Petition for Writ of Certiorari — Jessie Hoffman, Petitioner v. Gary Westcott, Secretary, Louisiana Department of Public Safety and Corrections, et al.

1a

Appendix A

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

No. 25-70006

March 14, 2025

Lyle W. Cayce

Clerk

JESSIE HOFFMAN,

Plaintiff—Appellee/Cross-Appellant,

versus

GARY WESTCOTT, Secretary, Louisiana Department of

Public Safety and Corrections; DARREL VANNOY,

Warden, Louisiana State Penitentiary, In His Official

Capacity; JOHN DOES, UNKNOWN EXECUTIONERS,

Defendants—Appellants/Cross-Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:25-CV-169

Before HAYNES, HO, and OLDHAM, Circuit Judges.

JAMES C. HO, Circuit Judge:

Jessie Hoffman is scheduled to be executed by

nitrogen hypoxia on March 18, 2025. The district court

has now entered a preliminary injunction preventing

Louisiana state officials from carrying out his execution

on the ground that death by nitrogen hypoxia violates

the Eighth Amendment.

2a

The preliminary injunction is not just wrong. It gets

the Constitution backwards, because it’s premised on

the odd notion that the Eighth Amendment somehow

requires Louisiana to use an admittedly more painful

method of execution—namely, execution by firing squad

rather than by nitrogen hypoxia. That can’t be right.

Indeed, it contravenes Supreme Court precedent. We

accordingly vacate the preliminary injunction.

I.

Hoffman was convicted of first-degree murder for

the kidnapping, rape, and murder of Mary “Molly” Elliot,

and sentenced to death in 1998. See State v. Hoffman,

768 So. 2d 542, 549–50 (La. 2000). He appealed his

conviction to finality, Hoffman v. Louisiana, 531 U.S.

946 (2000), and exhausted all of his state and federal

post-conviction remedies. See State v. Hoffman, 202000137 (La. 10/19/21), 326 So. 3d 232, 235–36, 242

(collecting post-conviction cases). But Hoffman evaded

execution because drug companies refused to provide

Louisiana with the necessary drugs to administer lethal

injection—the State’s only method of execution at the

time.

This changed in 2024, when Louisiana added nitrogen

hypoxia as a method of execution, modeling it after

Alabama’s system. La. R.S. 15:569. The system delivers

pure nitrogen gas to a full-face silicon mask with a

plexiglass screen known as a “source respirator”—

industrial grade and superior to ordinary medical grade

masks. Thick, cushion material presses against the face

and creates a “virtually air tight seal.” The mask has a

one-way inlet valve allowing for airflow into the mask

from the industrial tube that delivers both ambient air

3a

and nitrogen. The mask also allows for exhaling through

another one-way exhaust valve.

Breathing

100%

pure

nitrogen

causes

unconsciousness in less than a minute, with death

following rapidly within ten to fifteen minutes. And it

does not produce physical pain.

Nitrogen hypoxia has been used successfully four

times by the State of Alabama. It is Louisiana’s only

currently available method of execution.

After Louisiana adopted its new nitrogen hypoxia

protocol, Hoffman attempted to revive a prior moot case

challenging Louisiana’s lethal injection protocol via a

Rule 60(b) motion to challenge the nitrogen hypoxia

protocol. The district court sat on this motion until

Hoffman received his death warrant in early February

of this year. It then granted the motion (on procedurally

dubious grounds). Hoffman v. Jindal, No. 12-796-SDDEWD, 2025 WL 582492 (M.D. La. Feb. 21, 2025).

Hoffman filed this suit on February 25 and sought

injunctive relief. After two weeks of expedited

discovery, motion practice, and an evidentiary hearing

on March 7, the district court granted Hoffman’s motion

for a preliminary injunction. Hoffman v. Westcott, No.

25-169-SDD-SDJ, 2025 WL 763945 (M.D. La. Mar. 11,

2025).

First, the district court concluded that Hoffman had

exhausted his administrative remedies under the

PLRA. Id. at *4–5. Second, the district court held that

Louisiana’s nitrogen hypoxia protocol likely violated the

Eighth Amendment. Id. at *12. In doing so, the district

court found that nitrogen hypoxia had a substantial risk

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of superadding pain and suffering. Id. at *10. It also held

that death by firing squad was a reasonable alternative

that would reduce the significant risk of severe pain. Id.

at *11.

