suicidal ideation in response to a recent room

change. Id. at ¶ 14.

• On September 12, 2019, Montgomery was yet again placed on suicide watch

for two days after she expressed difficulty managing her emotions but denied

any suicidal intent. Id. at ¶ 15.

A review of the record reveals that throughout her incarceration at FMC Carswell,

Montgomery repeatedly made statements to medical staff indicating that she was

considering or even planning to commit suicide if and when she ever received an execution

date, including statements on December 30, 2009; March 29, 2010; April 5, 2010; April

29, 2010; September 29, 2010; September 27, 2010; September 20, 2011; and July 3, 2012.

Id. at ¶ 16.

On October 16, 2020, after BOP officials informed Montgomery that she received

an execution date of December 8, 2020, Warden Carr, considering Montgomery’s past

actions, directed that Montgomery be evaluated for suicide risk. Id. at ¶ 17–18. After

Montgomery declined to participate in a clinical interview, a BOP staff psychologist

concluded that Montgomery posed a “significant risk for committing suicide and that

initiation of suicide watch was clinically necessary for her safety.” Id. at ¶ 19. Accordingly,

for her own protection, Montgomery was placed under intense supervision, which included

significant restrictions on her access to her property, recreation, hygiene products, showers,

clothing, and reading materials. Id. at ¶¶ 19–34. Since then, a licensed psychologist takes

daily evaluations of Montgomery. Id. at ¶ 20. FMC Carswell staff have made gradual

adjustments to the restrictions initially imposed upon her, with many of her belongings and

routines restored to her on the condition that she not use them to hurt herself. Id. at ¶¶ 19–

34.

F. Proposed Transfer to FCC Terre Haute

The record now before the Court also includes a declaration by Rick Winter,

Regional Counsel for the BOP’s North Central Region, in which he addresses some of

Montgomery’s objections to her transfer to FCC Terre Haute, pending her execution on

January 12, 2021. Winter Declaration (“Winter Declr.”), ECF No. 32-1. According to

Winter’s testimony, the BOP plans to transport Montgomery to Terre Haute one to two

days before her scheduled execution. Id. at ¶ 6. Montgomery’s BOP’s transport team will

include both male and female staff, including a female psychologist and a female nurse, all

of whom are required to complete annual training that focuses in part on mental health, the

BOP’s sexually abusive behavior and intervention program, and suicide prevention. Id. at

¶ 7. Personnel from other law enforcement agencies may also participate in Montgomery’s

transport. Id.

Winter further testifies that while awaiting execution, Montgomery will be the sole

inmate housed at FCC Terre Haute’s execution building, which is separate from all other

facilities at FCC Terre Haute, and that she will not encounter any other inmates whatsoever.

Id. at ¶¶ 8–10. Montgomery will be the only inmate housed at FCC Terre Haute’s execution

building until her execution. Id. at ¶ 10. Finally, during her stay in the execution building,

Montgomery will be observed in her cell by both male and female staff and a BOP doctor

and psychologist will be available at all times. Id. at ¶ 11.

G. Procedural History

Montgomery filed the instant complaint in the United States District Court for the

District of Columbia, where she sought declaratory and injunction relief blocking her

transfer to FCC Terre Haute. ECF No. 1. On November 25, 2020, the District Court for the

District of Columbia transferred this cause to this Court. ECF No. 34. Montgomery then

filed an amended complaint in which she asserts that:

(1) Defendants violated her rights under the Rehabilitation Act of 1973 because (a)

she has disabilities, i.e., post-traumatic stress disorder, bipolar disorder,

epilepsy, depression, and dissociative disorder; (b) Defendants failed to make

reasonable accommodations in their policies, procedures, and practices

concerning confinement of death sentenced prisoners who have received a death

warrant by requiring their transfer to FCC Terre Haute for purposes of

execution; (c) Defendants failed to implement modifications or changes that

would mitigate the harm to Montgomery from her transfer to an all-male facility

and to reasonably accommodate Montgomery’s known disabilities; (d) she is

entitled to reasonable accommodations that include (i) not being transported to

FCC Terre Haute, (ii) having her execution conducted at FMC Carswell, and

(iii) modifications to BOP protocols to limit her exposure to surveillance by men

and ensure she retains access to coping tools necessary to maintain stability with

her disability; and

(2) Defendants violated her rights under the Administrative Procedures Act (“APA”)

and Due Process principles because her proposed transfer to FCC Terre Haute

violates BOP policies regarding the treatment and oversight of female prisoners with

mental illness and prohibiting the transfer of any inmate on suicide watch to any

facility other than facility other than a medical center.

Am. Comp. at ¶¶ 67–76

Montgomery also filed a motion requesting discovery in which she asserted her

intention at some unspecified point in the future to amend her motion for preliminary

injunction. ECF No. 49, at 1 n.1. Given the proximity to her execution date, the Court found

it necessary to issue an Order setting an expedited briefing schedule and deadline for any

amendment to Montgomery’s preliminary injunction as well as the Defendants’ response.

