Petition for Writ of Certiorari — Kenneth Eugene Smith, Petitioner v. John Q. Hamm, Commissioner, Alabama Department of Corrections, et al.
Supreme Court briefJan 25, 2024
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No.
KENNETH EUGENE SMITH,
Petitioner,
v.
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, et al.,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
PETITIONER’S APPENDIX—VOLUME I (APP’X A-E)
Andrew B. Johnson
BRADLEY ARANT BOULT CUMMINGS LLP
1819 Fifth Avenue North
Birmingham, Alabama 35203
(205) 521-8000
ajohnson@bradley.com
Robert M. Grass
Counsel of Record
Jeffrey H. Horowitz
David Kerschner
ARNOLD & PORTER KAYE SCHOLER LLP
250 West 55th Street
New York, New York 10019
(212) 836-8000
robert.grass@arnoldporter.com
jeffrey.horowitz@arnoldporter.com
david.kerschner@arnoldporter.com
Counsel for Petitioner
TABLE OF CONTENTS
APPENDIX
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
DOCUMENT
Opinion of the United States Court of
Appeals for the Eleventh Circuit
Kenneth Eugene Smith v. Comm’r,
Ala. Dep’t of Corr., No. 24-10095, Doc.
58-1 (11th Cir. Jan. 24, 2024)
Memorandum Opinion and Order of
the District Court for the Middle
District of Alabama
Smith v. Hamm, No. 2:23-cv-00656,
DE 69 (M.D. Ala. Jan. 10, 2024)
Order of the United States Court of
Appeals for the Eleventh Circuit
Kenneth Eugene Smith v. Comm’r,
Ala. Dep’t of Corr., No. 24-10095, Doc.
44-2 (11th Cir. Jan. 20, 2024)
Order of the District Court for the
Middle District of Alabama
Smith v. Hamm, No. 2:23-cv-00656,
DE 88 (M.D. Ala. Jan. 24, 2024)
Plaintiff Kenneth Eugene Smith’s
Renewed Emergency Motion to
Supplement the Record (with exhibits)
Smith v. Hamm, No. 2:23-cv-00656,
DE 87 (M.D. Ala. Jan. 23, 2024)
Second Amended Complaint
Smith v. Hamm, No. 2:23-cv-00656,
DE 31 (M.D. Ala. Nov. 28, 2023)
Declaration of Dr. Robert Jason Yong,
MD, MBA, dated Nov. 17, 2023
Smith v. Hamm, No. 2:23-cv-00656,
DE 19-1 (M.D. Ala. Nov. 20, 2023)
Supplemental Declaration of Dr.
Robert Jason Yong, MD, MBA, dated
Dec. 18, 2023
ii
PAGE
1a
36a
84a
86a
90a
147a
184a
236a
Appendix I
Appendix J
Appendix K
Smith v. Hamm, No. 2:23-cv-00656,
DE 62-58 (M.D. Ala. Dec. 22, 2023)
Declaration of Dr. Katherine
Porterfield, Ph.D., dated Nov. 18, 2023
Smith v. Hamm, No. 2:23-cv-00656,
DE 19-3 (M.D. Ala. Nov. 20, 2023)
Supplemental Declaration of Dr.
Katherine Porterfield, Ph.D., dated
Dec. 15, 2023
Smith v. Hamm, No. 2:23-cv-00656,
DE 62-113 (M.D. Ala. Dec. 22, 2023)
Declaration of Dr. Jonathan I. Groner,
MD, dated Nov. 13, 2023
Smith v. Hamm, No. 2:23-cv-00656,
DE 19-1 (M.D. Ala. Nov. 20, 2023)
iii
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10095
____________________
KENNETH EUGENE SMITH,
Plaintiff-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
WARDEN, HOLMAN CORRECTIONAL FACILITY,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:23-cv-00656-RAH
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____________________
Before WILSON, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Kenneth Eugene Smith is a death row inmate in the custody
of the Alabama Department of Corrections (ADOC) at William C.
Holman Correctional Facility (Holman). Smith is set to be executed on Thursday, January 25, 2024, for the second time. In its
first execution attempt, Alabama failed to obtain intravenous (IV)
access necessary to complete the lethal injection. Now, Alabama
plans to use nitrogen hypoxia for the first time.
Smith sued ADOC Commissioner John Hamm and Holman
Warden Terry Raybon (collectively, Defendants), asserting violations of the First, Eighth, and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. § 2000cc et seq., and the Alabama Constitution’s Religious
Freedom Amendment (ARFA), Ala. Const. art. I, § 3.01. Smith also
asked for a preliminary injunction to stop the scheduled execution.
The Defendants moved to dismiss the complaint and opposed the
request for an injunction. Although the district court found that
Smith alleged plausible claims under the First and Eighth Amendments, RLUIPA, and ARFA, Smith failed to show a substantial likelihood of success on those claims to warrant a preliminary injunction.
After careful review and with the benefit of oral argument,
we affirm the district court.
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Background
On June 24, 2022, Alabama moved to set Smith’s execution
date for the murder of Elizabeth Sennet.1 On September 30, 2022,
the Supreme Court of Alabama granted Alabama’s motion and set
Smith’s execution for Thursday, November 17, 2022.
On August 18, 2022, Smith sued Hamm and ADOC, asserting two Section 1983 claims—violations of the Eighth and Fourteenth Amendments. Hamm and ADOC moved to dismiss Smith’s
complaint, and the district court granted the dismissal with prejudice. Smith moved to amend the judgment to a dismissal without
prejudice, and alleged that ADOC’s “[u]se of [the lethal injection
p]rotocol” would subject him to an Eighth Amendment violation
because, “as ADOC implements it,” he would likely be subject to
cruel and unusual punishment because of particular physiological
predispositions. The district court denied Smith’s motion, explaining that, to support an Eighth Amendment violation, Smith had to
show how ADOC’s deviations—or how implementation of its
1 In April 1996, a jury convicted Smith of capital murder based on the robbery
and murder of Elizabeth Sennett. Smith v. State, 908 So. 2d 273, 278 n.1, 279
(Ala. Crim. App. 2000). Ultimately, the jury recommended by a vote of 11 to
1 a sentence of life imprisonment without the possibility of parole. Id. at 278.
The trial judge overrode the jury’s recommendation and sentenced Smith to
death. Id. But in 2017, Alabama amended its law to no longer permit judicial
override in capital cases. See Ala. Code § 13A-5-47(a) (“Where a sentence of
death is not returned by the jury, the court shall sentence the defendant to life
imprisonment without parole.”) (emphasis added). But Alabama has not made
that statute retroactive, so Smith’s death sentence still stands.
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lethal injection protocol more broadly—subjected Smith to a substantial risk of serious harm, and Smith failed to do so.
Smith timely appealed and sought to stay his execution
pending his appeal. We reversed the district court. A majority of
the panel found that Smith pled sufficient facts to plausibly support
an Eighth Amendment method-of-execution claim that was not
barred by the applicable statute of limitations. Because we resolved
Smith’s underlying appeal, we denied as moot his motion for stay
of execution pending appeal. We expedited the mandate so that
Smith’s case could proceed in the district court.
On November 17, 2022, Smith filed an amended complaint
and moved for a preliminary injunction. Smith also sought an
emergency motion to stay his execution. Ultimately, the district
court denied Smith’s request for a preliminary injunction and stay
of execution finding that Smith inexcusably delayed in seeking
these requests. Smith again appealed to this court and moved to
stay his execution. The panel unanimously granted Smith’s request for stay at approximately 8:00 PM CST. Before the stay was
entered, Smith was taken to the execution chambers.
Smith remained strapped to a gurney in the execution chambers while Alabama’s Office of the Attorney General asked the Supreme Court of the United States to allow the execution to proceed. Smith was not told that his case had been stayed. At approximately 10:00 PM CST, the Supreme Court vacated our stay without any explanation. But the execution team could not obtain IV
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access before the expiration of the death warrant. At approximately 11:30 PM CST, ADOC called off the execution.
The case returned to the district court where Smith moved
to amend his complaint to include related failed execution claims
and add new defendants. In his second amended complaint, Smith
detailed the almost four hours that he spent on the gurney in the
execution chamber. Smith asserted three claims: (1) an Eighth
Amendment violation that a second execution attempt by lethal injection would constitute cruel and unusual punishment; (2) an
Equal Protection violation by seeking a second attempt to execute
Smith despite not doing the same for another inmate whose execution failed; and (3) a violation of court order to not deviate from
ADOC’s lethal injection protocol related to Smith’s failed execution.
ADOC then moved to dismiss the complaint, but the district
court denied in part the motion to dismiss and allowed Smith’s
Eighth and Fourteenth Amendment claims to proceed. Specifically, the district court found that Smith plausibly alleged an Eighth
Amendment claim, noting:
given Smith’s allegations that he himself experienced
severe pain during a prior execution attempt, and that
the prior execution attempt was the latest in an ongoing pattern of the State’s difficulties in establishing venous access when attempting to carry out lethal injection executions, it is plausible, rather than merely possible, that a second lethal injection execution poses a
substantial risk of severe pain to Smith.
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ADOC then answered, and the court directed the parties to
develop a case management report under Rule 26. On August 24,
2023, the district court entered a scheduling order and set an initial
disclosures deadline for August 29, 2023. On August 25, 2023,
ADOC moved to dismiss because Hamm determined that nitrogen
hypoxia was available as a means of execution and agreed that lethal injection would not be used in any future attempts to execute
Smith. Smith opposed—he agreed with the injunction to prevent
a second execution using lethal injection, but objected to the use of
nitrogen hypoxia without the opportunity to review ADOC’s protocol to ensure it met constitutional requirements. Based on
ADOC’s representations, the district court granted its motion to
dismiss and entered a permanent injunction barring it from using
lethal injection to execute Smith.
On August 25, 2023, Alabama’s Office of the Attorney General sought authorization from the Alabama Supreme Court to execute Smith by nitrogen hypoxia. Over Smith’s objection, on November 1, 2023, the Alabama Supreme Court granted the motion
and ordered the Commissioner to carry out the death sentence.
On November 8, 2023, the Governor set Smith’s execution for a
thirty-hour time frame beginning January 25, 2024.
That same day, Smith filed this action with the district court
against Hamm and Raybon, alleging that ADOC’s nitrogen hypoxia protocol (Protocol) and Alabama’s selection of him to be the
first inmate executed by this method violate several constitutional
and statutory provisions. Smith moved to preliminarily enjoin
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Hamm and Raybon from executing him under the present Protocol. They moved to dismiss.
On December 20, 2023, the district court held a hearing on
Smith’s injunction motion, where the court reviewed 111 exhibits,
expert witness declarations, case reports, medical articles, videos of
individuals wearing the mask, the mask itself, and various witnesses testifying to the Protocol’s potential ramifications. On January 10, 2024, the district court granted in part the Defendants’ motion to dismiss, dismissing Smith’s Fourteenth Amendment claim,
but denied the motion as to the remaining counts, allowing those
claims to proceed. Ultimately, the district court denied Smith’s
motion for preliminary injunction.
The order organized Smith’s claims into Counts One (Fourteenth Amendment), Two (Eighth Amendment), Three (First
Amendment), Four (RLUIPA), and Five (ARFA). The district court
dismissed Count One, where Smith alleges that his right to equal
protection under the Fourteenth Amendment was violated when
“the State chose [him] to be the first condemned person to be subject to execution” by nitrogen hypoxia despite his pending state collateral appeal and an Alabama custom that waits for exhaustion of
all conventional appeals. The district court found that Smith
lacked standing because Hamm and Raybon, as the named defendants, lack authority to select inmates and set execution dates under
Alabama law. Since neither Hamm nor Raybon held decisional authority to select Smith, the district court concluded “Count One
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suffers from traceability and causation infirmities that require its
dismissal.”
As to the remaining counts, the district court held that Smith
properly pled plausible claims as to the remaining counts. Turning
to Count Two, the district court concluded that Smith sufficiently
alleged an Eighth Amendment method-of-execution claim because
taking the allegations as true, the Protocol could increase time to
unconsciousness, presents imminent dangers to superadd pain
(e.g., a persistent vegetative state, stroke, vomiting, or sensation of
suffocation), and two feasible, readily implemented alternative
methods exist (i.e., an amended Protocol with ten proposed
changes or death by firing squad using Utah’s execution protocol).
Turning to Count Three, the district court concluded that Smith
sufficiently alleged a First Amendment free speech claim because
no “compelling government interest” justifies masking Smith for
his final statement, so the Protocol’s burden on speech is not reasonably related to a legitimate penological interest. On Count
Four, the district court determined that Smith plausibly pled a
RLUIPA violation: audible prayer (1) comes from a long history of
traditional religious exercise at prisoners’ executions, (2) is part of
his sincere religious beliefs, and (3) substantially burdens his exercise by forcing “the untenable choice of either praying audibly or
risking the consequences of dislodging the mask.” The district
court also held that “Smith has also necessarily pled a plausible First
Amendment free exercise claim” because RLUIPA “embeds a
heightened standard for government restrictions of the free exercise of religion.” Finally, the district court found a plausible claim
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under ARFA because, although requiring strict scrutiny similar to
RLUIPA, the statute dramatically lowers the threshold from “substantial burden” to “any burden—even an incidental or insubstantial one.” Therefore, Smith’s pleading under RLUIPA more than
satisfied a claim under ARFA.
However, the district court ultimately denied Smith’s motion for a preliminary injunction against his execution under the
Protocol. The court held that Smith failed to show a substantial
likelihood of success on the merits under the Eighth Amendment,
RLUIPA, and ARFA.2 First, the district court concluded that
Smith’s Eighth Amendment claim failed because “there is simply
not enough evidence to find with any degree of certainty or likelihood” that the possibility of the mask dislodging or Smith choking
on his own vomit will occur—therefore, “only if a cascade of unlikely events occurs” would execution under the Protocol superadd
pain or prolong death. Second, the district court rejected Smith’s
RLUIPA claim because ADOC “provided substantial evidence that
the mask will not dislodge if Smith audibly prays during his execution,” obviating any untenable choice between audibly praying and
prolonging death. Third, the district court determined that Smith’s
ARFA claim failed for similar reasons—Smith failed to show “there
2 Smith’s First Amendment claims under Count 3 were not considered because
Smith did not seek a preliminary injunction based on those grounds. And,
because Smith’s Fourteenth Amendment claim under Count 1 was dismissed,
it was also not considered in the preliminary injunction analysis.
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is likely to be any burden on his ability to audibly pray during his
execution,” because the evidence “strongly shows the opposite.”
Smith timely appealed and sought a stay of execution. This
court set the case for expedited briefing and oral argument. At oral
argument on January 19, 2024, Smith’s counsel informed the panel
that Smith had started to vomit as his execution date approached
and he had been seen by medical professionals at Holman. That
evening, Smith filed a “Notice of Supplemental Evidentiary Submission.” The panel construed the filing as a motion to supplement the record and denied that request without prejudice to seek
relief in the district court. On January 20, 2024, Smith moved in
the district court to supplement the record with Smith’s counsel’s
affidavit regarding Smith’s new physical symptoms. On January
22, 2024, the district court denied Smith’s motion to supplement
the record but explained that:
Pursuant Federal Rule of Civil Procedure 62.1(b),
Smith shall notify the Eleventh Circuit’s clerk of court
of this court’s indicative ruling that it would grant his
motions to supplement the record as currently presented if the Eleventh Circuit remanded for that purpose.
On January 23, 2024, Smith moved again in this court to supplement, or in the alternative, for limited remand. We granted his
motion and remanded for the limited purpose of entertaining
Smith’s motion to supplement the record and permitting the State
to submit additional evidence in response to Smith’s new evidence.
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We asked the district court to determine whether the newly submitted evidence would change the previous factual findings or conclusions of law in its January 10, 2024 order denying Smith’s request
for a preliminary injunction.
Once we remanded, the district court ordered the parties to
file their motions to supplement and argument on how to interpret
the new evidence. Both parties filed motions to supplement.
Smith presented his recent medical records about his vomiting and
supplemental declarations from Dr. Yong and Dr. Porterfield, indicating that the new medical records demonstrate that Smith is
likely to vomit during his execution, along with declarations from
his counsel. The Defendants provided an affidavit from Warden
Raybon stating Smith would receive his last meal at 10:00 a.m. and
would not consume liquids after 4:00 p.m.