Defendants immediately filed this appeal. “Although

the ultimate decision whether to grant or deny a

preliminary injunction is reviewed only for abuse of

discretion, a decision grounded in erroneous legal

principles is reviewed de novo.” Byrum v. Landreth, 566

F.3d 442, 445 (5th Cir. 2009).

II.

The State of Louisiana argues that the district court

erred in holding, first, that Hoffman had exhausted his

administrative remedies, and second, that death by

nitrogen hypoxia likely violates the Eighth Amendment.

We take each in turn.

A.

The Prison Litigation Reform Act (PLRA) provides

that “[n]o action shall be brought with respect to prison

conditions . . . by a prisoner confined in any jail, prison,

or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). Under Louisiana law, a prisoner must

“submit[] a request to the warden briefly setting out the

basis for the claim and the relief sought.” Bargher v.

White, 928 F.3d 439, 447 (5th Cir. 2019) (citation

omitted).

The State argues that Hoffman did not attempt to

raise his complaint in the grievance process. But

Hoffman filed a grievance under the prison’s

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Administrative Remedy Procedure twice—in June after

Louisiana adopted the nitrogen hypoxia protocol and

after he had notice that the State was seeking an

execution warrant. So it can hardly be concluded that

Hoffman did not attempt to raise his complaint in the

grievance process.

The State next argues that Hoffman failed to plead

an alternative basis for his execution in his emergency

Administrative Remedy Procedure.

But the PLRA does not require the prisoner to

provide exacting detail or specific legal theories. “As a

practical matter, the amount of information necessary

will likely depend to some degree on the type of problem

about which the inmate is complaining.” Johnson v.

Johnson, 385 F.3d 503, 517 (5th Cir. 2004).

Hoffman put the State on notice that he was

challenging the method of his execution. That is enough

given the context. So the district court did not abuse its

discretion.

B.

We review a grant of a preliminary injunction for

abuse of discretion, applying the same test that the

district court did. See Winter v. NRDC, 555 U.S. 7, 20–

21 (2008). “That familiar standard requires a plaintiff to

make a clear showing that he is likely to succeed on the

merits, that he is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities

tips in his favor, and that an injunction is in the public

interest.” Starbucks Corp. v. McKinney, 602 U.S. 339,

345 (2024) (quotations omitted). That said, “the absence

of likelihood of success on the merits is sufficient to make

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the district court’s grant of a preliminary injunction

improvident as a matter of law,” such that “we need not

address the three remaining prongs of the test for

granting preliminary injunctions.” Lake Charles Diesel,

Inc. v. General Motors Corp., 328 F.3d 192, 203 (5th Cir.

2003).

“[T]he Eighth Amendment does not guarantee a

prisoner a painless death.” Bucklew v. Precythe, 587

U.S. 119, 132 (2019). As the Supreme Court has held, the

Eighth Amendment only bars those methods of

execution that “intensif[y] the sentence of death with a

(cruel) superaddition of terror, pain, or disgrace.” Id. at

133 (cleaned up). “[T]he Constitution affords a measure

of deference to a State’s choice of execution procedures

and does not authorize courts to serve as boards of

inquiry charged with determining ‘best practices’ for

executions.” Id. at 134 (citation omitted).

For a method of execution to be held unconstitutional

under the Eighth Amendment, a prisoner must meet

two requirements. First, the prisoner must prove that

the method of execution “presents a risk that is ‘sure or

very likely to cause serious illness and needless

suffering.’” Glossip v. Gross, 576 U.S. 863, 877 (2015)

(citation omitted). Second, the prisoner “must show a

feasible and readily implemented alternative method of

execution that would significantly reduce a substantial

risk of severe pain and that the State has refused to

adopt without a legitimate penological reason.”

Bucklew, 587 U.S. at 134. Failure on either requirement

dooms the prisoner’s challenge. See id.