ECF No. 50.

Montgomery then filed her Amended Motion in which she puts forth several

propositions. First, that Title 18 U.S.C. § 3596, not 18 U.S.C. § 3621 or § 3625, governs

the BOP’s decision on the place where Montgomery’s execution will be carried out.

Amended Motion at 15–18. Accordingly, the APA applies to her challenge to the BOP’s

transfer decision and its alleged failure to comply with its rules and procedures. Id. Second,

that the BOP’s alleged failures to follow its suicide prevention and mental health protocols

in connection with Montgomery’s transfer to FCC Terre Haute are arbitrary and capricious,

violating Due Process principles. Id. at 15–18. Third, that Montgomery suffers from

organic brain damage resulting from in utero alcohol exposure and significant head trauma,

multiple mental illnesses (including post-traumatic stress disorder (“PTSD”) and bipolar

disorder) resulting from a long history of physical and sexual abuse, personality disorders,

and major depressive disorder which qualify her as disabled under the Rehabilitation Act.

Id. at 7–14. Fourth, that due to her history of physical and sexual abuse at the hands of

numerous men, including her step-father, both husbands, and a series of men to whom her

biological mother prostituted Montgomery when she was a teenager, Montgomery

experiences severe anxiety and stress when interacting with unfamiliar men, which

manifests in hives and PTSD symptoms. Id. at 5, 9. Fifth, that the BOP’s refusal to

designate FMC Carswell (a female-centric facility staffed by predominately female staff)

as the place for Montgomery’s execution is a failure to make a reasonable accommodation

and, therefore, a form of discrimination against her based upon her disabilities. Id. at 10–

14.

Defendants set forth several arguments in response. First, the BOP’s discretion to

transfer inmates from one facility to another is not subject to judicial review absent

circumstances (such a fact-specific allegation of a constitutional violation) not present in

Montgomery’s case. Resp. at 5, 9–10. Second, Montgomery failed to exhaust available

BOP remedies, thus barring her claims under the PLRA. Id. at 3–4. Third, the

“accommodations” requested by Montgomery are wholly unreasonable given the size of

the staff necessary to effectively and efficiently carry out an execution (more than forty

BOP employees from multiple facilities in the Terre Haute area and beyond) and the

limitations imposed by the absence at FMC Carswell of the death chamber located at FCC

Terre Haute. Id. at 1–2, 7–9.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915A(b)(1), federal courts are mandated to preemptively

screen prisoner complaints against government officials or entities to identify cognizable

claims and dismiss the complaint or any portion of the complaint that is frivolous,

malicious, or fails to state a claim upon which relief may be granted. Coleman v. Tollefson,

575 U.S. 532, ___, 135 S. Ct. 1759, 1764 (2015) (noting the congressional focus on trial

court screening of prisoner complaints and dismissal of claims that are frivolous, malicious,

or fail to state a claim for relief); Crawford-El v. Britton, 523 U.S. 574, 596 (1998)

(recognizing the Prison Rights Litigation Act (“PLRA”) requires district courts to screen

prisoner complaints and authorizes the court on its own motion to dismiss frivolous,

malicious, or meritless claims). Claims qualify as frivolous when they lack an arguable

basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Complaints fail to state

a claim upon which relief may be granted where they fail to contain sufficient facts,

accepted as true, to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Threadbare recitals of the elements of a cause of action supported by mere

conclusory statements are insufficient, because “[w]here a complaint pleads facts that are

‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between

possibility and plausibility of entitlement to relief.’” Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007)).

ANALYSIS

A. Montgomery failed to exhaust her administrative remedies.

Defendants argue that Montgomery failed to exhaust administrative remedies

available through BOP policies and procedures. Resp. at 3–4. Ordinarily, prisoners,

including death row inmates, seeking any form of relief against government officials or

entities must exhaust available administrative remedies, even when the remedies available

through administrative proceedings may not afford the complete relief or remedy sought.

Jones v. Bock, 549 U.S. 199, 211 (2007); Porter v. Nussle, 534 U.S. 516, 524 (2002)

(explaining that 42 U.S.C. § 1997e(a) “invigorated” the previous statutory exhaustion

requirement); Booth v. Churner, 532 U.S. 731, 736–41 (2001) (holding that inmate

required to exhaust administrative remedies despite prison administrative procedures not

including the monetary damages he sought for an alleged Eighth Amendment violation).

“[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes,

foreclosing judicial discretion.” Ross v. Blake, 136 S. Ct. 1850, 1857 (2016). Indeed,

“[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted

claims cannot be brought in court,” including those of death row inmates. Jones, 549 U.S.

at 211 (emphasis added).

Montgomery argues that the BOP’s administrative grievance procedures are

“unavailable” to her (the statutory exception to the PLRA’s exhaustion requirement)

because: (1) she lacks access to writing materials and therefore cannot fill out the BOP’s

grievance form under the restrictions imposed by suicide watch (Reply at 9–10, ECF No.

