# Montgomery v. Barr

> District Court, N.D. Texas · December 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10449610

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** December 15, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10449610

## How later opinions describe it (automated extraction)

- 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
- holding prison officials did not violate substantive due process principles by treating non-consenting mentally ill prison inmate with antipsychotic medications
- 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”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

LISA MONTGOMERY, §
§
Plaintiff, §
§
v. § Civil Action No. 4:20-cv-01281-P
§
WILLIAM P. BARR et al., §
§
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

35

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10449610. Public record. Not legal advice.