As the district court noted, Hoffman “seeks to be

executed by firing squad . . . instead of nitrogen

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hypoxia.” 2025 WL 763945, at *1. (Hoffman also

proposed execution by a drug cocktail known as

DDMAPh, but the district court correctly rejected that

proposed alternative.)

Hoffman’s argument fails on multiple levels. To

begin with, the district court heard expert testimony

from both parties that nitrogen hypoxia is painless.

Hoffman’s expert explicitly stated that nitrogen hypoxia

“does not cause physical pain.” Id. at *8. Moreover,

experts for both parties agreed that death by firing

squad can cause pain—and would therefore necessarily

be more painful than execution by nitrogen hypoxia.

So Hoffman cannot possibly prevail under the legal

standards set forth by the Supreme Court in Glossip and

Bucklew—and that inferior courts like ours are dutybound to follow.

What’s more, this conclusion is further reinforced by

the fact that the Supreme Court has previously “upheld

a sentence of death by firing squad.” Glossip, 576 U.S.

at 869 (citing Wilkerson v. Utah, 99 U.S. 130, 134–135

(1879)). See also Bucklew, 587 U.S. at 134 (reaffirming

that execution by firing squad is a “traditionally

accepted method[] of execution”). So Hoffman has the

impossible task of challenging a method of execution

that he admits is less painful than other established

methods of execution that the Supreme Court has

already blessed.

The district court justifies its contrary holding by

focusing on psychological terror. But as already

discussed above, the Constitution only forbids the

“superaddition” of terror that is greater than an

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alternative method of execution. Bucklew, 587 U.S. at

133. Hoffman presented no such evidence of superadded

terror to the court—let alone evidence of how execution

by a firing squad would substantially mitigate that

terror. So the district court’s theory would render

capital punishment itself unconstitutional—because

surely every method of execution necessarily involves

some measure of psychological terror.

In sum, the district court didn’t just get the legal

analysis wrong—it turned the Constitution on its head,

by relying on an indisputably more painful method of

execution as its proposed alternative. Reasonable minds

can differ on the proper understanding of the Eighth

Amendment in certain cases, but surely we can all agree

that it does not require State officials to favor more

painful methods of execution over less painful ones.

***

Federal courts play an important but limited role in

our constitutional democracy. The job of a federal

district court is to apply the law to the facts presented

by the parties—and to leave contested political

questions to the political process. When district courts

overstep their bounds and exercise powers that properly

belong in another branch of government, it is incumbent

on federal appellate courts to right the ship and ensure

that the judiciary does not exceed its authority under

Article III of the Constitution. We accordingly vacate

the preliminary injunction.

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HAYNES, Circuit Judge, dissenting:

I think the district court properly exercised its

discretion in granting a preliminary injunction given the

limited amount of time Hoffman had to challenge his

execution by nitrogen hypoxia, which is new in

Louisiana. The district court fully explains all the efforts

made: Hoffman tried throughout and did not wait until

the last minute. Instead, the state did not let him

challenge earlier. The timeline in which he could

challenge it and the setting of his execution date, which

is March 18, all happened within the last month. As the

district judge thoroughly discusses, there are issues that

need more time to be resolved and decided. Obviously,

that cannot be done once he is dead. While I am not

suggesting a long time, I do think granting a preliminary

injunction to allow some additional time to further

review and address the method of execution (in addition

to the other reasons given by the district court) is not an

abuse of discretion by the district court.

Although the majority opinion concludes that the

district court abused its discretion through legal error,

that conclusion overlooks some of the district court’s

factual findings, which we must accept unless clearly

erroneous. For example, the majority opinion states

that breathing pure nitrogen causes unconsciousness in

less than a minute. But it fails to address the district

court’s finding that “[o]n the low end, conscious terror

and a sense of suffocation endures for 35 to 40 second,”

while “[o]n the high end, conscious psychological

suffering endures for 3 to 5 minutes if an unwilling

inmate holds his breath.” If Hoffman were to be

executed by a firing squad, which is his requested and

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preferred method, the district court found that he would

be rendered unconscious in three to four seconds. That

is a significant difference that is crucial to the Eighth

Amendment analysis. Unfortunately, the majority

opinion does not adequately address the facts as

properly found by the district court, which, in my

opinion, did not abuse its discretion. Accordingly, I

respectfully dissent from the majority opinion.