31); (2) her current mental process renders her unable to fulfill the BOP’s grievance process

requirements (Id. at 10); and (3) the BOP’s administrative grievance process is a dead end

because there is no guarantee that she could obtain final resolution of her grievances before

her scheduled January 12, 2021 execution, despite the fact that BOP is required to respond

to an informal request within twenty days (28 C.F.R. § 542.18). Id. at 11–12.

Defendants assert that applicable BOP rules and procedures permit Montgomery to

obtain assistance from prison staff, family members, or her counsel in filing her

administrative grievance. See Resp. at 3; Orig. Resp. at 13–16, ECF No. 23. The

sophisticated pleadings before the Court belie the argument that Montgomery is incapable,

because of her current mental status and lack of access to writing materials, of filing an

administrative grievance addressing her transfer to FCC Terre Haute or inquiring as to the

details of BOP’s plans for that undertaking. Indeed, nothing in BOP policy or applicable

federal law has precluded highly competent attorneys currently representing Montgomery

from assisting her in filing her grievances—nothing required her to proceed pro se.

Defendants also assert that expedited responses to grievances are available when the

grievance raises an emergency issue, such as Montgomery’s questions about the training

of the BOP personnel to be involved in her impending transfer to FCC Terre Haute. See 28

C.F.R. § 542.18; see Orig. Resp. at 15. In fact, given Montgomery’s focus in her discovery

motion on the training of the personnel to be involved in her transfer and the absence of

any suggestion that she will be denied any of the current medical care she has been

receiving while on suicide watch during her transfer, Montgomery’s complaints about the

circumstances of her transfer to FCC Terre Haute are precisely the sort of complaints that

could easily be resolved (at least with regard to Montgomery’s concerns about inadequately

trained BOP personnel at FCC Terre Haute) informally or administratively.

Under these circumstances, Montgomery fails to establish that the BOP’s

administrative grievance process is “unavailable” to her in a way that excuses her failure

to exhaust administrative procedures. See Ross, 136 S. Ct. at 1856–58 (rejecting the

argument that federal courts have discretion to fashion “special circumstances” exceptions

to the PLRA’s exhaustion requirement); Valentine v. Collier, 978 F.3d 154, 160–62 (5th

Cir. 2020) (rejecting the argument that special circumstances, even emergencies on the

scale of the COVID-19 pandemic, justified an exception to the exhaustion requirement

under the guise of a finding of “unavailability” and specifically holding that “inadequate is

not a synonym for unavailable”). For that reason alone, her claims lack arguable merit and

are subject to dismissal under § 1915A(b)(1).

Thus, the Court finds that Montgomery’s claims should be and hereby are

DISMISSED and any relief predicated upon them DENIED.

B. Merits Analysis

Even if Montgomery exhausted her administrative remedies or proved their

unavailability, the Court would still dismiss her claims under the Rehabilitation and

Administrative Procedure Acts.

The BOP’s general responsibilities concerning persons sentenced to imprisonment

by federal courts are mandated in Title 18 of United States Code at sections 3621 through

3626. 18 U.S.C. §§ 3621–26. Subsection 3621(b) specifies the factors that the BOP must

consider when it determines where to house a federal prisoner. Id. § 3621(b). It also

provides that the BOP may at any time, having regard to the factors set forth in the

subsection, direct the transfer of a prisoner from one penal or correctional facility to

another. See Reno v. Koray, 515 U.S. 50, 58 (1995) (recognizing that the BOP retains the

discretion to direct the transfer of a prisoner from one penal or correctional facility to

another). Importantly, subsection 3621(b) provides that, “[n]otwithstanding any other

provision of law, a designation of a place of imprisonment under this subsection is not

reviewable by any court.” Id. § 3621(b) (emphasis added); see Tapia v. United States, 564

U.S. 319, 331 (2011) (explaining that after a federal court sentences a person, the BOP has

plenary control, subject to statutory constraints, over the place of the prisoner’s

imprisonment).

While Montgomery argues the BOP’s decision regarding the location where she is

to be executed is governed by 18 U.S.C. § 3596, nothing in that statute can be reasonably

construed as circumscribing what the Supreme Court characterized as the BOP’s plenary

control over decisions addressing where to incarcerate a prisoner. Cf. Azar v. Allina Health

Servs., 139 S. Ct. 1804, 181539 (2019) (Gorsuch, J.) (observing that “courts aren't free to

rewrite clear statutes”); United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818)

(Marshall, C.J.) (“[W]hen the legislature manifests [its] clear understanding . . . with its

words, courts are bound by it.”). Further, nothing in section 3596 precludes the BOP from

designating FCC Terre Haute as the place where Montgomery’s execution is to be carried

out or otherwise subjects the BOP’s decision to transfer her there on the eve of her

scheduled execution to scrutiny under the APA.1 Moreover, the only arguably relevant

case law cited by Montgomery in support of her strained interpretation of section 3596 is

wholly inapposite.2

1§ 3596. Implementation of a death sentence

(a) In general.--A person who has been sentenced to death pursuant to this chapter

shall be committed to the custody of the Attorney General until exhaustion of

the procedures for appeal of the judgment of conviction and for review of the

sentence. When the sentence is to be implemented, the Attorney General shall

release the person sentenced to death to the custody of a United States marshal,

who shall supervise implementation of the sentence in the manner prescribed

by the law of the State in which the sentence is imposed. If the law of the State

does not provide for implementation of a sentence of death, the court shall

designate another State, the law of which does provide for the implementation

of a sentence of death, and the sentence shall be implemented in the latter State

in the manner prescribed by such law.