The district court reviewed this new evidence and found as
follows:
Even in light of the new evidence, the court cannot
conclude the Defendants’ method of execution creates a “substantial risk of serious harm, an objectively
intolerable risk of harm that prevents prison officials
from pleading that they were subjectively blameless
for purpose of the Eighth Amendment,” or that Smith
identified “an alternative that is feasible, readily implemented, and in fact significantly reduce[s] [the] risk
of severe pain” he alleges he will suffer if he becomes
nauseous or vomits during the execution.
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The case returned to us, and Smith renewed his motion to stay his
execution, arguing that with this new information, he is likely to
show a success on the merits of his Eighth Amendment claim.
Turning to the remainder of Smith’s appeal, Smith argues
that the district court erred in dismissing his Fourteenth Amendment claim. Smith argues the district court abused its discretion in
denying him a preliminary injunction on his Eighth Amendment
claim and RLUIPA claims. 3 Last, Smith argues that the district
court abused its discretion in two of its evidentiary rulings.
First, we will address Smith’s argument about the dismissal
of his Fourteenth Amendment claim. Then we will turn to his arguments about the denial of a preliminary injunction and the evidentiary issues associated with that order. Last, we will address
Smith’s motion to stay his execution.
II.
Motion to Dismiss
“We review the grant of a motion to dismiss under Rule
12(b)(6) de novo, accepting the allegations in the complaint as true
and construing them in the light most favorable to the plaintiff.”
Chabad Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty., 48 F.4th 1222,
1229 (11th Cir. 2022). Similarly, we review a district court’s standing determinations de novo. Sierra v. City of Hallandale Beach, 996
F.3d 1110, 1112 (11th Cir. 2021). We first address our jurisdiction
over Smith’s Fourteenth Amendment claim. We have jurisdiction
3 In his reply brief, Smith explicitly drops his ARFA claim as it relates to his
preliminary injunction argument.
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to consider Smith’s Eighth Amendment and RLUIPA claims under
28 U.S.C. § 1292(a)(1), as this is an appeal from an order denying a
preliminary injunction based on those claims. Further, we may extend our review to Smith’s Fourteenth Amendment claim since it
was “[a]n integral part of the District Court’s denial of the preliminary injunction.” Speer v. Miller, 15 F.3d 1007, 1010 (11th Cir. 1994).
Since the Fourteenth Amendment served as an integral ground of
Smith’s preliminary injunction request, we exercise jurisdiction
over this claim.
In order to bring a particular claim in federal court, the petitioner must have standing. Jacobson v. Fla. Sec’y of State, 974 F.3d
1236, 1245 (11th Cir. 2020). Standing requires (1) an injury in fact
that (2) is fairly traceable to the defendant’s actions and is (3) likely
to be redressed by a favorable decision. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992). The second requirement demands
that the injury be “fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some
third party not before the court.” Id. at 560 (cleaned up).
Smith challenges the district court’s conclusion that he lacks
standing because his Fourteenth Amendment injury “suffers from
traceability and causation infirmities that require its dismissal.” He
argues that nothing in Alabama law expressly authorizes the Attorney General to select condemned people for execution. But testimony in the record confirms the Attorney General’s primary role
in selecting condemned inmates and serving as the final confirmation for an execution to proceed during the course of Alabama’s
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execution process. Without the Attorney General’s actions, neither Hamm nor Raybon may proceed with their duties under Alabama Code § 15-18-82(b) and (c). Rather, Smith’s execution selection injury is directly traceable to the Attorney General. As a result,
Smith’s Fourteenth Amendment injury fails on traceability
grounds, and therefore he lacks standing to raise this claim.
III.
Motion for Preliminary Injunction
“A movant is eligible for a preliminary injunction or a stay
of execution only if he establishes that (1) he has a substantial likelihood of success on the merits, (2) he will suffer irreparable injury
unless the injunction or stay issues, (3) the injunction or stay would
not substantially harm the other litigant, and (4) if issued, the injunction or stay would not be adverse to the public interest.” Barber v. Governor of Ala., 73 F.4th 1306, 1317 (11th Cir. 2023). The first
factor is considered one of “the most critical.” Nken v. Holder, 556
U.S. 418, 434 (2009). When a court concludes that the movant fails
to establish a substantial likelihood of success on the merits, “it [is]
unnecessary” for the court to determine whether the movant “satisfied the second, third, or fourth factors.” Grayson v. Warden,
Comm’r, Ala., 869 F.3d 1204, 1238 n.89 (11th Cir. 2017).
“Our standard of review on appeal is deferential, and we ask
only whether the district court abused its discretion” in either denying or granting a preliminary injunction. Reeves v. Comm’r, Ala.
Dep’t of Corr., 23 F.4th 1308, 1320 (11th Cir. 2022). “In so doing, we
review the findings of fact of the district court for clear error and
legal conclusions de novo.” Scott v. Roberts, 612 F.3d 1279, 1289 (11th
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Cir. 2010). “This scope of review will lead to reversal only if the
district court applies an incorrect legal standard, or applies improper procedures, or relies on clearly erroneous factfinding, or if
it reaches a conclusion that is clearly unreasonable or incorrect.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th
Cir. 2005) (per curiam).
The abuse of discretion standard “recognizes the range of
possible conclusions the [district court] may reach.” United States
v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). It “allows
a range of choice for the district court, so long as that choice does
not constitute a clear error of judgment.” Id. (quotation marks
omitted). Thus, under the abuse of discretion standard, we may
not reverse “‘simply because we are convinced that we would have
decided the case differently.’” Price v. Comm’r, Dep’t of Corr., 920
F.3d 1317, 1323 (11th Cir. 2019) (quoting Glossip v. Gross, 576 U.S.
863, 881 (2015)).
Smith argues that he has established a substantial likelihood
of success on the merits, and that the district court abused its discretion by denying him a preliminary injunction on his Eighth
Amendment and RLUIPA claims. Smith also asserts that the district court abused its discretion in two of its evidentiary rulings related to its preliminary injunction decision. We address each argument in turn.
A.
Eighth Amendment Claim
To state a plausible claim for relief under the Eighth Amendment, a plaintiff must plead “a substantial risk of serious harm, an
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objectively intolerable risk of harm that prevents prison officials
from pleading that they were subjectively blameless for purposes
of the Eighth Amendment.” Baze v. Rees, 553 U.S. 35, 50 (2008) (internal quotation marks omitted). The Eighth Amendment inquiry
focuses on whether the state’s chosen method of execution “cruelly
superadds pain to the death sentence” by asking whether the state
has “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe
pain.” Bucklew v. Precythe, 139 S. Ct. 1112, 1125 (2019).
Smith argues that the district court erred in denying his request for a preliminary injunction because he is likely to succeed
on his Eighth Amendment claim. Smith asserts that the Protocol
as developed by ADOC fails to ensure an airtight seal and would
allow oxygen to infiltrate the mask. This oxygen infiltration while
nitrogen is being pumped into the mask could lead to a persistent
vegetative state, stroke, or suffocation. Smith also argues that his
exposure to high levels of nitrogen, which may cause nausea, in
combination with his documented chronic nausea induced by his
PTSD from his prior execution attempt, could lead to him vomiting and asphyxiation. Finally, Smith argues that he has identified
feasible and readily available alternative methods to ADOC’s protocol.
To demonstrate that a risk of harm violates the Eighth
Amendment, the petitioner must show the conditions leading to
the risk are “sure or very likely to cause serious illness and needless
suffering,” and will cause “sufficiently imminent dangers.” Helling v.
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McKinney, 509 U.S. 25, 33–34 (1993) (emphasis added). There must
be a “substantial risk of serious harm,” also considered an “objectively intolerable risk of harm,” that negates any contention by
prison officials that they qualify as “subjectively blameless” under
the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 842, 846,
& n.9 (1994). Further, the petitioner must show that its alternative
method “would significantly reduce a substantial risk of severe
pain. A minor reduction in risk is insufficient; the difference must
be clear and considerable.” Bucklew, 139 S. Ct. at 1130 (internal citation omitted).
Supreme Court precedent is clear that a new method of execution does not automatically establish a claim for cruel and unusual punishment. See id. at 1123–24 (discussing the shift to electrocution and how that was not considered cruel in the constitutional
sense); Glossip, 576 U.S. at 881–86 (discussing the changes in lethal
injection drugs and how those changes do not amount to cruel and
unusual punishment); Baze, 553 U.S. at 50–51 (addressing lethal injection for the first time and finding it not to be cruel and unusual).
There is no doubt that death by nitrogen hypoxia is both new and
novel. Because we are bound by Supreme Court precedent, Smith
cannot say that the use of nitrogen hypoxia, as a new and novel
method, will amount to cruel and unusual punishment in violation
of the Eighth Amendment by itself. Rather, Smith must show why
this method will cause him “a demonstrated [substantial] risk of severe pain.” Glossip, 576 U.S. at 878. Smith must also “show a feasible and readily implemented alternative method of execution that
would significantly reduce a substantial risk of severe pain and that
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[Alabama] has refused to adopt without a legitimate penological
reason.” Bucklew, 139 S. Ct. at 1125.
Here, the district court was tasked with conducting factual
findings for the first new method of execution in over 40 years. The
district court boiled Smith’s arguments down to three:
(1) use of an off-the-shelf mask, as opposed to some
other device such as a hood, subjects Smith ‘to a substantial risk of oxygen infiltration’; (2) the specific
mask the ADOC intends to use for Smith’s execution
‘will permit the entertainment of room air’ resulting
in a substantial risk of superadded pain short of death;
[and] (3) the Protocol itself, and Smith’s individual circumstances—now suffering from PTSD and depression as a result of the failed lethal injection execution
attempt and his looming execution—subjects him to
a “substantial risk of asphyxiation on his own vomit.”
After an analysis of expert testimony, various supporting exhibits, and the mask apparatus, the court held:
What the testimony from the experts shows, if anything from an overall standpoint of consistency, is
that the uninterrupted introduction of pure nitrogen
will result in nitrogen hypoxia and that nitrogen hypoxia will ultimately lead to death. On this record,
there is simply not enough evidence to find with any
degree of certainty or likelihood that execution by nitrogen hypoxia under the Protocol is substantially
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likely to cause Smith superadded pain short of death
or a prolonged death.
After a thorough review of the underlying record, and in light of
our highly deferential standard of review, we are bound to agree
with the district court’s factual findings. We address the district
court’s findings surrounding the likelihood of vomiting and oxygen
infiltration in turn.4
Our deferential standard of review does not support a finding that the district court’s determination that Smith is not substantially likely to vomit during the execution is clearly erroneous. The
district court found that “[t]he record still lacks evidence demonstrating when, where, or how much Smith might vomit during the
execution, with or without the mask on, before or during the administration of nitrogen.” The district court noted that Smith’s experts testified that Smith is likely to vomit during the execution
based on the medical records. But even with that information, the
district court balanced this testimony against the Defendants’ alteration of when Smith will receive his last meal, prohibiting solid
food intake for over eight hours before his scheduled execution.
This was similar to one of Smith’s suggested remedies to the Protocol to reduce the substantial risk of harm. Because there is no
evidence that Smith is likely to vomit at the moment in which nitrogen is introduced into the mask, we cannot say that the district
4 As we noted above, this case has been back to the district court for further
review, so the district court’s factual finding on whether Smith is likely to
vomit comes from the district court’s January 24, 2024 order.
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court erred in finding that Smith would not be at substantial risk of
harm from choking on his vomit during the execution.
We are similarly bound by the district court’s factual findings surrounding a substantial risk of oxygen infiltration. The district court found that:
Given its design, the court finds it highly unlikely the
mask would dislodge or that the seal would be broken
and outside air introduced if it is tightly secured on
the condemned inmate’s head in a positive pressure
environment, even under the scenarios Smith alleges
could break the seal—like audibly speaking or moving his mouth or head.
After a painstaking review of the underlying record, we cannot say
this conclusion is a clear error. Diagrams and testimony about the
mask’s design confirm that its five straps securely fit the mask
across the entire face, with the entire assembly enveloping the
wearer’s head. Videos demonstrate the condemned will be
strapped to a gurney with limited mobility 5 and, coupled with the
mask’s design, it is not clearly erroneous to find it “highly unlikely”
the mask will dislodge. Even if the mask is an imperfect fit, the
footage exhibits an unsecured mask that, when pumped with a
5 Alabama provided video evidence of volunteers who wore the mask, while
strapped to the gurney and spoke while breathing oxygen through the apparatus. We note that this evidence has limited relevance given the vastly different circumstances the condemned faces—a second execution, by a novel
method, through the use of an inert gas.
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high volume of nitrogen, creates a rapidly hypoxic environment
over the course of 45 seconds. Taken together, it is not clearly erroneous to conclude that the mask will be adequately sealed to create sufficiently severe hypoxic conditions that, according to expert
testimony, will lead to unconsciousness within seconds. Based on
this record, we cannot say the mask is “sure or very likely to” dislodge or permit enough oxygen to infiltrate to create a substantial
risk of severe pain. See Helling, 509 U.S. at 33–34.
In Glossip, the Supreme Court reiterated that “prisoners cannot successfully challenge a method of execution unless they establish that the method presents a risk that is ‘sure or very likely to cause
serious illness and needless suffering’ and give rise to ‘sufficiently
imminent dangers.” 576 U.S. at 877 (quoting Baze, 553 U.S. at 50).
When the district court assessed Smith’s claim, it discussed that
most of Smith’s claims are predicated on “a cascade of unlikely
events.” And considering the underlying factual findings, which
are not clearly erroneous, Smith is unable to meet the high standard that Eighth Amendment jurisprudence requires. 6
We are bound by this record to hold the district court did
not clearly err in its substantial risk of serious harm findings. Because Smith’s claim fails on this prong, his Eighth Amendment
6 We also note that in Glossip, when confronted with little evidence about the
use and effects of midazolam, the Supreme Court explained that the inmate
“bear[s] the burden of persuasion” even if there is a “dearth of evidence.” 576
U.S. at 881–84. The lack of evidence here on the effects nitrogen hypoxia will
have on Smith makes it impossible for us to reverse. Glossip ties our hands.
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claim must fail.7 We consequently must affirm the district court
on its Eighth Amendment holding.
B.
RLUIPA
Under RLUIPA, “[n]o government shall impose a substantial
burden on the religious exercise of a person residing in or confined
to an institution . . . unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means
of furthering that compelling governmental interest.” 42 U.S.C.
§ 2000cc-1(a) (emphasis added). In practice, the person challenging
a policy under RLUIPA bears the initial burden of proving that said
policy implicates and substantially burdens his or her religious exercise. Holt v. Hobbs, 574 U.S. 352, 360 (2015). Once that burden is
met, the burden shifts to the government, which then must prove
that (1) the policy is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that compelling governmental interest. Id. at 362.
7 We do not address Smith’s alternative methods. But we do want to note that
the district court improperly latched on to Alabama’s “veritable blueprint” argument when it faulted Smith’s proposed amendments as “far from providing
a feasible, readily implemented alternative nitrogen hypoxia protocol with his
list of proposed amendments.” But the district court overstates Smith’s “feasible” and “readily implemented” requirement and misreads the holding in
Nance v. Ward, 597 U.S. 159 (2022). The Supreme Court did not state “that a
condemned person proposing an alternative method of execution must provide a veritable blueprint for carrying the death sentence out.” Rather, this
language comes from a factual analogy of that inmate’s proposal—not from a
new legal standard. See 597 U.S. at 169.
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Congress enacted RLUIPA “to provide very broad protection for religious liberty” by subjecting the State to strict scrutiny
whenever it “substantially burdens [a prisoner’s] religious exercise.” Id. at 356 (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 693 (2014)). Under RLUIPA, the term “religious exercise”
broadly “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C.
§ 2000cc-5(7)(A). Audible prayer has been recognized by the Supreme Court as a form of religious exercise with a rich history in
the United States. See Ramirez v. Collier, 142 S. Ct. 1264, 1278–79
(2022).
Here, Smith argues that the Protocol substantially burdens
his ability to audibly pray during the course of his execution because he faces an untenable choice—audibly pray or face a substantial risk of superadded pain or prolonged death due to a dislodged
mask. It is not speculative that Smith would engage in religious
exercise because he both audibly prayed and sang the contemporary hymn “I Am Not Alone” during his failed execution. However, we cannot say that the district court clearly erred when it
found that any risk of the mask gaping or dislodging is speculative
based upon the same factual findings regarding the mask’s design,
fit, and nitrogen volumes above. Without such findings, we cannot
conclude that Smith will be substantially burdened in his ability to
audibly pray during the course of the execution. Based upon this
standard of review, we are bound to accept the district court’s findings as to Smith’s claim and affirm the district court on its RLUIPA
holding.