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Appendix B

United States District Court

Middle District of Louisiana

_________

CIVIL ACTION

No. 25-169-SDD-SDJ

_________

JESSIE HOFFMAN

versus

GARY WESTCOTT, et al.

RULING

Before the Court is a Motion for Preliminary

Injunction filed by Plaintiff Jessie Hoffman, (“Plaintiff”

or “Hoffman”).1 Defendants Gary Westcott, (“Secretary

Westcott”), Secretary for the Louisiana Department of

Public Safety and Corrections, (“DPSC); Darrel Vannoy,

Warden of the Louisiana State Penitentiary, (“Warden

Vannoy”); and John Does, unknown executioners,

(collectively, “Defendants” or “the State”), oppose the

1

Rec. Doc. 4.

12a

motion.2 Plaintiff has filed a reply.3 The Court held a

preliminary injunction hearing on March 7, 2025. During

this hearing, Plaintiff urged the Court to reconsider its

denial of his RLUIPA4 claim (Count VI).5

After reviewing the evidence, and considering the

law and arguments of the parties, for the reasons which

follow, the Court shall GRANT the Plaintiff’s Motion for

Preliminary Injunction under the Eighth Amendment,

DENY the Plaintiff’s Motion to Reconsider the

RILUIPA claim, and DENY Injunctive Relief in all

other respects. The Defendants shall be enjoined from

executing Jessie Hoffman on March 18, 2025, using

nitrogen hypoxia.

I. BACKGROUND

Plaintiff is a death row inmate at the Louisiana State

Penitentiary in Angola, Louisiana, (“Angola”). He was

sentenced to death by lethal injection on September 11,

1998, for the murder of Mary “Molly” Elliot.6 Over 26

years later on February 20, 2025, Plaintiff was served

the death warrant for his March 18, 2025 execution.7

2

Rec. Doc. 56.

3

Rec. Doc. 75.

4

Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 U.S.C. § 2000cc et seq.

5

Rec. Doc. 87, p. 115.

6

State v. Hoffman, 1998-3118 (La. 4/11/00); 768 So. 2d 542, 549–50.

7

See Rec. Doc. 56-2, p. 5 (suggesting the death warrant was issued

on February 10, 2025); Rec. Doc. 86, pp. 25–26 (Plaintiff’s testimony

13a

Secretary Westcot8 chose nitrogen hypoxia as Plaintiff’s

method of execution, not lethal injection as per his

September 11, 1998 death sentence.9

Hoffman does not challenge his conviction or death

sentence. He challenges the method of his execution

under 42 U.S.C. § 1983. He seeks to be executed by firing

squad or a drug cocktail known as DDMAPh instead of

nitrogen hypoxia, which he argues poses a substantial

risk of severe psychological pain when compared to the

alternatives he proposes.

Nitrogen hypoxia is the deprivation of oxygen

through the inhalation of nitrogen.10 In February 2024,

the Louisiana legislature amended La. R.S. § 15:569 to

add nitrogen hypoxia as a method of execution effective

July 2024.11 Now, the State has the option to execute

those on death row in one of three ways: lethal injection,

electrocution, and nitrogen hypoxia.12 Louisiana is one of

only four states that authorizes execution by nitrogen

from PI hearing that he was served the death warrant on February

20, 2025).

8

Secretary Westcott has been the Secretary of the Louisiana

Department of Public Safety and Corrections since August 2024.

Rec. Doc. 87, p. 24.

9

Id.

10

See, e.g., id. at p. 30 (Dr. Bickler defining hypoxia).

11

See La. R.S. § 15:569(A); La. Acts 2024, 2nd Ex. Sess., No. 5, §1,

eff. July 1, 2024.

12

La. R.S. § 15:569(A).

14a

hypoxia.13 Alabama is the only state that has used this

method and has done so on four occasions since January

25, 2024.14 The parties do not dispute that Louisiana’s

nitrogen hypoxia protocol was modeled after, and is

identical to, Alabama’s protocol in all relevant respects.