(b) Pregnant woman.--A sentence of death shall not be carried out upon a woman

while she is pregnant.

(c) Mental capacity.--A sentence of death shall not be carried out upon a person

who is mentally retarded. A sentence of death shall not be carried out upon a

person who, as a result of mental disability, lacks the mental capacity to

understand the death penalty and why it was imposed on that person.

18 U.S.C. § 3596.

2Montgomery cites the Seventh Circuit’s decision in Richmond v. Scibana, a case where a

federal inmate brought a section 2241 challenge to a BOP rule which limited the amount of time

near the end of an inmate’s term of incarceration when the inmate would be eligible for placement

in home confinement. 387 F.3d 602 (7th Cir. 2004); Amended Motion at 15. The issue presented

in Richmond was whether 18 U.S.C. § 3624(c) required the BOP to consider an inmate’s placement

in home confinement earlier than the time frame set forth in a proposed BOP rule that was then

undergoing review in the APA’s normal rule-making process but had not reached final adoption.

The Seventh Circuit ultimately concluded that a federal habeas corpus action under section 2241

was not the proper vehicle for challenging the BOP’s proposed new rule regarding the timing of

transfers to home confinement near the end of an inmate’s term of incarceration. Nothing in the

Seventh Circuit’s analysis of those issues in any way impacts the BOP’s plenary power to transfer

inmates between facilities or, in Montgomery’s case, to transfer her to FCC Terre Haute to carry

out her scheduled execution. Nor does Richmond support Montgomery’s assertion that section

3596 circumscribes the BOP’s authority to transfer an inmate to an execution-capable facility in

1. Montgomery’s Rehabilitation Act Claim

Section 504 of the Rehabilitation Act (29 U.S.C. § 794(a)) prohibits discrimination

based on disability. N.C.A.A. v. Smith, 525 U.S. 459, 467 (1999); see also Smith v. Harris

County, Texas, 956 F.3d 311, 316–17 (5th Cir. 2020) (explaining how Section 504 of the

Rehabilitation Act operates in conjunction with Title VI of the Civil Rights Act of 1964

(42 U.S.C. § 2000d) and Title II of the Americans with Disabilities Act (“ADA”) of 1990

(42 U.S.C. § 12132) to prohibit discrimination on the basis of disability); Frame v. City of

Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (ADA and Rehabilitation Act are generally

interpreted in pari materia). To make out a prima facie case of illegal discrimination under

the ADA or the Rehabilitation Act, a plaintiff must show: (1) that she is a qualified

individual, i.e., that she is disabled within the meaning of the ADA and the Rehabilitation

Act; (2) that she is being excluded from participation in, or being denied benefits of,

services, programs, or activities for which the public entity is responsible, or is otherwise

being discriminated against by the public entity; and (3) that such exclusion, denial of

benefits, or discrimination is by reason of his disability. Cadena v. El Paso Cnty., 946 F.3d

717, 723 (5th Cir. 2020). Alongside their prohibitions on disability-based discrimination,

both acts impose upon public entities an affirmative obligation to make reasonable

accommodations for disabled individuals. Id.

To prevail on a failure to accommodate claim, a plaintiff must show that the entity

knew of the disability and its consequential limitations, either because the plaintiff

advance of a lawful execution.

requested an accommodation or because limitation’s nature was open and obvious. Id. at

724. A plaintiff’s requested accommodation must also be “reasonable,” meaning that it

neither imposes undue financial or administrative burdens nor fundamentally alters the

nature of the service, program, or activity. Id.

Montgomery argues that Defendants’ planned transfer to FCC Terre Haute amounts

to discrimination against her on the basis of her disability because (1) Defendants refused

to adequately accommodate her anxiety over the possibility that she will be subject to

observation and surveillance by male prison staff during her transfer and after her arrival

at FCC and (2) BOP personnel with whom she will interact during and after her transfer

may not be adequately trained to address her gender-specific traumatic history of sexual

abuse. See Amended Motion at 10–14. Montgomery seeks an accommodation that either

the BOP guarantees she will not be required to interact with, or be surveilled at any time

by, any male BOP employees with whom she is unfamiliar during her transfer to FCC Terre

Haute and thereafter, or that her execution be conducted at FMC Carswell. Id. at 24–25.

Both of these requests are without merit.