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C. Evidentiary Issues
Lastly, Smith asserts that the district court abused its discretion in denying his motion to strike Dr. Antognini’s opinion, and
failing to respond, thus implicitly denying, his motion to compel
information predating ADOC’s adoption of the current protocol.
We typically review evidentiary issues for abuse of discretion. Harrison v. Culliver, 746 F.3d 1288, 1297 (11th Cir. 2014). But
we also have an obligation to review sua sponte whether we have
jurisdiction at any point in the appellate process. See Reaves v. Sec’y,
Fla. Dep’t. of Corr., 717 F.3d 886, 905 (11th Cir. 2013).
Generally, interlocutory discovery orders are not immediately appealable. Doe No. I v. United States, 749 F.3d 999, 1004 (11th
Cir. 2014). And we find that the district court’s order did not resolve Smith’s motion to compel information predating ADOC’s
adoption of the current protocol. Because there is nothing for us
to review, we lack jurisdiction. Cf. Kaimowitz v. Orlando, 122 F.3d
41, 43 (11th Cir. 1997) (per curiam).
As to Smith’s motion to strike Dr. Antognini’s opinion, the
district court overruled the objections as it related to Dr. Antognini, explaining that he would take Smith’s arguments “into consideration as it concerns the weight and credibility.” Although still
uncertain about whether the motion has been resolved, we assume
that the district court’s discussion at the hearing denied the motion.
Even though discovery orders are typically not appealable, we may
review such an order if it is “inextricably intertwined” with an issue
before the court. Jones v. Fransen, 857 F.3d 843, 850 (11th Cir. 2017).
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Dr. Antognini’s opinion goes directly to several of the issues in the
preliminary injunction, including the mask fit and whether it
would dislodge during use.
Thus, we have jurisdiction to review the district court’s decision denying Smith’s motion to strike Dr. Antognini’s opinion.
Turning to the merits, the district court has wide discretion on evidentiary rulings. Harrison, 746 F.3d at 1297. “[W]e will not overturn discovery rulings unless it is shown that the District Court’s
ruling resulted in substantial harm to the appellant’s case.” Iraola
& CIA, S.A. v. Kimberly–Clark Corp., 325 F.3d 1274, 1286 (11th Cir.
2003) (internal quotation marks omitted). Smith’s argument focuses on Dr. Antognini’s review of the system at Holman, tests involving the system, and how it was unfair that he was not privy to
this information. But as Alabama notes, Smith’s main argument
involves the type of mask and how it could possibly dislodge.
Smith’s expert, Dr. Nitschke, inspected the mask and provided his
opinion on whether it could become dislodged, as did Dr. Antognini. Smith deposed Dr. Antognini about the opinion8 and had the
opportunity to cross-examine him at the evidentiary hearing.
Thus, the district court did not abuse its discretion in allowing Dr.
Antognini’s opinion.
8 Smith does note that he received Dr. Antognini’s opinion late the night be-
fore Dr. Antognini’s deposition. We appreciate the expedited nature of this
case and the balancing of confidential information, but we are concerned and
disheartened that Alabama’s Office of the Attorney General would wait until
late the night before a deposition to provide an expert opinion report, especially one that was hired before the start of this litigation.
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IV.
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Motion to Stay Execution
The standard governing a stay of execution mirrors that for
a preliminary injunction: the movant must establish a substantial
likelihood of success on the merits. See Valle v. Singer, 655 F.3d 1223,
1225 (11th Cir. 2011) (per curiam). For the reasons we have discussed above, Smith has failed to show a substantial likelihood of
success on the merits of his claims. Accordingly, his motion for a
stay of execution is due to be denied without regard to the other
prerequisites for the issuance of the same.
AFFIRMED.
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Wilson, J., Concurring
1
WILSON, Circuit Judge, Concurring:
The Supreme Court has recognized that death is not painless, and an execution that causes pain “by accident or as an inescapable consequence of death” does not constitute a risk which
rises to an Eighth Amendment violation. Baze v. Rees, 553 U.S. 35,
50 (2008). But the Eighth Amendment does prohibit an execution
that would amount to cruel and unusual punishment. Id. at 51.
With that in mind, Smith may not be constitutionally guaranteed
a painless death, but I have concerns that these circumstances may
rise to a cruel and unusual execution.1
My first apprehension concerns what would occur if Smith
were to vomit after nitrogen has been turned on, because ADOC
has no protocol to handle this situation. Instead, Cynthia StewartRiley, the ADOC Regional Director, testified that the execution
team will do nothing if this were to happen, which could lead
Smith to asphyxiating. And expert testimony established that if
Smith were to vomit once nitrogen is introduced, Smith faces a
likelihood of asphyxiating on his own vomit. 2
1 We have recognized that Alabama has a history of failed executions.
See
Barber v. Governor of Ala., 73 F.4th 1306, 1317 (11th Cir. 2023) (Pryor, J. dissenting) (“Three botched executions in a row are three too many.”).
2 In Dr. Yong’s supplemental declaration, he stated that if Smith is “in a re-
clined position, he will likely inhale vomit and asphyxiate, resulting in painful
sensations of choking and suffocations or even death from asphyxiation.”
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My second concern focuses on Smith’s prior failed execution
and subsequent litigation. For context, I provide a truncated version of past events.
Before his first attempted execution, 3 scheduled for November 17, 2022, Smith repeatedly warned that Alabama would struggle—if not fail—to obtain IV access necessary to complete the lethal injection. Smith alleged that Alabama’s lethal injection protocol would subject him to an Eighth Amendment method-of-execution claim, pointing to evidence of Alabama’s recent mishandling
of condemned inmates with similar difficulties. 4 Smith argued that
Alabama recently deviated from its execution protocol twice and
would likely do so again. The district court denied Smith’s motion,
but we reversed, finding that he pled sufficient facts to plausibly
support his Eighth Amendment claim. On November 17, 2022, at
approximately 8:00 PM CST, we unanimously granted Smith’s
3 If Smith were to be convicted and sentenced today, he would be ineligible
for the death penalty. The jury in his capital murder case recommended a sentence of life imprisonment—by a vote of 11 to 1. A single judge had the power
override the reasoned decision of a jury Smith’s peers and impose the death
penalty himself. Judges no longer have this power, as the Supreme Court has
since held that this sort of unilateral sentencing scheme violates criminal defendants’ Sixth Amendment right to trial by jury. Hurst v. Florida, 577 U.S. 92,
94 (2016). Pertinent here, Smith’s conviction predates Hurst’s mandate.
4 In July 2022, Alabama executed Joe Nathan James. James was behind closed
curtains for over three hours as the execution team sought to gain IV access.
In September 2022, Alabama attempted to execute Alan Eugene Miller. Miller
was strapped to a gurney for two hours, his arms outstretched over his head,
while the execution team attempted to gain IV access.
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request for stay of execution. Before the stay was entered, Alabama
took Smith to the execution chambers. The execution team
strapped Smith to a gurney in the chamber while Alabama sought
to vacate this court’s stay of execution with the United States Supreme Court. And at approximately 10:00 PM CST, the Supreme
Court vacated the stay without explanation. When Alabama’s execution team attempted to gain IV access, Smith explained that
“[the IV Team] began repeatedly jabbing Mr. Smith’s arms and
hands with needles, well past the point at which the executioners
should have known that it was not reasonably possible to access a
vein.” As Smith predicted, Alabama was unable to obtain IV access, and at 11:30 PM CST Alabama called off the execution.
Smith filed an amended complaint to include allegations
from his failed execution. He asserted that a second execution
would constitute cruel and unusual punishment and violate his
equal protection rights. Alabama moved to dismiss the complaint,
but this time, the district court allowed Smith’s Eighth and Fourteenth Amendment claims to proceed, noting that:
[Smith’s] allegations, which must be assumed true at
this stage, go well beyond merely being pricked subcutaneously over a brief period in an attempt to establish an IV line. Rather, Smith’s allegations support
a plausible claim of cruel superadded pain as part of
the execution, as multiple needle insertions over the
course of one-to-two hours into muscle and into the
collarbone in a manner emulating being stabbed in
the chest, in combination with being strapped to the
gurney for up to four hours and at one point being
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placed in a stress position for an extended period of
time, goes “so far beyond what [is] needed to carry
out a death sentence that [it] could only be explained
as reflecting the infliction of pain for pain’s sake.”
Moreover, given Smith’s allegations that he himself
experienced severe pain during a prior execution attempt, and that the prior execution attempt was the
latest in an ongoing pattern of the State’s difficulties
in establishing venous access when attempting to
carry out lethal injection executions, it is plausible, rather than merely possible, that a second lethal injection execution poses a substantial risk of severe pain
to Smith.
The district court directed the parties to develop a case management report under Rule 26 to begin the discovery process. The
district court entered a scheduling order and set a deadline for initial disclosures. The next day (four days before the initial disclosures’ deadline), Alabama moved to dismiss because John Hamm,
Commissioner of ADOC, determined that nitrogen hypoxia would
be an available method of execution. He also affirmed that lethal
injection would not be used in any future attempts to execute
Smith. Smith’s counsel agreed with the injunction to prevent a second execution by lethal injection. However, he objected to the use
of nitrogen hypoxia, as Alabama only provided Smith—and the
court—with a heavily redacted version of their proposed protocol
and sparse detail on how the execution would work in practice.
Nonetheless, the district court granted Alabama’s motion to
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dismiss and entered a permanent injunction barring Alabama from
using lethal injection to execute Smith.
But as our opinion explains, the standard of review governs
our determination on whether the district court made clearly erroneous factual findings. Clear error mandates that “[if] the district
court’s view of the evidence is plausible in light of the entire record,
an appellate court may not reverse even if it is convinced that it
would have weighed the evidence differently in the first instance.”
Barber v. Governor of Ala., 73 F.4th 1306, 1317 (11th Cir. 2023) (quoting Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2349 (2021))
(emphasis added). And, for Smith to prevail, he must show that
those factual findings are clearly erroneous. Like our opinion
notes, Smith has failed to meet this demanding burden. Thus, I
must concur.
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1
JILL PRYOR, Circuit Judge, Dissenting:
The State of Alabama seeks to test an entirely new method
of execution on Kenny Smith, opting for him to die not by lethal
injection, but by nitrogen gas. Alabama proposes to do so even
though its new nitrogen gas protocol has never been tested and despite real doubts about the protocol’s ability to safeguard a condemned person’s constitutional rights. And—critically, as I view
this case—Alabama has chosen this condemned person, this protocol, and this moment, even though Mr. Smith is suffering mentally
and physically from the posttraumatic stress Alabama caused when
it botched its first attempt to execute him in 2022.
What is all of this likely to look like when the time comes
for Mr. Smith to face his death again? He will be escorted by his
executioners to the same execution chamber that was previously
used for the first attempted execution. Inside the chamber, he will
be strapped to a gurney, the same one that held him for hours as he
endured excruciating pain just over a year ago. Nitrogen gas will
begin to flow into the mask. Under these conditions Mr. Smith’s
undisputed posttraumatic stress disorder, which no one contests is
causing him to persistently vomit, will be at its absolute peak. At
the same time, he will experience oxygen deprivation, a known effect of which is vomiting. If Mr. Smith vomits, his executioners
will not intervene—they have told us so—even as vomit fills the
mask and flows into Mr. Smith’s nose and mouth. Then, at last, Mr.
Smith’s body will succumb to the effects of oxygen deprivation,
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asphyxiation, or both. He will die. The cost, I fear, will be Mr.
Smith’s human dignity, and ours. See Hall v. Florida, 572 U.S. 701,
708 (2014).
The Supreme Court has imposed a high bar on a condemned
person seeking to prove that his impending execution will violate
the Eighth Amendment’s guarantee against cruel and unusual punishment. He must show that “the risk of pain associated with the
State’s method is substantial when compared to a known and available alternative.” Bucklew v. Precythe, 139 S. Ct. 1112, 1125 (2019)
(internal quotation marks omitted). The district court found that
Mr. Smith had satisfied neither the substantial risk part of the test
nor the known and available alternative part. As for the known and
available alternative part, the district court legally erred in applying
a “veritable blueprint” standard. See Maj. Op. at 22 n.7. Without
addressing Mr. Smith’s proposed amendments to the nitrogen gas
protocol, I would hold that he has identified firing squad as a
known and available alternative.
I part with the majority opinion because I believe the district
court clearly erred in its factual findings regarding the substantial
risk part of the Supreme Court’s Eighth Amendment test. The district court said Mr. Smith’s claim that he is likely to vomit during
the execution while nitrogen is flowing is “possible only upon the
occurrence of a cascade of unlikely events.” But the record shows
that Mr. Smith is likely to vomit, both because of the undisputed
effects of oxygen deprivation and because of the undisputed activation of his posttraumatic stress disorder from the first botched
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execution attempt, of which his persistent vomiting is a documented symptom. Because no one will intervene if he vomits, his
vomit will flood his face, both nose and mouth. And the record reflects that when a person inhales vomit and asphyxiates, he experiences “painful physical sensations of choking and suffocation.” As I
see it, this cascade of likely events is, in turn, likely to prolong or
superadd pain and suffering to Mr. Smith’s death. I view the district
court’s findings of fact otherwise as clearly erroneous. And given
the record evidence about the effects of this execution on this individual, I would conclude that Mr. Smith has shown a substantial
likelihood of success on the merits of his Eighth Amendment claim,
and I would not allow his execution to proceed. 1
Respectfully, I dissent.
1 Because I would
enjoin Mr. Smith’s execution on Eighth Amendment
grounds, I would not reach his remaining claims in this appeal.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KENNETH EUGENE SMITH,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
JOHN Q. HAMM, et al.,
Defendants.
CASE NO. 2:23-cv-656-RAH
[WO]
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Kenneth Eugene Smith was convicted of capital murder and sentenced to
death in 1996. He is now scheduled for execution via a new method—nitrogen
hypoxia—on January 25, 2024. This is the State of Alabama’s second attempt to
execute Smith, the first attempt at execution by lethal injection having failed. Both
before and after the failed first attempt, Smith voiced his preference that any
execution be conducted by nitrogen hypoxia. After the failed first attempt, the State
of Alabama honored Smith’s request and notified him of its intent to execute him by
nitrogen hypoxia. Now, and unsurprisingly, Smith objects to that method too, at
least under Alabama’s current protocol. He also offers up amendments to the current
protocol and Utah’s firing squad execution protocol as feasible and readily
implemented alternative methods. He challenges his current execution method
pursuant to 42 U.S.C. § 1983 under the First, Eighth, and Fourteenth Amendments
to the United States Constitution, the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., and the Alabama Constitution’s
Religious Freedom Amendment (ARFA), Ala. Const. amend. 622.
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Smith has moved for a preliminary injunction to enjoin Defendants John Q.
Hamm (Commissioner of the Alabama Department of Corrections) and Terry
Raybon (Warden at the William C. Holman Correctional Facility), in their official
capacities, from executing him under Alabama’s current nitrogen hypoxia protocol
(Protocol). The Defendants have moved to dismiss Smith’s Second Amended
Complaint (SAC), the operative one. The motions are ripe for review. For the
reasons that follow, the court will grant in part and deny in part the Defendants’
motion to dismiss and will deny Smith’s motion for preliminary injunction.
II. BACKGROUND
Sometime in mid-August 2023, Hamm formally approved a nitrogen hypoxia
execution protocol, the first protocol of its kind in the United States. On August 25,
2023, the State of Alabama, through the Office of the Attorney General, moved for
an order from the Alabama Supreme Court authorizing the Alabama Department of
Corrections (ADOC) to carry out Smith’s death sentence by means of nitrogen
hypoxia within a time frame set by the Governor of Alabama. Over Smith’s
opposition, the Alabama Supreme Court granted the Attorney General’s motion and
ordered Hamm to carry out Smith’s death sentence within the time frame set by the
Governor. The Governor then set Smith’s execution for a thirty-hour time frame
between January 25, 2024, and January 26, 2024. Smith then filed the instant
lawsuit.
A. Smith’s Capital Litigation History
In 1988, Elizabeth Dorlene Sennett was found dead in her home. Smith v.