After years of being unable to conduct executions

through lethal injection, the Governor on March 5, 2024,

signed a law that adds nitrogen hypoxia as a means of

execution available to the DPSC.15 This law took effect

on July 1, 2024.16 Before the law took effect, the DPSC

visited Alabama to see its nitrogen gas execution

system17 and purchased the nitrogen that would be used

in executions.18 By November 2024, and after two trips

to Alabama, Louisiana’s nitrogen gas execution system

was “assembled and in place” at Angola.19 Training on

13

Oklahoma, Mississippi, and Alabama also have nitrogen hypoxia

as a method of execution. See Okla. Stat. tit. 22, § 1014(B); Miss.

Code § 99-19-51(1); Ala. Code § 15-18-82.1.

14

See Frazier v. Hamm, No. 24-732, 2025 WL 361172 (M.D. Ala. Jan.

31, 2025) (discussing the Alabama executions of Demetrius Frazier,

Kenneth Smith, Alan Miller, and Carey Grayson by nitrogen

hypoxia).

15

See La. R.S § 15:569 and its legislative history, available at

https://legis.la.gov/legis/BillInfo.aspx?s= 242ES&b=ACT5&sbi=y.

16

Id.

17

Rec. Doc. 86, p. 178.

18

Id. at pp. 162–63.

19

Rec. Doc. 87, p. 18.

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the nitrogen system started in November 2024.20

Obviously, DPSC anticipated the ability to use nitrogen

for executions. Yet, despite the leg work that DPSC had

already undertaken, Louisiana’s execution protocol, a

carbon copy of Alabama’s, was not promulgated until

February 7, 2025.21

Almost immediately thereafter, Hoffman’s death

warrant was signed and served upon him, giving him

less than 60 days to challenge his method of execution.

Then he was stymied by the State’s refusal to produce

even a redacted version of his execution protocol. By

order of the Court, the State produced the protocol to

Hoffman pursuant to a protective order three days

before the hearing.22 This highlights a key difference

between Louisiana and Alabama. Alabama finalized its

execution protocol in late August of 2023,23 and its first

nitrogen hypoxia execution was on January 25, 2024.24

Here, Louisiana finalized its protocol in the eleventh

hour, allowing Hoffman virtually no time to seek

redress.

Plaintiff filed this suit on February 25, 2025,

challenging the constitutionality of nitrogen hypoxia as

Louisiana’s chosen method of his execution.25 He brings

20

Id. at pp. 14–15

21

Id. at p. 12.

22

Rec. Doc. 41.

23

Frazier, 2025 WL 361172, at *3.

24

Id. at *5.

25

Rec. Doc. 1.

16a

multiple claims, including violations of the First, Sixth,

Eighth, and Fourteenth Amendments of the United

States Constitution; the Ex Post Facto Clause, Article

1, § 10 of the Constitution; 18 U.S.C. § 3599, providing

access to counsel; and RLUIPA, 42 U.S.C. § 2000cc et

seq.26 Plaintiff filed a Motion for Preliminary Injunction

seeking to prohibit the State from executing him on

March 18, 2025, through nitrogen hypoxia.27 He prays

that “the execution should be stayed by preliminary

injunction to allow for a reasonable period of expedited

discovery, briefing and a hearing with experts so that

this case may be decided on a developed record.”28

Given Plaintiff’s scheduled execution date of March

18, 2025, the Court set a preliminary injunction hearing

for March 7, 2025.29 The parties had exactly one week to

prepare for the hearing, which included exchanging

expert declarations, redacting sensitive information

from documents, agreeing to stipulations of fact,

responding to written discovery, conducting numerous

depositions, preparing witnesses, assembling exhibits,

and engaging in motion practice.30

With respect to motion practice, Defendants filed a

Motion to Dismiss Plaintiff’s claims,31 which Plaintiff

26

Id.

27

Rec. Doc. 4.

28

Rec. Doc. 4-1, p. 3.

29

Rec. Doc. 29.

30

See, e.g., Rec. Docs. 10, 33, 40, 55.

31

Rec. Doc. 55.