In response, Defendants present uncontroverted evidence that they plan to transport

Montgomery to FCC Terre Haute’s execution building a day or two before her scheduled

execution. Winter Declr. at ¶ 6. During her transfer, BOP personnel who have been trained

in accordance with BOP policy will accompany her, along with a female nurse, a female

psychologist, and possibly law enforcement personnel from other agencies. Id. at ¶ 7. Once

at FCC Terre Haute, Montgomery will be housed separately from all other inmates as the

lone inmate in the execution building until her execution is conducted. Id. at ¶¶ 8–10.

First, while Montgomery repeatedly asserts that BOP personnel at FCC Terre Haute

are inadequately trained concerning her mental health and gender-specific mental

disabilities, she furnishes no fact-specific allegations—let alone evidence—that support

this assertion. Instead, Montgomery simply assumes that because there are currently no

female inmates housed at FCC Terre Haute, all of the BOP personnel at that facility never

received any training concerning suicide prevention, caring for inmates with mental

disabilities, supervising inmates who have been sexually abused or assaulted, or

supervising female inmates generally. Defendants dispute these assertions with evidence,

noting that all BOP employees receive annual training that includes instruction on the very

subjects Montgomery disputes, i.e., suicide prevention and the care of mentally disabled

and sexually abused inmates. Winter Declr. at ¶ 7.

Montgomery’s assumption that male BOP personnel working at all-male facilities

lack training and experience in addressing female inmates who have been raped or sexually

assaulted, lacks specific factual or evidentiary support. Montgomery identifies no

deficiencies in the BOP’s training programs for its employees regarding inmate sexual

assault—intergender and intragender—which again is part of every BOP employee’s

annual training. Nor does Montgomery allege any specific facts showing that the BOP’s

annual employee training regarding inmate sexual assault is inadequate or deficient in

terms of enabling BOP employees to address inmate complaints of sexual assault or abuse.

Second, the fundamental problem with Montgomery’s request that her execution be

conducted at FMC Carswell is that it is unreasonable. See Cadena, 946 F.3d at 724.

Defendants’ evidence shows that BOP conducted multiple successful executions at FCC

Terre Haute in recent months. In contrast, Montgomery alleges no specific facts and

provides no evidence showing that: (1) it is feasible to convert any identifiable portion of

FMC Carswell, a medical facility designed to preserve human life, into an execution

facility similar to that which already exists at FCC Terre Haute; (2) it is practical or even

remotely feasible for BOP personnel at FMC Carswell to be adequately trained in the

interval between now and January 12, 2021, in the manner of execution that has proven so

efficacious at FCC Terre Haute; (3) it is financially feasible to convert any identifiable

portion of FMC Carswell into an execution facility similar to the one which already exists

at FCC Terre Haute; or (4) it is practical or even remotely feasible for BOP to transport its

execution-skilled personnel to FMC Carswell and back without disrupting any other

scheduled executions.

Montgomery’s purported expert, Martin Horn, a former state parole and prison

administrator with very limited experience conducting executions (he supervised three

more than twenty years ago employing an unspecified protocol, which may or may not

have been anything similar to the single-drug lethal-injection execution protocol currently

in use at FCC Terre Haute), has little-to-no experience with the federal prison system, and

no personal knowledge of the facilities at FMC Carswell. Instead, Horn offers what is best

described as purely speculative advice. Horn Declr., ECF No. 54-9. The thrust of Mr.

Horn’s opinions is upon the likely impact of Montgomery’s transfer to FCC Terre Haute

upon her mental health, but nothing in his declaration suggests that he possesses any

training or experience which qualifies him to render an opinion on an inmate’s mental

health. See, e.g., id. at ¶¶ 15–18, 23, 26–28.

Likewise, Horn’s assertion that it would be easy to convert a portion of FMC

Carswell into an execution chamber is without specific factual support regarding what such

a conversion would entail (except that he suggests it would be necessary to bolt a gurney

to the floor as is apparent from the photograph accompanying his declaration). See id. at

¶ 33. Moreover, he offers no details regarding the cost or amount of time necessary to

complete such an undertaking. Nor does he offer any suggestion as to what training would

be necessary for FMC Carswell personnel before they could carry out Montgomery’s

execution with the same efficiency shown by the employees located at FCC Terre Haute

in other recent federal executions.

Finally, Mr. Horn’s suggestion that BOP could simply hire unidentified individuals

possessing unspecified skills who could carry out Montgomery’s execution effectively and

efficiently (because years ago Pennsylvania retained the services of an unidentified number

of similarly unidentified individuals over an unspecified time frame) at FMC Carswell is

entirely unsupported. Id. at ¶¶ 35–36. Mr. Horn offers no detailed explanation of what he

deems to be the types of skills necessary to successfully carry out a lethal injunction

execution protocol of the type employed by BOP staff at FCC Terre Haute. In sum, he

presents no facts showing that it would be possible for BOP to identify and retain the

services (as independent contractors) of sufficiently skilled individuals within a time frame

that would permit BOP to conduct Montgomery’s scheduled lethal injection execution at

FMC Carswell.