State, 908 So. 2d 273, 279 (Ala. Crim. App. 2000), cert. denied, 546 U.S. 928 (2005),
denying stay of execution, 143 S. Ct. 440 (2022). She was stabbed eight times in the
chest and once on each side of her neck. In 1996, an Alabama jury convicted Smith
of murdering Sennett for $1,000 and recommended a sentence of life imprisonment
without the possibility of parole by an 11-to-1 vote. The trial judge however
2
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overrode the jury’s recommendation and sentenced Smith to death. After pursuing
conventional post-trial and post-conviction relief in state court, including a direct
appeal of his conviction and sentence and his first Rule 32 action, Smith filed for
federal habeas relief pursuant to 28 U.S.C. § 2254, seeking to reverse his conviction
and sentence, which the United States District Court for the Northern District of
Alabama denied. Smith v. Dunn, No. 2:15-cv-0384-AKK, 2019 WL 4338349 (N.D.
Ala. Sept. 12, 2019), aff’d, 850 F. App’x 726 (11th Cir. 2021), cert. denied, 142 S.
Ct. 1108 (2022).
On August 18, 2022, and after the Attorney General sought an execution date,
Smith filed his first method-of-execution action challenging Alabama’s lethal
injection protocol. Smith v. Hamm, No. 2:22-cv-497-RAH, 2022 WL 10198154
(M.D. Ala. Oct. 16, 2022). In that action, Smith asserted that execution by lethal
injection violated his Eighth Amendment rights, and he further asserted that nitrogen
hypoxia was his preferred method of execution because it was an available and
feasible alternative method.
Smith also sought a preliminary and permanent
injunction against the ADOC’s plan to execute him by lethal injection.
On
September 30, 2022, the Alabama Supreme Court authorized Smith’s execution and
the Governor thereafter set his execution for November 17, 2022.
After the defendant (Hamm) moved to dismiss that action, Smith’s complaint
was dismissed and his later attempt to alter or amend the dismissal ruling with an
amended complaint was denied. Smith v. Hamm, No. 2:22-cv-497-RAH, 2022 WL
16842050 (M.D. Ala. Nov. 9, 2022). On appeal, the Eleventh Circuit reversed,
holding that Smith’s proposed amended complaint stated a plausible Eighth
Amendment claim. Smith v. Comm’r, Ala. Dep’t of Corr., No. 22-13781, 2022 WL
17069492 (11th Cir. 2022) (per curiam), cert. denied, No. 22-580, 143 S. Ct. 1188
(2023).
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The same day the Eleventh Circuit ruled, and the day of his execution, Smith
moved for a preliminary injunction seeking an order enjoining the defendants from
executing him by lethal injection. He also sought an emergency stay of execution.
Both requests were denied. Smith v. Hamm, No. 2:22-cv-497-RAH, 2022 WL
17067498 (M.D. Ala. Nov. 17, 2022). Smith appealed again that day. The Eleventh
Circuit then granted a temporary stay of execution, Smith v. Comm’r, Ala. Dep’t of
Corr., No. 22-13846-P, 2022 WL 19831029 (11th Cir. 2022), which the United
States Supreme Court vacated several hours later, Hamm v. Smith, No. 22A441, 143
S. Ct. 440 (2022).
With the green light to proceed, at approximately 8:00 p.m. that evening,
ADOC officials attempted to execute Smith via lethal injection. The ADOC was
unsuccessful with its efforts despite trying to access Smith’s veins for over 90
minutes. Smith v. Hamm, No. 2:22-cv-497-RAH, 2023 WL 4353143, at *3 (M.D.
Ala. July 5, 2023). The execution was terminated just before midnight.
After the failed execution attempt, Smith’s lethal injection litigation
continued, this time with another amended complaint that also included the Alabama
Attorney General as a defendant. During that litigation, Smith, through counsel,
continued to represent in court proceedings that nitrogen hypoxia was his preferred
method of execution. On August 25, 2023, the defendants moved to dismiss the
case, stating that Smith’s challenge to lethal injection was now moot because the
defendants had agreed never to attempt to execute Smith by lethal injection again
and that the Attorney General had moved to reset Smith’s execution, this time by
nitrogen hypoxia. On September 20, 2023, Smith’s lethal injection case was
dismissed for lack of a live case or controversy and the defendants were enjoined
from conducting any future execution of Smith by lethal injection. Smith v. Hamm,
No. 2:22-cv-497-RAH, Final Judgment & Order (M.D. Ala. Sept. 20, 2023).
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On May 12, 2023, Smith filed a second Rule 32 petition in state court (the
Circuit Court of Jefferson County, Alabama) related to the failed execution attempt
by lethal injection, seeking to prevent the State of Alabama from attempting to
execute him a second time by any means; that is, relieve him of his death sentence
(Doc. 58-1 at 30.) The state trial court dismissed Smith’s petition, and the Alabama
Court of Criminal Appeals affirmed that dismissal on December 8, 2023. (Id. at 39.)
On December 18, 2023, Smith petitioned for a Writ of Certiorari in the Alabama
Supreme Court. (Id. at 2.) As the court writes, that petition remains pending.
B. Alabama’s Novel Nitrogen Hypoxia Execution Protocol
In June 2018, Alabama’s statutory amendment allowing execution by nitrogen
hypoxia as an approved method of execution went into effect. Ala. Code § 15-1882.1(b).
Although condemned inmates have offered nitrogen hypoxia as the
preferred feasible and readily implemented alternative method of execution in their
capital § 1983 litigation challenging lethal injection, Smith, No. 2:22-cv-497-RAH,
2023 WL 4353143, at *5; Bucklew v. Precythe, 139 S. Ct. 1112, 1129–30 (2019);
Price v. Comm’r, Dep’t of Corr., 920 F.3d 1317, 1328 (11th Cir. 2019); Miller v.
Hamm, No. 2:22-cv-506-RAH, 2022 WL 4348724, at *3 (M.D. Ala. Sept. 19, 2022),
the Attorney General’s office and the ADOC maintained, until just a few months
ago, that nitrogen hypoxia was not a feasible and available method because the
ADOC had not yet formalized and approved an execution protocol for it. Then, in
August 2023, with no warning that it was coming, the Attorney General’s office
announced the finalization of the Protocol.
Maintaining the ADOC’s familiar veil of secrecy over its capital punishment
procedures, the public version of the Protocol is heavily redacted. But its 40 pages
contain provisions and instructions for ADOC officials to follow from the time the
ADOC receives word that an execution directive has been issued by the Alabama
Supreme Court and Governor to the time of the inmate’s interment after execution,
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including detailed procedures for carrying out the State of Alabama’s three approved
methods of execution: electrocution, lethal injection, and nitrogen hypoxia.
The present action concerns the Protocol’s nitrogen-hypoxia-specific
provisions. These provisions contain detailed directives and warnings about gas
usage in an enclosed space; training; and inspections, testing, calibration, and use of
atmospheric monitors, gas measurement devices, pulse oximeters, tubing, masks,
and other devices. (Doc. 31-1.) The Protocol also contemplates the attendance of
the condemned inmate’s spiritual advisor in the execution chamber and securing and
checking the mask.
C. The Present Action
The SAC is the governing pleading. In it, Smith pleads five causes of action
against two defendants, John Q. Hamm, in his official capacity as the ADOC
Commissioner, and Terry Raybon, in his official capacity as Warden of the William
C. Holman Correctional Facility. Smith seeks declaratory and injunctive relief.
1. Fourteenth Amendment Claim
In Count One, Smith asserts a claim under the Fourteenth Amendment.1 He
asserts that the State of Alabama’s custom is to wait to move for an inmate’s
execution until after the inmate has exhausted his conventional appeals, and that
here, Smith “has not exhausted his appeals.” (Doc. 31 at 29.) He alleges that his
appeal from his Second Petition for Relief from Death Sentence Under Alabama Rule
of Criminal Procedure 32, filed on May 12, 2023, seeking an order altogether
relieving him of his death sentence, remains pending. He further alleges that “[o]ther
condemned people in Alabama who elected to be executed by nitrogen hypoxia five
years ago have exhausted their appeals” and therefore the “Defendants’ actions
1
For ease of reference, Smith’s claims for relief will be referred to as Counts One, Two, Three,
Four and Five, instead of his First Claim for Relief, Second Claim for Relief, etc. as used in the
SAC.
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toward Mr. Smith are arbitrary and capricious and violate its own stated custom
regarding selecting condemned people for execution.” (Doc. 31 at 29.) This,
according to Smith, is not rationally related to a legitimate government purpose and
therefore violates his Fourteenth Amendment rights.
2. Eighth Amendment Claim
In Count Two, Smith asserts that the Defendants’ intention to execute him by
nitrogen hypoxia under this Protocol would expose him to a “severe risk of a
persistent vegetative state, a stroke, or the painful sensation of suffocation, i.e.,
superadded pain” and that there are feasible and readily implemented alternatives
that would reduce the risk to him either by amending the Protocol or executing him
by firing squad using Utah’s protocol. (Id. at 31.) He alleges, “[i]t is clear that the
consequences of attempting an execution by nitrogen hypoxia using ADOC’s
deficient Protocol will be dire. If not performed correctly, execution by nitrogen
hypoxia can result in another failed execution that risks leaving Mr. Smith with
permanent injuries.” (Id. at 4.) Smith asserts that death by nitrogen hypoxia exposes
him to a severe risk of superadded pain, including hypoxemia and hypoxia short of
death.
In particular, he alleges that the Protocol does not contain guidance on the
type of mask to be used; how, when, and by whom it will be placed, adjusted, and
inspected; how variations in the physical characteristics of the inmate, such as facial
hair and obesity, can increase the mask’s ventilation through breach of the mask’s
seal; what training the ADOC execution team will receive; how the ADOC will
conduct a final inspection to determine if the mask has been properly placed; and
what will happen if the mask becomes displaced or dislodged during the execution
process. All, Smith alleges, could result in the infiltration of oxygen inside the mask,
thereby increasing time to unconsciousness and increasing the risk of dire
consequences such as a vegetative state, a stroke, or the painful sensation of
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suffocation. He also alleges that allowing an inmate to speak with the mask on will
increase the possibility that the mask could dislodge and break the seal. He further
alleges that the Protocol does not provide for the removal of exhaled carbon dioxide,
does not specify the purity of nitrogen gas to be used, and does not require
monitoring of the pulse oximeters after nitrogen is introduced. Smith also claims
the Protocol fails to account for the possibility that he could vomit inside the mask
thereby causing him to choke, a possibility due to his diagnosed post-traumatic stress
disorder (PTSD), depression, and anxiety attributable to the circumstances
surrounding his current situation and the previously failed execution attempt. He
claims that procedures should be implemented to account for these issues, including:
the use of a custom fit mask; allowing him to speak, including his prayers and final
statement, before placement of the mask; adding a mechanism to remove carbon
dioxide from the mask; use of 100% pure nitrogen; disclosure of the source of the
nitrogen and testing of it; inclusion of procedures to test the nitrogen; monitoring of
the pulse oximeter; halting the execution if vomiting occurs; accounting for Smith’s
PTSD and depression; and having a licensed medical provider present.
Alternatively, Smith alleges the Defendants should execute him by firing squad
consistent with the protocol used by the State of Utah.
3. First Amendment, RLUIPA, and ARFA Claims
In Counts Three, Four, and Five, Smith alleges that his First Amendment and
religious freedom rights under RLUIPA and ARFA will be violated because
“[m]asking will interfere with Mr. Smith’s right to make an audible statement and
to pray audibly” and “any statement or prayer may not be audible and may risk
consequences associated with dislodging the mask and/or building the level of
carbon dioxide under the mask.” (Doc. 31 at 31.) He also alleges that the Protocol
burdens his exercise of religion because it forces Smith to “choose between
abstaining from his religious practice of audible prayer at the end of his life or face
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the dangerous consequences of dislodging the mask while praying.” (Doc. 31 at 32–
33.)2
D. Evidence Presented at the December 20, 2023, Hearing
On December 20, 2023, the court held a hearing on Smith’s preliminary
injunction request. The court admitted 58 exhibits from Smith and 53 exhibits from
the Defendants. Among other things, the evidence included: declarations from
expert witnesses, Smith, and other party and non-party witnesses; case reports and
articles discussing hypoxia in the context of industrial accidents and assisted
suicides; medical articles concerning the respiratory system and anesthesiology; and
several videos of individuals donning the mask the Defendants intend to use for
Smith’s execution.
The Defendants also presented the court with the mask
apparatus, which the court examined in detail.3 Smith called five witnesses: Dr.
2
Smith also claims that he has been placed on “single walk” status, “which means that he cannot
share the same space with other” inmates, “some of whom he has developed familial relationships
with over decades.” (Doc. 31 at 26.) Smith alleges the Protocol is further deficient because it is
silent on “single walk” status even though “Defendants intend to maintain Mr. Smith isolated from
his brothers on that status for 78 days through his planned execution.” (Id.) By his account, “single
walk” status “deprives Mr. Smith of the fellowship of his brother inmates when he needs their
friendship most. . . [and] deprives him of the companionship of his family during this critical
period.” (Id.) While he is on “single walk” status, “Smith’s family cannot schedule a visit with
him when any other Holman inmate has a scheduled visit[,]” and the status “interferes with his
relationship with his counsel when he needs their advice most because their visits are constrained
for the same reason.” (Id.) “And while Defendants recently permitted Mr. Smith to select one
religious service that he will be permitted to attend each week accompanied by two corrections
officers, his ‘single walk’ status also burdens the exercise of his religion.” (Id.) Although he
generally makes these allegations, he does not raise them in Counts Three, Four and Five.
3
The court’s examination of the mask apparatus revealed it to be a NIOSH-approved, industrial
grade, continuous flow supplied-air respirator mask with an adjustable five point harness system
and a pliable, double flange rubber seal that would tightly fit and hold the mask over the entirety
of the wearer’s face—including eyes, nose, mouth, and chin—that also contained a one-way valve
near the mouth and nose allowing for the exit of exhaled gases, including carbon dioxide. Such
masks are often used in industrial settings involving confined spaces and chemical processes where
external air conditions are or can be dangerous. The mask is very different from those encountered
in a medical or hospital setting or used to deliver continuous air pressure to individuals diagnosed
with sleep apnea, i.e., CPAP machines.
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Robert Jason Yong, Defendant John Q. Hamm, Dr. Philip Nitschke, Smith, and Dr.
Katherine Porterfield.
The Defendants called, and made available for cross-
examination, nine witnesses: Dr. Joseph Antognini, Cynthia Stewart-Riley, James
Houts, and six assistant attorneys general who were videoed wearing the mask in the
execution chamber while also breathing and speaking.
The court need not repeat or summarize all the testimony and declarations
here but will summarize relevant portions of the testimony several witnesses
provided during the hearing.
During the hearing, Dr. Yong, an anesthesiologist and pain doctor with
expertise in the respiratory system and ventilation, testified about nitrogen hypoxia
and the use of masks to deliver gas. In his declaration, he testified that “[b]reathing
in 100% nitrogen gas would result in hypoxemia, eventual end-organ damage, and
ultimately death.” (Doc. 19-1 at 6.) But he also voiced concerns about the use of
anything less than 100% pure nitrogen and a mask delivery system in general.4 His
concerns about the mask included that the mask may not properly fit due to
variations in the physical characteristics of wearers, such as nose structure and facial
hair; dislodgment of the mask if a wearer resists or is noncompliant, turns his head,
speaks, or suffers a seizure; the failure of the mask to allow for the removal of
exhaled carbon dioxide; and vomiting inside of the mask—all of which could result
in the condemned inmate experiencing a persistent vegetative state, stroke,
suffocation, choking, or other complications short of death. At the hearing, Dr. Yong
testified that there is “not an abundant body of literature” or case reports to allow for
concrete scientific conclusions about what will happen to a person subject to the
current Protocol. And concerning whether nitrogen hypoxia could leave a person in
a persistent vegetative state, he said there are a very small number of OSHA reports
4
No testimony was provided that Dr. Yong has seen, viewed, or examined the mask that the
Defendants intend to use. As such, his opinions were largely theoretical.
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in total and no report states such a vegetative state has or would actually occur. He
further testified that there is no data to conclude with certainty the time to
unconsciousness under conditions with no or minimal oxygenation because the
science is experimental and that any conclusions he has made in his declaration
concerning the time to unconsciousness under the Protocol amount to extrapolations
from industrial disasters or assisted suicides. Dr. Yong also testified that the
Protocol lacks a “nothing by mouth” order by which a condemned inmate would be
prohibited from consuming food for an amount of time prior to the execution to
avoid, or minimize the risk of, vomiting during the execution process.
Defendant Hamm testified that he alone, pursuant to his duty as
Commissioner of the ADOC, approved and adopted the Protocol. He did not recall
whether he had considered an alternative to the mask, such as a hood, to deliver
nitrogen to the condemned inmate. He testified it is and will be his responsibility to
determine whether an execution fails and at what moment to call off an execution
attempt.