For the foregoing reasons, Montgomery fails to allege any specific facts showing

that the refusal of BOP officials to conduct her execution at FMC Carswell constitutes a

failure to make reasonable accommodation in view of Montgomery’s mental health

disabilities. Thus, the Court finds that her Rehabilitation Act claim should be and hereby

is DISMISSED and any relief predicated upon it DENIED.

2. Montgomery’s APA Claim

The APA waives sovereign immunity concerning non-monetary claims made

against federal agencies, including the BOP. 5 U.S.C. § 702. However, 18 U.S.C. § 3625

provides, that sections 701 through 706 of the APA, “do not apply to the making of any

determination, decision, or order under this subchapter” (which includes subsection

3621(b)). 18 U.S.C. § 3625. As explained in detail above, the section 3625’s plain text

instructs that BOP decisions regarding the placement or transfer of an inmate are not

subject to the provisions of the APA. 18 U.S.C. §§ 3621(b), 3625; cf. Connecticut Nat.

Bank v. Germain, 503 U.S. 249, 254 (1992) (Thomas, J.) (“When the words of a statute are

unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.”)

(quotations omitted); Evans v. Jordan, 8 F. Cas. 872, 873 (C.C. Va. 1813) (Marshall, J.),

aff'd, 13 U.S. (9 Cranch) 199 704 (1815) (“[In the legislative branch] is confided, without

revision, the power of deciding on the justice as well as wisdom of measures relative to

subjects on which they have the constitutional power to act. Wherever, then, their language

admits of no doubt, their plain and obvious intent must prevail.”).

Perhaps implicitly recognizing this, Montgomery’s amended complaint and

amended motion for preliminary injunction shifted her attack from a purely statutory

argument. See Am. Comp.; Amended Motion. Instead, she now presents what the Court

interprets as an implicit Due Process challenge. Montgomery asserts that BOP rules and

regulations designed to protect the mental health and safety of BOP inmates will be

violated if she is transferred to FCC Terre Haute (an all-male facility where her gender-

focused anxiety and PTSD will be exacerbated) while she is currently on suicide watch

(because FCC Terre Haute is not a medical facility as required by BOP suicide prevention

protocols). Amended Motion at 10–14. To the extent that Montgomery makes such a Due

Process challenge, for the following reasons the Court finds that it should be DENIED.

a. Procedural Due Process

The Due Process Clause protects against deprivations of liberty and property

interests. Procedural due process rights attach to liberty interests that are either created by

non-constitutional law, such as statutes, or are sufficiently important to flow implicitly

from the design, object, and nature of the Due Process Clause. Kerry v. Din, 576 U.S. 86,

97–98 (2015). To have a property interest in a benefit, a person must have more than an

abstract need or desire and more than a unilateral expectation of it—he must have a

legitimate claim of entitlement to it. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748,

756 (2005). A benefit is not protected if government officials may grant or deny it at their

discretion. Id.

The Constitution itself does not give rise to a liberty interest in avoiding transfer to

more adverse conditions of confinement. Meachum v. Fano, 427 U.S. 215, 225 (1976)

(“That life in one prison is much more disagreeable than in another does not in itself signify

that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred

to the institution with the more severe rules.”). Section 3621 grants BOP officials plenary

discretion over prisoner housing designations and transfers, subject only to the statutory

considerations listed in section 3621(b) (which plainly do not forbid Montgomery’s

transfer to FCC Terre Haute). 18 U.S.C. § 3621. Thus, Montgomery possesses no protected

liberty or property interest in avoiding her transfer and brief detention as the lone inmate

in the execution building at FCC Terre Haute. Cf. Olim v. Wakinekona, 461 U.S. 238, 250

(1983). The transfer’s purpose is to facilitate the execution of her lawfully imposed

criminal sentence in a manner consistent with an execution protocol approved by the

Supreme Court.

It is undisputed that Montgomery is currently on suicide watch, with some related

restrictions on her conduct that she outlined in her original complaint. Her amended

complaint, however, deleted her Eighth Amendment challenge to her current conditions of

confinement. Compare Am. Comp. with Orig. Comp. She does not allege that she will be

taken off suicide watch any time prior to her scheduled execution, either during her transfer

to FCC Terre Haute or after her arrival there. It bears repeating that Montgomery is

currently on suicide watch because of her lengthy history of suicidal ideation, comments,

gestures, and attempts. See supra at 8–11. Based on the record before the Court, these

conditions of confinement will remain substantially the same for Montgomery upon her

arrival at FCC Terre Haute’s execution building.

As is presently the case, Montgomery will be under surveillance by both male and

female BOP employees. The Supreme Court held that no violation of a constitutionally

protected liberty interest occurred when an inmate was placed in administrative segregation

for thirty days as a disciplinary sanction because the disciplinary segregation did not differ

substantially from the ordinary conditions of the inmate’s prison life. Sandin v. Connor,

515 U.S. 472, 483–84 (1995). There is no fact-specific allegation before this Court

establishing that Montgomery’s transfer to FCC Terre Haute just one to two days before

her scheduled execution will substantially alter the conditions of her suicide watch or her

life in prison generally.

From her arrival at FCC Terre Haute (which Winter testifies will be one to two days

before her scheduled execution) until her execution, Montgomery will be the only inmate

in the execution building at that facility. See Winter Declr. at ¶¶ 8–11. There is no evidence

that the BOP will deprive Montgomery of any of the medical or psychological services she

is currently receiving, including her anti-anxiety medications. While the staff at FCC Terre

Haute will include both male and female guards, Montgomery possesses no

constitutionally protected liberty interest in avoiding a heightened sense of anxiety because

of her possible interaction with unfamiliar male guards. Thus, Montgomery’s procedural

due process challenge to her transfer is legally and factually unsupported.

b. Substantive Due Process

“The touchstone of substantive due process protection is the protection of the

individual against arbitrary government action.” Cnty. of Sacramento v. Lewis, 523 U.S.

833, 845 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). Montgomery

argues that her transfer to FCC Terre Haute is arbitrary and capricious because it is

inconsistent with the details of BOP rules and regulations designed to protect inmate health

and safety (including BOP’s suicide prevention program). Amended Motion at 15–17. This

argument lacks merit.

There is nothing arbitrary or capricious about BOP’s proposed transfer of

Montgomery to FCC Terre Haute one to two days before her scheduled execution. The

BOP plans to transfer Montgomery to the only BOP facility where staff have a

demonstrated record of successfully conducting executions employing the lethal injunction

protocol expressly approved by the Supreme Court in Barr v. Lee. 130 S. Ct. 2590, 2591–

92 (2020). As stated previously, the BOP plans to house Montgomery as the sole inmate

in FCC Terre Haute’s execution building for the brief duration of her stay prior to her

execution. See Winter Declr. at ¶¶ 6, 8–10.

The fact that Montgomery does not wish to be housed for one to two days on a

campus where she will be the lone female inmate does not violate substantive due process

principles, even giving due regard to her mental health issues. See Washington v. Harper,

494 U.S. 210, 225–26 (1990) (holding prison officials did not violate substantive due

process principles by treating non-consenting mentally ill prison inmate with antipsychotic

medications). In a prison environment, officials routinely confront individuals with a

demonstrated propensity for antisocial, criminal, and violent conduct. Id. The

government’s interest in carrying out a lawfully imposed capital sentence is not defeated

by an inmate’s preference for being surrounded only by familiar faces and persons of their

own gender. See Cnty. of Sacramento, 523 U.S. at 845.

In Montgomery’s case, BOP officials have the responsibility of ensuring the safety

of both Montgomery and the prison staff who will participate in her execution. Stated

otherwise, they are under a duty to carry out a lawfully imposed capital sentence in a

manner which conforms with constitutional requirements and avoids the unnecessary risk

of a failed execution. There is no fact-specific allegation showing that the BOP possesses

any facility other than FCC Terre Haute with the necessary physical requirements and

experienced staff to carry out a lethal injection protocol execution in a constitutionally

acceptable manner. The BOP’s plan to transfer Montgomery to FCC Terre Haute and

briefly house her there as the sole inmate in its execution building pending her execution

is neither arbitrary nor capricious. Harper, 494 U.S. at 225–27.

Thus, the Court finds that her APA claim should be and hereby is DISMISSED and

any relief predicated upon it DENIED.

C. Motion for Discovery

Rule 8 of the Federal Rules of Civil Procedure may no longer require the type of

hyper-technical pleading that once held sway in federal judicial proceedings, but it does

not swing wide the doors of discovery for a plaintiff armed with nothing more than

conclusions. Iqbal, 556 U.S. at 678–79. Montgomery’s conclusory pleadings do not entitle

her to discovery, however limited, in connection with this case. As explained above, her

claims are precluded by specific federal statue. She is not entitled to burden Defendants

with discovery requests in support of her meritless claims. Id. Thus, the Court finds that

Montgomery’s Discovery Motion should be and hereby is DENIED.

D. Motion for Preliminary Injunction

Plaintiffs seeking a preliminary injunction must establish that they are likely to

succeed on the merits, that they are likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in their favor, and that the injunction is

in the public interest. See e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);

Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). The requirements for a

preliminary injunction are essentially the same as those for a permanent injunction except

that the plaintiff must show a likelihood of success on the merits rather than actual success.

Winter, 555 U.S. at 32 (quoting Amoco Production, 480 U.S. at 542, n.12).

As discussed above, Montgomery’s claims based upon the Rehabilitation Act and

the APA fail to establish a likelihood of success on the merits. See Bucklew v. Precythe,

139 S. Ct. 1112, 1134 (2019) (encouraging federal courts to employ their equitable powers

to dismiss lawsuits challenging execution protocols that are based on speculative theories).

Thus, the Court finds that her Amended Motion for Preliminary Injunction should be and

hereby is DENIED.