Dr. Nitschke, a medical doctor with expertise in assisted suicides and a PhD
in Physics, opined that the risks he gleaned from the Protocol could subject Smith
“to incomplete cerebral hypoxia. A resultant vegetative state with permanent brain
damage cannot be excluded.” (Doc. 19-2 at 8.) He inspected the nitrogen delivery
system, and mask (including the mask user manual) the Defendants intend to use
during Smith’s execution as well as the declaration of Dr. Antognini, the
Defendants’ expert witness. At the hearing, Dr. Nitschke testified to the use of a bag
delivery system, as opposed to a mask, during assisted suicides to reduce the risk of
outside air infiltration during nitrogen delivery. He also testified it is possible for a
person exposed to nitrogen via a bag delivery system to experience nausea.
Smith testified that he was put on “single-walk” status after a prison official
informed him that the Governor had set his execution date. He testified that “single11
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walk” status deprived him of the close relationships he developed with his fellow
inmates and that his status limits his availability for visitation because he cannot
have a visitor at the same time any other inmate has a visitor. He also testified that
he and his spiritual advisor have agreed to a plan on the day of his execution, which
includes praying audibly, communion, reading of scripture, and the spiritual advisor
anointing Smith with oil.
Dr. Porterfield, a clinical psychologist from New York with expertise in
treating survivors of torture and war trauma, examined Smith after the previous
failed execution attempt. Dr. Porterfield opined that, due in large part to the failed
execution, Smith suffers from PTSD and depression, and that the experience from
the upcoming execution “will likely create a panic reaction that is totally
destabilizing to his mind and nervous system” and “will most certainly cause him
severe suffering, destabilization and psychological deterioration.” (Doc. 19-3 at 35.)
At the hearing, Dr. Porterfield acknowledged that Smith did not report to her that he
has vomited as a result of PTSD or depression, and that he did not report nausea
during his previous failed execution attempt. She also testified that it is possible but
not certain that Smith may experience nausea during the next execution attempt.
Dr. Antognini, an anesthesiologist, submitted a declaration and supplemental
declaration. He stated that, in his professional opinion, the Protocol will result in a
likely 35 to 40 second time to unconsciousness, death in 10 to 15 minutes after
nitrogen begins flowing, and will not cause carbon dioxide rebreathing, significant
leakage that will allow outside air to enter the mask, significant suffering or pain, or
result in brain damage, persistent vegetative state, or stroke short of death. (Docs.
62-60; 62-61.) At the hearing, Dr. Antognini testified that he has never induced
nitrogen hypoxia in a person or published articles related to administering nitrogen
to a person. But he has inspected the subject mask and has arrived at his conclusions
based upon his own research, relying in part on internet searches, his credentials,
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and his scientific background. He testified that although no human data exists for
the time to unconsciousness by nitrogen hypoxia, death will occur when the oxygen
level in a person’s breathing environment reaches less than six percent.
Stewart-Riley, the ADOC Regional Director, submitted a declaration and two
affidavits, stating among other things that the ADOC has not found and is not aware
of any study or scientific literature evidencing that the selected mask would increase
the risk of harm to Smith were he to vomit during the execution. At the hearing, she
testified to her knowledge of the Protocol.
The court also reviewed the declarations of Thomas R. Govan, Jr., Audrey
Jordan, Alana K. Cammack, Lauren Simpson, Jasper B. Roberts, Jr., and Cameron
Ball, all of whom were videoed wearing the mask in the execution chamber and
audibly speaking while wearing the mask. At the hearing, Simpson, Ball, and
Roberts testified to their experience wearing the mask.
Houts, an attorney and retired military officer, submitted a declaration opining
favorably on the Protocol. At the hearing, he testified that he is not an expert on the
development of nitrogen hypoxia execution protocols and is unsure whether such an
expert exists.
III. JURISDICTION AND VENUE
The court has original subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331. Personal jurisdiction and venue are uncontested, and the court concludes
that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.
IV. DISCUSSION
The court will first consider the Defendants’ motion to dismiss and then
dispose of Smith’s motion for preliminary injunction on the remaining claims.
A. The Defendants’ Motion to Dismiss
The Defendants have moved to dismiss each of Smith’s claims under Federal
Rule of Civil Procedure 12(b)(6). In ruling upon a Rule 12(b)(6) motion, a court
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considers only the allegations contained in the complaint and any attached exhibits.
Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016). A Rule 12(b)(6)
motion tests the sufficiency of the complaint against the legal standard set forth in
Federal Rule of Civil Procedure 8, which requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
court must take “the factual allegations in the complaint as true and construe them
in the light most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282,
1284 (11th Cir. 2008). However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at
678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining
whether a complaint states a plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 679. But if the facts in the complaint “do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘shown’—‘that the pleader is entitled to relief,’” and the complaint must be
dismissed. Id. (alteration adopted) (citing Fed. R. Civ. P. 8(a)(2)).
1. The Eighth Amendment Claim
For clarity, the constitutionality of capital punishment is not before the court.
The death penalty is constitutional, see Baze v. Rees, 553 U.S. 35, 47 (2008) (citing
Gregg v. Georgia, 428 U.S. 153, 177 (1976)), and it is in force in Alabama. The
State of Alabama elected not to join 23 of its sister states in abolishing the death
penalty, so the unenviable task falls to this court to decide whether Alabama’s
newest method of execution, one Smith himself previously declared was his
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preferred method of execution, inflicts cruel and unusual punishment in violation of
the Eighth Amendment. See U.S. Const. amend. VIII.
Smith contends the Protocol, in its current form, exposes him to a substantial
risk of severe and superadded pain although feasible, readily implemented
alternative methods of execution exist—like an amended Protocol or death by firing
squad—that would significantly reduce that risk.
The Defendants raise several arguments in support of dismissing the claim as
set forth in Count Two, with particular emphasis on the doctrine of estoppel and, to
a much lesser extent, issue preclusion. They claim Smith is estopped from bringing
an Eighth Amendment challenge to nitrogen hypoxia because, in his previous
lawsuit, he successfully argued that nitrogen hypoxia was a feasible, readily
implemented alternative method of execution. They also note that Smith repeatedly
stated that nitrogen hypoxia was his preferred method of execution even though he
knew it was untested and that no protocol existed. See generally, Smith, No. 2:22cv-497-RAH, 2023 WL 4353143. By repeatedly pointing to nitrogen hypoxia as his
preferred method, Smith even achieved an injunction enjoining the Defendants from
ever again attempting to execute him by lethal injection. (Doc. 39-11.) Thus,
according to the Defendants, Smith is taking a “new and contradictory position” in
this action by now opposing his execution by nitrogen hypoxia “simply because his
interests have changed,” (Doc. 39 at 34–35 (quoting New Hampshire v. Maine, 532
U.S. 742, 749 (2001))), and he now seeks to delay his execution by “attempting to
manipulate the judicial process to his benefit,”5 (id. at 37).
5
The Defendants cite one judge’s statement, 22 F.4th 621 (Mem.), concerning the Sixth Circuit’s
recent denial of rehearing en banc in Middlebrooks v. Parker, 15 F.4th 784 (6th Cir. 2021), a
§ 1983 method-of-execution case in which the Sixth Circuit reversed the district court’s dismissal
of a facial challenge to Tennessee’s three-drug lethal injection protocol because it concluded the
challenge was barred by the doctrine of res judicata. That judge suggested, “[i]n future cases,
states might consider arguing that judicial estoppel bars inmates from making inconsistent claims
in order to delay proceedings.” 22 F.4th at 628. So, the Defendants did. That judge may well be
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The equitable doctrine of estoppel is intended to “prevent the perversion of
the judicial process” and “protect [its] integrity . . . by prohibiting parties from
deliberately changing positions according to the exigencies of the moment.” Slater
v. United States Steel Corp., 871 F.3d 1174, 1180 (11th Cir. 2017) (en banc)
(alterations in original) (quoting New Hampshire, 532 U.S. at 749–50). When a
party does so, the doctrine of estoppel allows a court to exercise its discretion to
dismiss the party's claims. Id. To determine its application, courts look to “whether
(1) the party took an inconsistent position under oath in a separate proceeding, and
(2) these inconsistent positions were ‘calculated to make a mockery of the judicial
system.’” Id. (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th
Cir. 2002)). The court must consider Smith’s actions and motive and determine
whether his current claim is the result of “cold manipulation” and not “inadvertence
or mistake.”
Id. at 1881 (brackets omitted) (quoting Johnson Serv. Co. v.
Transamerica Ins. Co., 485 F.2d 164, 175 (5th Cir. 1973)).
It is not lost on the court that Smith vehemently argued for execution by
nitrogen hypoxia in his previous litigation only several months ago when he was
scheduled for execution by lethal injection. He likely did so under the belief that the
ADOC was nowhere near finalizing and issuing a final nitrogen hypoxia protocol,
thereby placing Smith, like any condemned inmate subject to a nitrogen hypoxia
execution, in an indefinite holding pattern while other lethal injection executions
went forward. Now that Alabama is prepared to carry out his sentence using the
method of execution he has consistently declared he prefers, the circumstances have
changed. And what was once highly unlikely is now a certainty. With that change,
right, but such gatekeeping is outweighed where, such as here, a condemned inmate properly
brings a plausible challenge when he “becomes subject to a new or substantially changed execution
protocol.” Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 873 (11th Cir. 2017) (citations
omitted).
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Smith now seeks to enjoin the Defendants from carrying out his death sentence using
the Protocol, arguing it unconstitutionally superadds pain such that the court should
order the Defendants to amend it or execute him by firing squad, a “relatively
uncommon and archaic” method. Nance v. Comm’r, Ga. Dep’t Corr., 59 F.4th 1149,
1155 (11th Cir. 2023) (Nance III) (quoting the State’s brief). On that basis, the
Defendants assert estoppel. But the details here compel rejecting the application of
estoppel, or issue preclusion to the extent the Defendants invoke it.
Eighth Amendment jurisprudence holds that a condemned inmate has a new
“method of execution claim [that] accrues on the later of the date on which state
review [of his conviction and sentence] is complete, or the date on which the capital
litigant becomes subject to a new or substantially changed execution protocol.”
Boyd, 856 F.3d at 873 (citations omitted).
In this case, Smith does not challenge nitrogen hypoxia as a method of
execution per se. Rather, he challenges the current procedure by which it will be
carried out. The novelty of the Protocol and that Smith is to be the first condemned
inmate executed under it are undisputed facts. The Protocol did not exist or, at least,
was not approved for use and made publicly known until after the Attorney General’s
office moved for dismissal of Smith’s prior lethal injection litigation last August and
September. Smith’s claim here did not accrue until the Attorney General moved for,
and the Alabama Supreme Court authorized, his execution under the novel Protocol.
It goes without saying that many capital cases come to the federal court system
with the primary or sole aim of delaying execution indefinitely. And inherent in
many if not every capital case is the condemned inmate’s goal to altogether avoid
his death sentence. It is human. But in Smith’s previous lawsuit, the Protocol was
not yet approved or fully made known, and he was not yet subject to it. So, he was
unable to fully and fairly litigate the Eighth Amendment claim that he now brings in
this case. Applying estoppel or issue preclusion here would work a mockery of the
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Eleventh Circuit’s recognition that condemned inmates must be allowed a vehicle to
challenge new and substantially changed execution protocols. The court refuses to
apply either doctrine here.
The Defendants next argue that Smith’s Eighth Amendment claim is far too
speculative to state a claim because he has failed to plead plausible facts showing an
actual risk that he will suffer superadded pain under the Protocol and that “ADOC
officials are aware of, but are disregarding, known substantial risks” of severe pain.
(Doc. 39 at 38, 47–48.) Notably, the Defendants do not argue at this stage that
Smith’s identification of Utah’s execution protocol for the firing squad fails to
identify a “feasible, readily implemented” alternative, but the Defendants do argue
that Smith’s proposed amendments to the Protocol fail as a satisfactory alternative
under Bucklew and Nance III.
To state a plausible method-of-execution claim, Smith must (1) show that the
challenged method “presents a risk that is ‘sure or very likely to cause serious illness
and needless suffering,’ and gives rise to ‘sufficiently imminent dangers’”; and (2)
identify “an alternative that is feasible, readily implemented, and in fact significantly
reduce[s] a substantial risk of severe pain and that the state has refused to adopt
without a legitimate penological reason.” Price, 920 F.3d at 1325–26 (quoting
Glossip v. Gross, 576 U.S. 863, 877 (2015), Baze, 553 U.S. at 50–51, and Bucklew,
139 S. Ct. at 1129). Deciding “whether the State has cruelly ‘superadded’ pain to
the punishment of death isn’t something that can be accomplished by examining the
State’s proposed method in a vacuum, but only by ‘compar[ing]’ that method with a
viable alternative.” Bucklew, 139 S. Ct. at 1126 (alterations in original). The
comparison “‘provides the needed metric’ to measure whether the State is lawfully
carrying out an execution or inflicting ‘gratuitous’ pain.” Id. (citation omitted).
Smith’s burden under this legal test can be “overstated,” so the Supreme Court
has clarified that a condemned person “seeking to identify an alternative method of
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execution is not limited to choosing among those presently authorized by a particular
State’s law.” Id. at 1128. Nonetheless, Smith “faces an exceedingly high bar”
because the Supreme Court “has yet to hold that a State’s method of execution
qualifies as cruel and unusual, and perhaps understandably so. Far from seeking to
superadd terror, pain, or disgrace to their executions, the States have often sought
more nearly the opposite[,]” id. at 1124, that is, “more humane way[s] to carry out
death sentences,” Glossip, 576 U.S. at 868.
In support of their contention that Smith’s allegations are too speculative to
state a claim, the Defendants primarily rely upon six decisions—Baze; Wellons v.
Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260 (11th Cir. 2014); Ferguson v. Warden,
Fla. State Prison, 493 F. App’x 22 (11th Cir. 2012); Pardo v. Palmer, 500 F. App’x
901 (11th Cir. 2012); Jackson v. Danberg, 594 F.3d 210 (3d Cir. 2010); Wackerly v.
Jones, 398 F. App’x 360 (10th Cir. 2010). But none of those decisions were before
courts on a motion to dismiss where, as here, the allegations are assumed true. Each
of those cases, except Baze, reviewed the condemned inmate’s Eighth Amendment
claim under preliminary injunction or summary judgment standards. Although
informative to the court’s later preliminary injunction analysis, the Defendants’ cited
authority offers little in support of their argument that Smith has failed to state a
plausible Eighth Amendment claim under a Rule 12(b)(6) attack.
Here, Smith has alleged several imminent dangers—improper fit of the mask;
the potential for the mask to dislodge from its sealed position for a variety of reasons
such as speaking, praying, or vomiting; vomiting; the introduction of oxygen into
the mask; and the lack of monitoring of the pulse oximeters during the execution—
that he also alleges present risks that are sure or very likely to increase the time for
Smith to reach a state of unconsciousness and “would expose [him] to a severe risk
of a persistent vegetative state, a stroke, or the painful sensation of suffocation, i.e.,
superadded pain.” (Doc. 31 at 22, 31.) Smith has further alleged two alternative
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methods that he says would in fact reduce the risk of severe or superadded pain and
needless suffering he avers the current Protocol is sure or very likely to cause: (1)
amending the Protocol to incorporate several changes he identifies in Paragraph 102
of the SAC or (2) carrying out his execution by firing squad using Utah’s protocol.
(Id. at 27–28.)
Taking Smith’s allegations as true at this stage of the litigation, as the court
must, Smith has alleged facts beyond “a formulaic recitation of the elements of a
cause of action,” and his allegations have a sufficient basis in fact “to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555. Smith has pled that
the Protocol could and will increase the time to unconsciousness and will present
imminent dangers and superadd pain in the form of a persistent vegetative state,
stroke, or the sensation of suffocation.
He has alleged two feasible, readily
implemented alternative methods that he says will reduce the risk of that harm.
Together, those dangers—as compared to Smith’s allegations about his proposed
alternative methods—amount to “a ‘substantial risk of serious harm’—severe pain
over and above death itself[.]” Nance v. Ward, 597 U.S. 159, 164 (2022) (Nance II).
He has therefore pled a plausible Eighth Amendment claim, cf. Smith, No. 22-13781,
2022 WL 17069492, and the Defendants’ motion to dismiss Smith’s Eighth
Amendment claim in Count Two is thus due to be denied.6
2. The Fourteenth Amendment Claim
In Count One, Smith alleges that the Defendants have acted in an “arbitrary
and capricious” manner in violation of his equal protection rights by seeking to
execute him by nitrogen hypoxia even though “[o]ther condemned people in
6
Concluding Smith has stated a plausible Eighth Amendment claim does not mean his request for
a preliminary injunction is due to be granted because his request for a preliminary injunction is
subject to an altogether different standard.
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Alabama who elected to be executed by nitrogen hypoxia five years ago have
exhausted their appeals.” 7 (Doc. 31 at 29.) Smith also alleges “that attempting to
execute [him] by nitrogen hypoxia before he has exhausted his pending appeals
would violate his right to equal protection under the laws under the Fourteenth
Amendment.” (Id. at 34.)
Smith argues that he has stated a plausible equal protection claim because (1)
he is similarly situated to all other condemned inmates who are subject to execution
by nitrogen hypoxia; (2) he has an appeal pending with the Alabama Supreme Court;
(3) the State of Alabama has a custom to wait to seek an execution date until after
the inmate has exhausted his conventional appeals: direct appeal, state postconviction, and federal habeas; (4) there are other condemned inmates in Alabama
whose appeals have been exhausted and who elected to be executed by nitrogen
hypoxia in 2018 and are still awaiting execution; (5) the ADOC has given at least
one condemned inmate who it intends to execute by nitrogen hypoxia a grace period
for the inmate and his legal counsel to review the Protocol before the Attorney
General seeks an execution date; (6) Smith was not given a similar grace period; and
(7) the Defendants chose Smith to avoid discovery into their “failed lethal injection
procedures” in his previous lawsuit before this court.
The Defendants argue that dismissal is appropriate because state law does not
assign either of the named defendants the responsibility of seeking an order to carry
out Smith’s execution, let alone any death sentence. The Defendants also argue that
they did not violate any custom of their own; because any custom involving who is
selected next for execution is that of the Attorney General, who is not a party in this
litigation. Additionally, Defendants contend Smith’s pending Rule 32 litigation is
meritless and he has failed to adequately plead comparators. Finally, Defendants
7
Smith voluntarily withdrew his due process claim. (See, e.g., Doc. 44 at 14.)
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argue that dismissal is required on estoppel and res judicata grounds, primarily
pointing to the fact that Smith voiced no concern or objection to the order of his
selection as next in line for execution in his previous litigation.
It is not necessary to address whether Smith’s second Rule 32 petition is
meritless, barred by estoppel, or by any of the Defendants’ other grounds because
Smith’s claim fails for lack of standing. Article III of the Constitution limits the
subject matter jurisdiction of federal courts to “cases and controversies.” U.S. Const.
art. III, § 2. “To have a case or controversy, a [plaintiff] must establish that he has
standing, which requires proof of three elements.” Jacobson v. Fla. Sec’y of State,
974 F.3d 1236, 1245 (11th Cir. 2020) (quoting United States v. Amodeo, 916 F.3d
967, 971 (11th Cir. 2019) (internal quotation marks omitted). To show standing, a
plaintiff must prove (1) an injury in fact that (2) is fairly traceable to the defendant’s
actions and is (3) likely to be redressed by a favorable decision. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). “[F]ederal courts are under an independent
obligation to examine their own jurisdiction, and standing ‘is perhaps the most
important of the jurisdictional doctrines.’” United States v. Hays, 515 U.S. 737
(1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230–31 (1990) (alterations
adopted). “[E]ach element of standing ‘must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the litigation.’” Bischoff
v. Osceola Cnty., Fla., 222 F.3d 874, 878 (11th Cir. 2000) (quoting Lujan, 504 U.S.
at 561). “Therefore, when standing becomes an issue on a motion to dismiss, general
factual allegations of injury resulting from the defendant’s conduct may be sufficient
to show standing.” Id.
To have standing, a plaintiff’s injury must be “fairly traceable to the
challenged action of the defendant, and not the result of the independent action of
some third party not before the court.” Lujan, 504 U.S. at 560 (alterations adopted).
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Smith contends that he is injured because he has been selected for execution before
his second state postconviction appeal has been exhausted and before the executions
of other inmates who have selected nitrogen hypoxia long before he selected it. So,
for Smith to have standing, his selection for execution over other condemned
inmates and during the pendency of other litigation must be traceable to the actions
of Defendants Hamm and Raybon in their capacities as the Commissioner of the
ADOC and the Warden of Holman Prison, respectively. Smith’s problem is that
Alabama law tasks the Attorney General with seeking and moving for an execution
date with the Alabama Supreme Court. See Ala. R. App. P. 8(d)(1); Ala. Code § 3615-1(2) (noting the Attorney General of Alabama “shall attend, on the part of the
state, to all criminal cases pending in the Supreme Court”); State of Alabama’s
Motion to Set an Execution Date, Ex parte Kenneth Eugene Smith, No. 1000976
(Ala. Aug. 25, 2023).8 Then, the Alabama Supreme Court decides whether this is
an “appropriate time” to execute a condemned inmate and, if so, authorizes the
execution. Finally, the Governor sets an execution date. The Commissioner of the
ADOC and the Warden at Holman play no role in selecting which condemned inmate
comes next in carrying out a death sentence. In fact, Alabama law merely requires
the Defendants to carry out an execution that has been authorized by the Alabama
Supreme Court and set by the Governor. Ala. Code § 15-18-82(b), (c) (“It shall be
8
The court takes judicial notice of the Attorney General’s motion to set Smith’s execution date in
the Alabama Supreme Court pursuant to Fed. R. Evid. 201(b). This judicial act is not in dispute.
The Eleventh Circuit has explained that “[j]udicial notice of court records is ordinarily confined
to determining what happened in the course of a proceeding—when a plaintiff filed a complaint,
what claims were argued and adjudicated on, and so on.” Kerruish v. Essex Holdings, Inc., 777 F.
App’x 285, 293 (11th Cir. 2019). Moreover, "the Eleventh Circuit has distinguished between
taking judicial notice of the fact that court records or court rulings exist versus taking judicial
notice of the truth of the matter stated within those court records or court rulings.” Auto Owners
Ins. Co. v. Morris, 191 F. Supp. 3d 1302, 1304 (N.D. Ala. 2016) (emphasis in original). Here, the
court references this document to show that the Attorney General, as the State of Alabama’s
representative to the Alabama Supreme Court, is the official who sought Smith’s execution before
others.
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the duty of the Department of Corrections of this state to provide the necessary
facilities, instruments, and accommodations to carry out the execution. The Warden
of the William C. Holman unit of the prison system . . . shall be the executioner.”).
And nowhere in Smith’s SAC does he state how either Defendant played a role in
his selection over other inmates for execution.
Despite his allegation that the ADOC maintains a “custom” of waiting to
move for an execution until a condemned inmate has exhausted his conventional
appeals, Smith mischaracterizes whose custom it actually is. Smith cites to the
custom mentioned in Woods v. Comm’r, Ala. Dep’t of Corrs., 951 F.3d 1288, 1292
(11th Cir. 2020), to support his equal protection claim. However, it is not the ADOC
as an institution, nor the Defendants in their official capacities, that maintain this
custom; instead, it is the Attorney General’s office. Since the Attorney General is
the state official who “attends to the criminal cases pending in the Supreme Court,”
a violation of this custom is fairly traceable back to the Attorney General, not the
Commissioner of the ADOC or the Warden of Holman. Ala. Code § 36-15-1(b); see
Lujan, 504 U.S. at 560. Therefore, Smith has failed to show an injury that is fairly
traceable to any defendant in this case. Lujan, 504 U.S. at 560.
Smith’s SAC is also devoid of any allegation that one or both of these two
Defendants acted outside of their statutory authority or improperly influenced the
Attorney General to move for Smith’s execution. This court, absent allegations of
such conduct, will assume that a state official’s authority lies where the “applicable
law purports to put it.” City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988).
Since Smith is unable to show that his injury is fairly traceable to the Defendants, he
lacks the required standing to bring his equal protection claim against them. See
Jacobson, 974 F.3d at 1245 (“To have a case or controversy, a [plaintiff] must
establish that he has standing, which requires proof of [all] three elements.”).
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The court is aware of prior capital punishment litigation in Alabama federal
courts involving equal protection claims where the Attorney General was a
defendant, yet the choice to include the Attorney General was not made here even
though Smith sued the Attorney General in his previous litigation. See generally,
Woods v. Dunn, No. 2:20-cv-58-ECM, 2020 WL 1015763 (M.D. Ala. Mar. 2, 2020);
Smith, No. 2:22-cv-497-RAH, 2023 WL 4353143.
Standing aside, Smith’s equal protection claim also fails on the merits for a
different but related reason: the lack of a causal connection.9 Without a causal
connection between a defendant’s actions and a plaintiff’s alleged constitutional
violation, a § 1983 claim fails. See Spencer v. Benison, 5 F.4th 1222, 1232 (11th
Cir. 2021) (quoting Troupe v. Sarasota Cnty., 419 F.3d 1160, 1165 (11th Cir. 2005)).
Smith’s equal protection claim is premised upon an alleged custom by the ADOC in
how it determines whose execution date will be set next. As Smith defines the claim
in the SAC, his claim focuses on whether or not the Defendants violated their
“custom [to] wait[] to move for an inmate’s execution until he has exhausted his
conventional appeals: direct appeal, state postconviction, and federal habeas.” (Doc.
31 at 2–3, 29 (quoting Woods, 951 F.3d at 1292)). But again, the Defendants are not
involved in the selection of condemned inmates for execution, moving for an
execution date, or authorizing an execution. Their duties are statutory and are merely
to carry out an execution once authorized by the Alabama Supreme Court and set by
9
Defendants also argue that Smith’s claim is due to be dismissed under the Rooker-Feldman
doctrine, arguing that success on this claim would effectively nullify the Alabama Supreme
Court’s authorization of Smith’s execution. The court declines to apply the narrow RookerFeldman doctrine because Smith does not identify or complain of an injury caused by the Alabama
Supreme Court but rather complains about the conduct of the Defendants in “selecting” him for
execution despite having an appeal outstanding. See Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005) (holding that the Rooker-Feldman doctrine is limited and confined
to “cases brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district court review and
rejection of those judgments”).
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the Governor. Compare Ala. Code § 15-18-82 with Ala. Code § 36-15-1(2). There
is no discretion in the Defendants’ responsibilities or duties here. And nowhere in
the SAC or in his responsive briefing does Smith allege that these two Defendants—
Hamm or Raybon—were involved in the process of selecting Smith, or any other
condemned inmate, for execution, or were involved in moving the Alabama
Supreme Court to authorize Smith’s execution. Alabama law provides no ability for
either of these Defendants to involve themselves in this process. As such, there is
simply no causal connection between the Defendants’ actions, Smith’s alleged equal
protection violations, and Smith’s injury, other than the Defendants’ mandatory and
statutory obligations to carry out the death sentence.
In short, Count One must be dismissed for several reasons. Despite Smith’s
allegations, Defendants Hamm and Raybon do not have the statutory power to select,
move for, or authorize his execution—those actions lie with the Attorney General
and the Alabama Supreme Court. As a result, Count One suffers from traceability
and causation infirmities that require its dismissal.
3. The First Amendment Free Speech Claim
In Count Three, Smith alleges that the Protocol violates his First Amendment
rights because it “will interfere with [his] right to make an audible statement and to
pray audibly” and “[a]ny statement or prayer . . . may risk consequences associated
with dislodging the mask and/or building the level of carbon dioxide under the
mask.” (Doc. 31 at 31.) Thus, two parts comprise Smith’s claim: (1) a free exercise
claim and (2) a free speech claim. Because RLUIPA claims “embed[] a heightened
standard for government restrictions on the free exercise of religion” than do First
Amendment free exercise claims, the court reserves its analysis of Smith’s free
exercise claims for its discussion of Smith’s RLUIPA claim. Dorman v. Aronofsky,
36 F.4th 1306, 1313 (11th Cir. 2022). And because, as discussed below, Smith pled
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facts sufficient to state a claim that the Protocol violates his First Amendment right
to free speech, the Defendants’ motion to dismiss that claim is due to be denied.10
In the context of the execution chamber, it is not obvious or recognized that
Smith has a First Amendment “right to make an audible statement” that the SAC
alleges he has. (Doc. 31 at 31.) See In re Ohio Execution Protocol Litig., No. 2:11CV-1016, 2017 WL 2964901, at *26 (S.D. Ohio 2017) (“While last statements have
traditionally been a part of executions in the Anglo-American tradition, nothing in
the Constitution compels honoring that tradition. In the contemporary Ohio context,
the means of communication between the inmate in the death chamber and witnesses
in the witness room is by way of a microphone provided by the State. Even if the
Constitution protects—on free speech or free exercise grounds—the right of an
inmate to speak, it does not compel the State to furnish him with a means to ensure
that speech is heard by certain people.”). Although “federal courts must take
cognizance of the valid constitutional claims of prison inmates,” Turner v. Safley,
482 U.S. 78, 84 (1987), “a lesser standard of scrutiny is appropriate in determining
the constitutionality of [] prison rules” than in determining the validity of laws
impacting constitutional rights outside the prison context, id. at 81. Specifically, a
prison regulation or protocol impacting prisoners’ constitutional rights is valid if
“the regulation is . . . reasonably related to legitimate penological interests.” Id. at
89 (alterations in original) (citations omitted). And there are four factors used to
10
In the SAC, Smith also states that his single-walk status “burdens the exercise of his religion,”
although he does not state exactly how his exercise of religion is burdened. (Doc. 31 at 26.)
Moreover, Smith did not include a single-walk status allegation in his First Amendment claim
(Count Three), RLUIPA claim (Count Four), or ARFA claim (Count Five), and he did not respond
to the Defendants’ arguments about Smith’s single-walk status in their motion to dismiss. (Doc.
39 at 59, 62, 64–65, 68.) Accordingly, the court considers Smith’s allegations that his single-walk
status interferes with his religious exercise abandoned.
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determine whether a regulation is reasonably related to legitimate penological
interests:
(1) whether there is a “valid, rational connection” between the
regulation and a legitimate governmental interest put forward to justify
it; (2) whether there are alternative means of exercising the asserted
constitutional right that remain open to the inmates; (3) whether and the
extent to which accommodation of the asserted right will have an
impact on prison staff, inmates, and the allocation of prison resources
generally; and (4) whether the regulation represents an “exaggerated
response” to prison concerns.
Hakim v. Hicks, 223 F.3d 1244, 1247–48 (11th Cir. 2000). Thus, to state a First
Amendment claim, Smith must state facts alleging that the prison regulation is
unreasonable, and facts supporting the Hakim factors would help him do so.
Taking everything Smith alleges in the SAC as true, the court concludes the
SAC sufficiently alleges that the Protocol’s burden on his speech is not reasonably
related to a legitimate penological interest. Smith offers an alternative that would
resolve his free speech concerns (allowing him to speak without a mask on) (Doc.
31 at 27), and he states that there is no “compelling governmental interest that
justifies” masking Smith for his final statement, (Doc. 31 at 6). And crucially,
“evaluating whether there is a legitimate penological interest that permits a
restriction on the constitutional rights of incarcerated individuals is not normally an
exercise that can be undertaken in the context of a motion to dismiss brought under
Rule 12(b)(6).” Mayberry v. Humphreys Cnty., No. 3:11-0855, 2012 WL 4506027,
at *9 (M.D. Tenn. Sept. 4, 2012) (citations omitted), report and recommendation
adopted, No. CIV. 3:11-0855, 2012 WL 4490809 (M.D. Tenn. Sept. 28, 2012).
Smith’s response to Defendants’ assertion that he has not stated a First Amendment
free speech claim is that he needs further factual development so that he can address
the Hakim factors. (Doc. 44 at 46.) Moreover, the Defendants fail to identify
binding law on this court that states that any of their asserted interests (see Doc. 39
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at 50–51) are, as a matter of law, reasonably related to the need to mask Smith at the
time of his final words. And so, “[w]hile Defendants may develop evidence
consistent with Turner that [they] could rely on at the summary judgment stage, there
is no such evidence before the Court at this juncture.” Garber v. Conway, No. 1:16CV-137-AT, 2016 WL 11545540, at *2 n.2 (N.D. Ga. Dec. 6, 2016). And even if
there was, the court cannot consider it for purposes of the Defendants’ motion to
dismiss.
Although it is entirely possible that the Protocol’s regulation of Smith’s
speech rights is reasonable, that fact-centered determination is not before the court
at this stage of the litigation. Instead, the court must determine whether Smith has
alleged enough to state a plausible claim that the Protocol imposes an unreasonable
restriction on his First Amendment free speech rights. Because the court concludes
he did, although barely, the Defendants’ motion to dismiss Smith’s free speech claim
in Count Three will be denied.