CONCLUSION

The PLRA’s exhaustion requirement is wholly consistent with the clearly expressed

congressional intent underlying the final sentence of 18 U.S.C. § 3621(b), as well as 18

U.S.C. § 3625. Collectively, these statutory enactments reflect a desire to remove federal

courts from the role of micromanaging federal prisons, particularly regarding

administrative decisions on the placement and transfer of inmates. Absent some showing

that an inmate’s federal constitutional rights have been violated, challenges to BOP

decisions regarding the designation of an inmate’s place of incarceration or transfer

between facilities have no efficacy.

This is not a case in which a prisoner is attacking an administrative interpretation of

a statute or the validity of an agency’s proposed or existing rules. Such challenges can

properly be brought under the APA because that legislation was enacted, in part, to bring

uniformity and coherence to the federal administrative rule-making process. This is also

not a case in which a prisoner alleges that he or she is exempt from execution because of a

constitutional barrier (such as intellectual disability or mental incapacity). See 18 U.S.C.

§ 3695(b).

Montgomery committed the ultimate criminal offense recognized by this nation—a

capital offense. A jury of her peers unanimously concluded that offense was especially

heinous, a conclusion fully supported by the evidence of the extensive planning which

preceded it and Montgomery’s ruthlessness in executing her plan. Montgomery, 635 F.3d

at 1085. At trial, Dr. Dietz noted Montgomery’s remarkable ability to study medical

information online and then successfully perform a Cesarean section on her first attempt.

Id. Her jury unanimously concluded these were not the actions of someone in a dissociative

state. Id.

A jury heard extensive evidence of: (1) Montgomery’s history of in utero alcohol

exposure; (2) her multiple head injuries; (3) her lengthy history of sexual abuse and assault

by her stepfather, her husbands, and many others, much of which occurred with the

knowledge and complicity of her biological mother; and (4) her diagnoses of a variety of

mental illnesses, mental defects, and personality disorders. See generally id. Despite this

evidence, her jury unanimously returned a verdict at the punishment phase of trial which

compelled the federal district court to impose the death penalty. Id. at 1079.

Montgomery’s unanimous jury, the Eighth Circuit, and the Supreme Court have all

declared that the punishment for her capital offense is death. The existence of BOP rules,

regulations, and policies requiring BOP officials to conduct themselves in a manner

designed to protect the health and safety of inmates, including BOP’s suicide prevention

program, may not be employed to prevent the execution of Montgomery’s lawful sentence.

This includes efforts to preclude her transfer to the lone BOP facility with the necessary

physical resources and experienced staff to carry out her execution in a constitutionally

acceptable manner.3 To hold otherwise would prevent BOP officials from ever executing

her capital sentence.4

Therefore, it is hereby ORDERED that:

Montgomery’s amended complaint, (ECF No. 43), is DISMISSED without

Prejudice pursuant to 28 U.S.C. § 1915A(b)(1).

Montgomery’s amended motion for preliminary injunction, (ECF No. 53), is

DENIED.

3Insofar as Montgomery’s pleadings and motions in this cause can be construed as an

eleventh-hour attempt to preclude her execution, an assertion which she denies, this action could

also be construed as an attempt to circumvent the procedural requirements of 28 U.S.C. § 2255(h)

requiring Circuit Court approval before the filing of a second or successive motion under that

statute. See Nance v. Commn’r, Ga. Dep’t of Corr., ___ F.3d ___, 2020 WL 7053435, * 6 (11th

Cir. Dec. 2, 2020) (holding a prisoner’s claim for injunctive relief that would prevent a state from

implementing a death sentence under the only method authorized by state law was required to be

brought as a federal habeas corpus action).

4Montgomery’s arguments in this case furnish extensive details of her lengthy history of

physical and sexual abuse, brain impairments, and resulting mental disabilities and personality

disorders. These arguments read like a clemency petition. Of course, this Court is not the proper

forum in which to make a request for clemency, which lies within the exclusive province of the

Executive Branch, not the Judicial Branch. Cavazos v. Smith, 565 U.S. 1, 8–9 (2011) (clemency is

the prerogative granted to the executive to help ensure that justice is tempered with mercy);

Harbison v. Bell, 556 U.S. 180, 187 (2009) (“Federal clemency is exclusively executive: Only the

President has the power to grant clemency for offenses under federal law.”); cf. Letter from

Thomas Jefferson to Willian Charles Jarvis (Sept. 28, 1920) in 15 THE WRITINGS OF THOMAS

JEFFERSON 277 (Lipsomb & Bergh eds., Memorial Ed. 1903-04) (“To consider the [federal] judges

as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and

one which would place us under the despotism of an oligarchy.”).

Montgomery’s motion for discovery, (ECF No. 49), is DENIED.

The applications for admission Pro Hac Vice, (ECF Nos. 51, 57), are GRANTED.

All other pending motions are DISMISSED as moot.

SO ORDERED on this 15th day of December, 2020.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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