4. The RLUIPA Claim
Count Four alleges that the Protocol violates RLUIPA because it (1)
“substantially burdens Mr. Smith’s religious exercise to pray audibly” during his last
statement and because it (2) “substantially burdens Mr. Smith’s religious exercise to
pray audibly by forcing Mr. Smith to choose between abstaining from his religious
practice of audible prayer at the end of his life or face the dangerous consequences
of dislodging the mask while praying.” (Doc. 31 at 32.) Because Smith has
sufficiently pled that the Protocol substantially burdens an exercise of his sincere
religious beliefs, the Defendants’ dismissal motion as to Smith’s RLUIPA claim will
be denied.
RLUIPA states that
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . even if
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the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that
person—(1) is in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc–1(a). The Supreme Court has summarized the RLUIPA test as
follows:
A plaintiff bears the initial burden of proving that a prison policy
implicates his religious exercise. Although RLUIPA protects any
exercise of religion, whether or not compelled by, or central to, a system
of religious belief, a prisoner’s requested accommodation must be
sincerely based on a religious belief and not some other motivation.
The burden on the prisoner’s religious exercise must also be substantial.
Once a plaintiff makes such a showing, the burden flips and the
government must demonstrate that the imposition of the burden on that
person is the least restrictive means of furthering a compelling
governmental interest.
Ramirez v. Collier, 595 U.S. 411, 425 (2022) (cleaned up). Thus, to survive a motion
to dismiss a claim that a prison policy violates RLUIPA, Smith must plead that
audible prayer is an exercise of his sincere religious beliefs and that the Protocol
substantially burdens his ability to audibly pray. See, e.g., Holt v. Hobbs, 574 U.S.
352, 360–61 (2015) (stating that “of course, a prisoner’s request for an
accommodation must be sincerely based on a religious belief and not some other
motivation”); Williams v. Wilkinson, 645 F. App’x 692, 699 (10th Cir. 2016) (“To
survive a motion to dismiss . . . [the prisoner] was required to allege only that his
request to eat a kosher diet was motivated by a sincerely held religious belief and
that his exercise of that belief has been substantially burdened by the government.”).
As to religious exercise, the SAC alleges that Smith is a “man of faith.” (Doc.
31 at 11.) Audible prayer is an exercise of that religious faith. The Supreme Court
has found that “traditional forms of religious exercise” satisfy the religious exercise
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prong of RLUIPA, and that “there is a rich history of clerical prayer at the time of a
prisoner’s execution, dating back well before the founding of our Nation[.]”
Ramirez, 595 U.S. at 425, 427. Moreover, the court struggles to conceive of a
practice more central to religious exercise than audible prayer. Accordingly, the
court finds that Smith has pled sufficient facts to state a plausible claim under the
first prong of the RLUIPA analysis.
And as to RLUIPA’s substantial burden analysis, the
inquiry . . . asks whether the government has substantially burdened
religious exercise . . . not whether the RLUIPA claimant is able to
engage in other form of religious exercise. We have held that a
substantial burden is more than an inconvenience and is akin to
significant pressure which directly coerces the religious adherent to
conform his or her behavior accordingly. We said in Midrash Sephardi
that a substantial burden can tend to force adherents to forego religious
precepts or mandate religious conduct.
Dorman, 36 F.4th at 1314 (cleaned up). Smith alleges that being masked “may
prevent [his] prayers from being audible,” and that during his execution he will face
the untenable choice of either praying audibly or risking the consequences of
dislodging the mask. (Doc. 31 at 32.) Taking these allegations as true, Smith has
stated a plausible claim that the Protocol substantially burdens his religious exercise
under RLUIPA. Accordingly, because Smith has plausibly pled that the Protocol
imposes a substantial burden on his religious exercise, the Defendants’ motion to
dismiss Smith’s RLUIPA claim (Count Four) will be denied.
5. The First Amendment Free Exercise Claim
As previously stated, “[i]f a prison’s regulation passes muster under RLUIPA
. . . it will perforce satisfy the requirements of the First Amendment, since RLUIPA
offers greater protection to religious exercise than the First Amendment offers.”
Smith v. Allen, 502 F.3d 1255, 1264 n.5 (11th Cir. 2007). And “[i]f a claim fails
under the RLUIPA—which embeds a heightened standard for government
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restrictions of the free exercise of religion—it necessarily fails under the First
Amendment.” Dorman, 36 F.4th at 1313 (citing Allen, 502 F.3d at 1264 n.5).
Because Smith has plausibly pled a RLUIPA claim, Smith has also necessarily pled
a plausible First Amendment free exercise claim, and therefore the Defendants’
motion to dismiss Smith’s free exercise claim in Count Three will be denied.
6. The ARFA Claim
Section V of the ARFA states:
(a) Government shall not burden a person’s freedom of religion even if
the burden results from a rule of general applicability, except as
provided in subsection (b).
(b) Government may burden a person’s freedom of religion only if it
demonstrates that application of the burden to the person:
(1) Is in furtherance of a compelling governmental interest; and
(2) Is the least restrictive means of furthering that compelling
governmental interest.
Ala. Const. amend. 622 § V.
“Thus, ARFA, like RLUIPA, requires the
government’s action to satisfy strict scrutiny to survive review.” Thai Meditation
Ass’n of Ala., Inc. v. City of Mobile, 83 F.4th 922, 929 (11th Cir. 2023) (TMAA II).
But there is an important difference between RLUIPA and ARFA: rather than
requiring a “substantial” burden on religious exercise as RLUIPA does, any burden
on “freedom of religion” triggers ARFA. See Thai Meditation Ass’n of Ala., Inc. v.
City of Mobile, 980 F.3d 821, 840 (11th Cir. 2021) (TMAA I) (“Under Alabama law,
our job (giving it our best Erie guess) is to interpret [ARFA’s] language to mean
exactly what it says. And what ARFA says is that any burden—even an incidental
or insubstantial one—suffices to trigger strict scrutiny.” (internal quotations and
citations omitted)).
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Were the court to have found that Smith’s RLUIPA claim failed to state a
claim because Smith did not plead a “substantial burden,” the critical difference
between RLUIPA and ARFA would be relevant here: while Smith might not have
pled a substantial burden, he could have still survived the Defendants’ motion to
dismiss his ARFA claim having merely pled a burden. See TMAA I, 980 F.3d at 839
(“ARFA repeatedly states that, except in extraordinary circumstances, the
government may not ‘burden’ religious exercise. In its ‘findings’ section, ARFA
provides that ‘[g]overnments should not burden religious exercise without
compelling justification.’” (emphasis in original) (quoting Ala. Const. amend. 622)).
But because Smith has successfully pled that the Protocol substantially burdens his
sincere religious beliefs, the critical difference between RLUIPA and ARFA does
not matter here. As such, Smith has sufficiently pled that the Protocol merely
burdens Smith’s religious exercise, and therefore the Defendants’ motion to dismiss
Smith’s ARFA claim will be denied.
B. Smith’s Preliminary Injunction Motion
Smith’s motion for preliminary injunction proceeds only as to those claims
that survive the Defendants’ motion to dismiss and only on those claims for which
he has sought a preliminary injunction against his execution under the Protocol—his
Eighth Amendment, RLUIPA, and ARFA claims.11
“When ruling on a preliminary injunction, ‘all of the well-pleaded allegations
[in a movant’s] complaint and uncontroverted affidavits filed in support of the
motion for a preliminary injunction are taken as true.’” Alabama v. U.S. Dep’t of
Com., 546 F. Supp. 3d 1057, 1063 (M.D. Ala. 2021) (quoting Elrod v. Burns, 427
U.S. 347, 350 n.1 (1976)). “At the preliminary injunction stage, a district court may
11
Although his First Amendment claims (Count Three) survived the Defendants’ motion to
dismiss, Smith did not seek a preliminary injunction based on them. Accordingly, the court will
not consider Smith’s First Amendment claims in his request for a preliminary injunction.
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rely on affidavits and hearsay materials which would not be admissible evidence for
a permanent injunction, if the evidence is ‘appropriate given the character and
objectives of the injunctive proceeding.’” Levi Strauss & Co. v. Sunrise Int’l Trading
Inc., 51 F.3d 982, 985 (11th Cir. 1995) (quoting Asseo v. Pan Am. Grain Co., 805
F.2d 23, 26 (1st Cir. 1986)).
And crucially, “where facts are bitterly contested and credibility
determinations must be made to decide whether injunctive relief should issue, an
evidentiary hearing must be held.” McDonald's Corp. v. Robertson, 147 F.3d 1301,
1312 (11th Cir. 1998) (emphasis added). At an evidentiary hearing, the district court
sits as both factfinder and credibility assessor. Four Seasons Hotels & Resorts, B.V.
v. Consorcio Barr, S.A., 320 F.3d 1205, 1211 (11th Cir. 2003). Highly disputed
factual issues may cast doubt on the plaintiff's substantial likelihood of success.
Ultimately, “[t]he grant or denial of a preliminary injunction is a decision within the
sound discretion of the district court.” United States v. Lambert, 695 F.2d 536, 539
(11th Cir. 1983).
“A preliminary injunction is an extraordinary remedy never awarded as of
right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Smith is
entitled to a preliminary injunction if he demonstrates (1) a substantial likelihood of
success on the merits; (2) a likelihood of suffering irreparable injury without the
injunction; (3) that the threatened injury to him outweighs the harm the injunction
would cause the State; and (4) that the injunction would not be adverse to the public
interest. Barber, 73 F.4th at 1317. A preliminary injunction is “‘not to be granted
unless the movant clearly established the “burden of persuasion”’ for each prong of
the analysis.” Am.’s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1329 (11th Cir.
2014) (citation omitted). Smith, as the movant, must satisfy his burden on all four
elements “by a clear showing.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(per curiam).
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Substantial likelihood of success on the merits is “the most critical” factor in
the preliminary injunction analysis, and because the court concludes that Smith has
failed to meet his burden on this factor, “‘it is unnecessary’ for the court to determine
whether [Smith] ‘satisfied the second, third, or fourth factors.’” Barber, 73 F.4th at
1317 (quoting Grayson v. Warden, Comm’r, Ala., 869 F.3d 1204, 1238 n.89 (11th
Cir. 2017)). Although Smith has plausibly alleged claims such that they survive
dismissal at the motion to dismiss stage, he has failed to show a substantial likelihood
of success on their merits. Accordingly, Smith’s motion for preliminary injunction
will be denied.
1. The Eighth Amendment Claim
Execution by nitrogen hypoxia is unusual because it is novel. But Smith has
the burden to “establish a likelihood” that the Protocol is unconstitutionally cruel
because it will inflict an “unacceptable risk of severe pain” that is “substantial when
compared to known and available alternatives.” Glossip, 576 U.S. at 878. The
Eleventh Circuit has applied the Supreme Court’s Eighth Amendment method-ofexecution framework and held that a condemned inmate must show that the
challenged method of execution creates “a substantial risk of serious harm, an
objectively intolerable risk of harm that prevents prison officials from pleading that
they were subjectively blameless for purposes of the Eighth Amendment,” and
additionally must point to “an alternative that is feasible, readily implemented, and
in fact significantly reduce[s] a substantial risk of severe pain.” Price, 920 F.3d at
1326 (quoting Glossip, 576 U.S. at 877). In other words, Smith must again satisfy
the Baze-Glossip test, as interpreted in Price, but now he must bolster his allegations,
which are highly contested by the Defendants, with evidence to meet his heavy
burden.
The parties do not dispute that nitrogen hypoxia can and ultimately will result
in death. Smith contends the Protocol lacks the “proper controls” to alleviate the
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risk of “torture or lingering death,” (Doc. 19 at 24, 28 (quoting Baze, 553 U.S. at
49–50)), or the “‘superadd[ing]’ of ‘terror, pain, or disgrace,’” (id. at 24 (quoting
Bucklew, 139 S. Ct. at 1124).) In other words, he argues that there are deficiencies
with the Protocol that could unnecessarily prolong his death or result in
complications short of death, such as a persistent vegetative state or experiencing a
stroke, the sensation of suffocation, or choking. In his SAC, Smith originally
enumerated six purported deficiencies in the Protocol that will subject him to a
substantial risk of serious harm. However, since that time, Smith has been given a
complete, unredacted copy of the Protocol and has engaged in limited expedited
discovery, both of which appear to have allayed some of those concerns. As such,
at the evidentiary hearing and in his briefing, Smith has reduced those six initial
deficiencies down to three: (1) use of an off-the-shelf mask, as opposed to some
other device such as a hood, subjects Smith “to a substantial risk of oxygen
infiltration”; (2) the specific mask the ADOC intends to use for Smith’s execution
“will permit the entertainment of room air” resulting in a substantial risk of
superadded pain short of death; (3) the Protocol itself, and Smith’s individual
circumstances—now suffering from PTSD and depression as a result of the failed
lethal injection execution attempt and his looming execution—subjects him to a
“substantial risk of asphyxiation on his own vomit[.]” (Doc. 65 at 25–44.) Smith’s
briefing and arguments at the hearing focus his superadded pain argument on his
assertion that the Protocol may result in him vomiting while the mask is on which,
according to Smith, could cause him to choke and/or could dislodge the seal of the
mask, thereby allowing oxygen and outside air into the mask after the nitrogen
begins to flow, which risk pain and physical complications short of death.
To reduce or alleviate the purported substantial risk of harm, Smith proposes
two allegedly feasible and readily implemented alternative methods: (1) an amended
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nitrogen hypoxia protocol that includes ten proposed changes,12 or (2) death by firing
squad using Utah’s execution protocol. (Doc. 31 at 27–28; Doc. 19 at 28–29.) In
support of the firing squad, Smith submitted Utah’s execution protocol (see Doc. 198) and the declaration of Dr. Jonathan I. Groner, M.D., stating:
The Utah firing squad protocol involves 4 skilled individuals
firing 30 caliber bullets directly at the inmate’s heart. These bullets will
tear open the heart causing immediate loss of pumping function to the
heart. The loss of pumping function of the heart will cause the blood
flow to the brain to cease immediately. Loss of consciousness occurs a
few seconds after blood flow to the brain ceases. The loss of
consciousness that occurs when blood flow to the brain ceases is
12
Smith did not draft a proposed amended nitrogen hypoxia protocol. Instead, he submitted a
bullet-point list of ten proposed amendments:
•
•
•
•
•
•
•
•
•
•
Measure each condemned person subject to execution by nitrogen hypoxia for
a custom fit mask to reduce the risk that oxygen leaks under the mask seal or,
alternatively, use a closed space or a hood.
Provide a condemned person an opportunity to speak and to audibly pray
without being masked.
Disclose the training that the execution team members will receive in placing
and adjusting the mask over the condemned inmate’s face, their level of
experience with the masks being used, and the metrics that will be used to
ensure the mask is “properly placed” and passes the “final inspection.”
Add a mechanism to remove carbon dioxide that the condemned inmate exhales
from under the mask.
Disclose the source of the nitrogen to be used, and information about its
transportation and storage to avoid contamination.
Require testing of the nitrogen gas before use to ensure purity of the nitrogen
gas.
Add procedures to monitor the pulse oximeter throughout the process.
Add procedures to halt the execution if the condemned person vomits into the
mask.
Add procedures for attempting to execute condemned inmates who have
survived a previous attempt and are experiencing PTSD as a result.
Employ a third-party licensed medical provider who (1) will be permitted to
observe the execution process from the time the condemned inmate is taken into
the execution chamber until completed, and (2) has the authority to call off or
postpone the execution if, in his or her judgment, the condemned inmate is at
risk of serious injury short of death.
(Doc. 31 at 27–28 ¶102; Doc. 19 at 28–29.)
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complete, meaning the individual cannot experience pain. The inmate
will remain comatose and be clinically dead (absence of heart beath,
breathing, or any reflexes) within a few minutes.
(Doc. 19-8.)
Smith submitted the declarations of Dr. Yong and Dr. Nitschke, both of whom
opined that improper sealing of the face mask, movement of Smith’s head or mouth
during the execution process, improper gas pressure and flow, vomiting, and
respiratory complications specific to an individual person could each complicate the
execution process and may result in prolonged time to death or medical
complications short of death—like the sensation of suffocation, panic, stroke, or a
persistent vegetative state. Both Dr. Yong and Dr. Nitschke testified at the hearing
on December 20, 2023. No evidence was presented showing either Dr. Yong or Dr.
Nitschke had read the unredacted Protocol in its entirety, but both testified they had
reviewed the redacted Protocol. Dr. Yong testified from his viewpoint as a medical
doctor, whose goal is to minimize risks in medical settings to reduce complications
and to preserve life and not to reduce complications in a penal setting for the purpose
of quickly ending life, as is the case here. From Dr. Nitschke’s perspective with a
background in assisted suicide, although he stated those seeking assisted suicide now
tend to use a hood system instead of a mask, he did not, nor could he, identify to a
scientific certainty or likelihood that the ADOC’s choice of this particular mask
when combined with Smith’s physical characteristics or with speaking or praying
will in fact cause complications from air leakage or a dislodged seal, and he testified
at the hearing that nausea is possible even in a hood system. What both doctors
acknowledged, although from different viewpoints, was that nitrogen hypoxia would
ultimately cause death.
As to the possibility of vomiting inside the mask during the execution,
Stewart-Riley, the Regional Director of the ADOC, testified that the execution team
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would remove and clean the mask and check and clean Smith’s airway if Smith
vomited before nitrogen was introduced into the mask. She also testified that the
team would not halt the execution if Smith vomited after nitrogen was introduced
into the mask. Both Dr. Yong and Dr. Nitschke stated, in their professional opinions,
the Defendants’ proposed procedure to handle vomit could lead to death by
asphyxiation instead of hypoxia. Notably, neither expert stated, or could state to a
scientific or medical certainty, the time to unconsciousness after nitrogen is
introduced into the mask, the time to death, or what percentage of oxygen or other
breathing air could cause pain if the mask dislodged.
Although Dr. Yong and Dr. Nitschke were largely silent on the possibility that
Smith himself could vomit during the execution, Smith introduced the testimony of
Dr. Porterfield. Dr. Porterfield testified Smith suffers from nausea resulting from
PTSD and depression. She also opined that the Protocol does not account for
Smith’s individual mental circumstances and therefore may cause him to panic or
experience “fight or flight dissociation” during the execution. (Doc. 19-3 at 8.)
Dr. Porterfield acknowledged under questioning by defense counsel that
Smith told her that he did not experience nausea during the previous execution
attempt and that he did not report to her vomiting from PTSD-induced nausea since
that time. No one, including Dr. Porterfield, could state with any certainty whether
Smith will feel nauseous during the execution. And no one could state with any
certainty the likelihood Smith will vomit during the execution, with or without the
mask on, before or during the administration of nitrogen; when, where, or how much
he might vomit during the execution, or any other condition or risk. Nor did any
witness provide a foundation upon which any such likelihood of vomiting would be
based, such as the time of Smith’s last meal, whether Smith would eat a last meal,
and if so, the volume of stomach contents that would exist at the time of execution.
Instead, witnesses merely opined to the theoretical possibility the Protocol may lead
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a condemned inmate to vomit, and—by extrapolation—the complications from an
episode of vomiting if the mask happened to become dislodged during the execution
or was removed altogether.
In response, the Defendants argue that each of the purported deficiencies
Smith has identified in the Protocol, although posing some theoretical risks, do not
rise to the level of substantial risk of causing severe pain when compared to Smith’s
proposed alternatives. And as to the alternatives, the Defendants argue that Smith’s
list of proposed amendments to the Protocol fails Nance’s “veritable blueprint”
standard, see Nance II, 597 U.S. at 169 (stating that a condemned person proposing
an alternative method of execution must provide “a veritable blueprint for carrying
the death sentence out” and “persuade[] a court that the State could readily use his
proposal to execute him”), but offer little argument against Utah’s method of
execution by firing squad except to attack the brevity of Dr. Groner’s declaration.
In opposition to Smith’s preliminary injunction request, the Defendants
submitted the declaration of Stewart-Riley. (Doc. 39-13.) Stewart-Riley stated that
she is familiar with the mask that is to be used and that the mask “is designed to fit
and does fit a broad range of wearers.” (Id. at 2.) She said the mask will be secured
to Smith using a five-point harness or strapping system “that allows for a secure fit,
even in instances where the wearer needs to be able to communicate with others”
when masked. (Id. at 2–3.) Based on Stewart-Riley’s observations, “the strapping
system creates a tight seal” and Smith will be able to speak audibly without
dislodging the mask. (Id. at 3.) Stewart-Riley also stated that she has worn the mask
herself and she “was able to breathe comfortably and to make [her]self heard by
those around [her], including persons in the witness rooms[.]” (Id.) Finally, she said
she and others who wore the mask did not report problems breathing or
complications arising from the entrapment of carbon dioxide because the “mask is
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designed to be used with supplied air and features exhalation valves for venting
carbon dioxide.” (Id.)
As to the mask’s design and fit, the court inspected it, including the harness
system, the contours and size of the face shield, and the rubber seal. Given its design,
the court finds it highly unlikely that the mask would dislodge or that the seal would
be broken and outside air introduced if it is tightly secured on the condemned
inmate’s head in a positive pressure environment, even under the scenarios Smith
alleges could break the seal—like audibly speaking or moving his mouth or head.
The Defendants also submitted the declaration of Dr. Antognini. In his
declaration, Dr. Antognini opined the time to unconsciousness when nitrogen is
introduced into a virtually air-tight mask is 35 to 40 seconds, and the time to death
is 10 to 15 minutes. He arrived at his conclusion using case reports studying the
lethality of inert gases during industrial accidents and assisted suicides.
Dr.
Antognini disagreed with Dr. Yong and Dr. Nitschke: it is his “expert medical and
scientific opinion that the use of the mask, as proposed, and the delivery of nitrogen
to the mask, would result in rapid unconsciousness, followed by cardiac arrest and
death[,]” and that the condemned inmate would experience no pain as a result of the
nitrogen hypoxia execution process. (Doc. 62-60 at 16–17.) But the court recalls
defense counsel’s cross-examination of Dr. Yong and, specifically, when Dr. Yong
testified that, because so little data exists on the use of inert gases to cause death in
humans, he could not give an opinion with any certainty concerning the time to
unconsciousness or time to death based merely on extrapolations sourced from
industrial accidents or assisted suicides.
What the testimony from the experts shows, if anything from an overall
standpoint of consistency, is that the uninterrupted introduction of pure nitrogen will
result in nitrogen hypoxia and that nitrogen hypoxia will ultimately lead to death.
On this record, there is simply not enough evidence to find with any degree of
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certainty or likelihood that execution by nitrogen hypoxia under the Protocol is
substantially likely to cause Smith superadded pain short of death or a prolonged
death. It could, in a highly theoretical sense, but only if a cascade of unlikely events
occurs.13 Or it may well be painless and quick. Execution by nitrogen hypoxia is
novel, and it will remain novel even if the Defendants employ Smith’s proposed
amendments to the Protocol.
But novel methods of execution are not new to the federal courts, and the
Supreme Court has examined them before. After all, although lethal injection is
currently the most common form of execution in the present day in this country, it
was once novel. So too were the introduction of various types of sedatives and drugs
during the evolution of many states’ lethal injection protocols over the years. For
example, in Glossip, the Supreme Court considered the constitutionality of
Oklahoma’s amended three-drug lethal injection protocol which replaced
pentobarbital with midazolam after Oklahoma was unable to source sodium
thiopental and pentobarbital. 576 U.S. at 871. Faced with a dearth of evidence
relating to the use and effects of midazolam during a lethal injection procedure in
humans, the Supreme Court affirmed the district court’s denial of a preliminary
injunction because the district court had not clearly erred when it found the
condemned petitioners failed to establish that a massive dose of midazolam during
the lethal injection procedure would entail a substantial risk of severe pain. Id. at
883–84. The fact that little or no evidence and scientific proof on the topic existed
did not relieve the condemned petitioners of their burden “of showing that the
method creates an unacceptable risk of pain.” Id. at 884.
13
For example, Smith eating a sufficiently large meal at a time sufficiently close to the execution
which, together with his anxiety and/or PTSD, results in him vomiting a sufficient volume of
stomach contents into the mask after nitrogen has been introduced that in turn clogs his airways or
impacts the performance of the mask and requires the execution team to intervene and interrupt
the flow of nitrogen.
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Again, preliminary injunctions are extraordinary remedies meant to preserve
the status quo until the merits of a case are fully and fairly adjudicated. Suntrust
Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001). They are the
exception, not the rule. Barber, 73 F.4th at 1317 (quoting Hill v. McDonough, 547
U.S. 573, 584 (2006)). So, it is Smith’s burden to show a substantial likelihood that
he will succeed on his Eighth Amendment claim before the court will enjoin his
execution to allow him to litigate his challenge, and for good reason. The status quo
here is that Smith will be executed by nitrogen hypoxia on January 25, 2024, using
the ADOC’s current Protocol.
Courts presume, based upon the history and
development of capital punishment in this country and the legislative process, that
the Defendants do not “seek[] to superadd terror, pain, or disgrace to their
executions” unless and until a condemned person can make the requisite showing
under Baze and Glossip. Bucklew, 139 S. Ct. at 1124–25 (citing Baze and Glossip).
Considering all the evidence presented and the parties’ arguments, Smith has
not met that burden. His evidence and allegations amount to speculation, at best
“scientific controvers[y,]” well short “of showing that the method creates an
unacceptable risk of pain.” Glossip, 576 U.S. at 882, 884. As in Glossip, Smith’s
own experts effectively conceded that they lacked evidence to prove Smith’s case
beyond dispute. See id. at 884. Proof of some theoretical risk does not clear Smith’s
high hurdle: “[s]imply because an execution method may result in pain, either by
accident or as an inescapable consequence of death, does not establish the sort of
‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Baze, 553
U.S. at 50. Smith has argued and provided some evidence that the Protocol could
theoretically result in some risk of pain if many other events occur, like vomiting or
the dislodging of the mask during the execution procedure but—far from providing
a feasible, readily implemented alternative nitrogen hypoxia protocol with his list of
proposed amendments to the Protocol or his cursory allegations and evidence about
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the firing squad—he has not shown the current Protocol is sure or very likely to
cause substantial risk of serious harm or superadded pain when compared to either
of his alleged alternatives, nor that either of his alternative methods would in fact
significantly reduce that risk if used instead.
Smith is not guaranteed a painless death. Bucklew, 139 S. Ct. at 1124. On
this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts
both cruel and unusual punishment rendering it constitutionally infirm under the
prevailing legal framework. Having failed to show a substantial likelihood of
success on the merits, Smith is not entitled to injunctive relief on his Eighth
Amendment claim.
2. The RLUIPA Claim
In his motion for preliminary injunction, Smith argues that the Protocol
“substantially burdens [his] religious exercise by inhibiting audible prayer at the
time of his execution.” (Doc. 19 at 30.) For the court to issue a preliminary
injunction on Smith’s RLUIPA claim, Smith must, as a threshold matter, clearly
establish a prima facie case—that is, that the Protocol substantially burdens his
sincere religious beliefs. See Hudgens, 742 F.3d at 1329; Ramirez, 595 U.S. at 425.
If Smith establishes a prima facie case, the burden then shifts to the Defendants to
demonstrate that the Protocol is the least restrictive means of furthering a compelling
government interest. See, e.g., Smith v. Comm'r, Ala. Dep't of Corr., 844 F. App'x
286, 291–93 (11th Cir. 2021).
The RLUIPA analysis for Smith’s preliminary injunction request begins with
RLUIPA’s first prong: whether Smith can clearly establish that audible prayer is an
exercise of his sincere religious beliefs. Smith’s SAC states that he is a man of faith
and that he prayed audibly during his previous attempted execution. And during the
December 20, 2023 evidentiary hearing, Smith testified to the plans that he and his
spiritual advisor have made for the day of his execution, and that those plans include
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audibly praying. Moreover, the Defendants do not appear to question this aspect of
Smith’s RLUIPA burden. Accordingly, the court finds that Smith has carried his
burden to show that audible prayer is an exercise of his sincere religious beliefs. The
preliminary injunction analysis thus moves to whether Smith has clearly established
that the Protocol substantially burdens his ability to audibly pray.
The substantial burden prong of the RLUIPA analysis requires that, for the
court to issue a preliminary injunction, Smith clearly establish that the Protocol will
force him to “engage in conduct that seriously violates [his] religious beliefs.” Holt,
574 U.S. at 360 (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720
(2014)).
The Eleventh Circuit has written that “‘substantial burden’ requires
something more than an incidental effect on religious exercise.” Midrash Sephardi,
366 F.3d at 1227.
[A] “substantial burden” must place more than an inconvenience on
religious exercise; a “substantial burden” is akin to significant pressure
which directly coerces the religious adherent to conform his or her
behavior accordingly. Thus, a substantial burden can result from
pressure that tends to force adherents to forego religious precepts or
from pressure that mandates religious conduct.
Id.
The evidence Smith presented that the mask will substantially burden his
ability to audibly pray during his execution was, as described above in the court’s
analysis of Smith’s Eighth Amendment claim, speculative. Dr. Yong and Dr.
Nitschke stated via their declarations that improper sealing of the face mask and
movement of Smith’s head or mouth could complicate the execution process and
may result in prolonged time to death or medical complications short of death. And
Smith stated that this possibility could lead him to elect not to audibly pray while he
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is being executed.14 So while this assertion could be true, it is speculative because
it is not based on any evidence that Smith has presented and because it is untethered
from the mask that will be used during Smith’s execution.
In contrast to the limited evidence that Smith provided, the Defendants
provided substantial evidence showing that the mask used during the execution will
not dislodge if Smith elects to audibly pray. The Defendants provided numerous
videos showing multiple individuals on the execution gurney in the execution
chamber speaking while wearing the mask without any problem associated with
dislodging the mask. (Docs. 62-72 to 62-77.) And further, Stewart-Riley stated in
her affidavit:
3. The mask that ADOC intends to use is designed to fit and
does fit a broad range of wearers. I understand that this type of mask is
commonly used for industrial purposes. The mask features a five-point
strapping system that allows for a secure fit, even in instances where
the wearer needs to communicate with others while wearing the mask.
4. I have observed the mask in use in conditions closely
replicating those that will take place during the execution. … Based on
my observations, the strapping system creates a tight seal. Individuals
wearing the mask have been able to speak audibly without dislodging
the mask. It would be highly unlikely and very difficult for the wearer
to dislodge the mask without use of his or her hands.
(Doc. 39-13 at 2–3.)
In sum, the Defendants have provided substantial evidence that the mask will
not dislodge if Smith audibly prays during his execution. Smith, in contrast,
provided little-to-no actual evidence, let alone compelling evidence, to the contrary.
So, while Smith’s evidence does suggest that it is possible that his audible prayer
14
The court notes that Smith did not plead and did not present evidence that he actually would
elect not to audibly pray out of fear of dislodging the mask. Smith’s pleadings and evidence only
indicate that he believes he would have to choose between the two. (See Doc. 31 at 32–33.)
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could dislodge the mask during his execution to some extent, Smith has failed to
meet the requisite burden required for this court to issue a preliminary injunction.
Having considered the evidence presented at the December 20, 2023 evidentiary
hearing as well as the written and physical evidence submitted by the parties, the
court concludes that Smith has not clearly established that his ability to audibly pray
at the time of his execution will be substantially burdened by wearing the execution
mask.15 Accordingly, Smith has not shown a substantial likelihood of success on the
merits of his RLUIPA claim.
3. The ARFA Claim
Again, ARFA, unlike RLUIPA, only requires that Smith show that the
Protocol will burden his religious exercise. TMAA I, 980 F.3d at 840. But the
difference between ARFA and RLUIPA is irrelevant here: Smith has not clearly
shown that there is likely to be any burden on his ability to audibly pray during his
execution. The evidence presented strongly shows the opposite. Smith will have to
wear a mask during his execution, but Smith has not shown that wearing a mask in
and of itself burdens the exercise of his religion. Smith has therefore not shown a
substantial likelihood of success on the merits of his ARFA claim.
V. CONCLUSION
For these reasons, it is ORDERED as follows:
1.
The Defendants’ Motion to Dismiss (Doc. 39) is GRANTED in part
and DENIED in part. Count One of Plaintiff’s Second Amended Complaint (Doc.
31) is DISMISSED without prejudice. Counts Two, Three, Four, and Five remain.
15
In their supplemental briefing, and at the court’s suggestion, the Defendants state that they are
willing to modify the Protocol to allow Smith to audibly pray with his spiritual advisor in the
execution chamber with the mask off. (See Doc. 66 at 45–46.) But the Defendants did not say
they will in fact modify the Protocol as such, so the court analyzes Smith’s preliminary injunction
request assuming they will not do so.
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