17a

opposed.32 The Court granted Defendants’ Motion to

Dismiss in part and denied it in part.33 Specifically, the

Court dismissed as moot the claim for Refusal to

Disclose the Execution Protocol Claim (Count V). The

Court dismissed the Religious Exercise Claims (Counts

VI and VII) with prejudice. The Eighth Amendment, Ex

Post Facto and Right to Counsel/Access to Courts

claims (Counts I-IV) proceeded to hearing. Plaintiff

urges the Court to reconsider denying his RLUIPA

claim (Count VI).34

The Court held a preliminary injunction hearing on

March 7, 2025, beginning approximately at 9:00 a.m. and

ending sometime past 8:00 p.m. Multiple witnesses

testified, making the hearing transcript over 400 pages.35

The parties received copies of the hearing transcript on

the morning of Saturday March 8, 2025, and had until

March 9, 2025, at 9:00 a.m. to submit to the Court

Proposed Findings of Fact and Conclusions of Law.

Now, after an expedited hearing, and absent a fully

developed record, this Court must answer the ultimate

question: is nitrogen hypoxia cruel and unusual

punishment under the Eighth Amendment? If Plaintiff

can prove there is a substantial likelihood that he will

succeed on this claim—or any of his remaining claims for

that matter—do the balance of equities weight in his

32

Rec. Doc. 69.

33

Rec. Doc. 79. Defendants filed a 12(b)(6) Motion to Dismiss but

have not yet answered the Complaint.

34

Rec. Doc. 87, p. 115.

35

See Rec. Docs. 86, 87.

18a

favor, insomuch as it is in the public’s interest for this

Court to issue an injunction prohibiting the irreparable

harm that will result from his March 18, 2025 execution?

II. MOTION TO RECONSIDER DISMISSAL OF

PLAINTIFF’S RLUIPA CLAIM

Plaintiff moves for reconsideration of the Court’s

12(b)(6) dismissal of his RLUIPA claim.36 Count VI

alleges that the execution by nitrogen hypoxia violates

RLUIPA because it substantially burdens Hoffman’s

religious exercise to breathe meditatively since he will

be deprived from breathing air.37 RLUIPA states that

[n]o government shall impose a

substantial burden on the religious

exercise of a person residing in or

confined to an institution . . . even if 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.38

The Supreme Court has summarized the RLUIPA test

as follows:

36

Rec. Doc. 87, p. 115.

37

Rec Doc. 1, ¶¶ 233–38.

38

42 U.S.C. § 2000cc–1(a).

19a

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.39

The Court finds that meditative breathing is an

exercise attendant to practicing Hoffman’s chosen faith

of Buddhism.40 The Court dismissed Hoffman’s

RLUIPA claim finding that substituting nitrogen for

atmospheric air does not substantially burden Hoffman’s

ability to breath. Nothing in the evidence changes this

conclusion. The record evidence established that

nitrogen is an inert, tasteless, colorless, odorless gas.41

39

Ramirez v. Collier, 595 U.S. 411, 425 (2022) (quoting 42 U.S.C. §

2000cc–1(a); Holt v. Hobbs, 574 U.S. 352, 360–62 (2015)) (cleaned up).

40

“[T]raditional forms of religious exercise” satisfy the religious

exercise prong of RLUIPA. Id. at 425, 427.

41

Rec. Doc. 87, p. 89.

20a

“[A] government action or regulation creates a

‘substantial burden’ on a religious exercise if it truly

pressures the adherent to significantly modify his

religious behavior and significantly violate his religious

beliefs.”42 Plaintiff responds that Hoffman’s “sincerely

held religious beliefs are substantially burdened not

because he will be unable to breathe” but because he will

be forced to breath nitrogen instead of air.43 At the

preliminary injunction hearing, two Buddhist clerics

testified that air (not nitrogen) is necessary for

meditative breathing.44 They cited no religious text or

instruction by the historical Buddha in support of this

proposition.

The Court finds that Buddhism calls its adherents to

a ritual of breathing rhythmically to achieve a mediative

state, what the clerics referred to as “zen.” This is

analogous to Western religions’ practice of prayer. The

Plaintiff admits that he will have the ability to breathe

in the nitrogen as it is administered.45 The Court finds

there is no substantial burden to his exercise of rhythmic

breathing. The Court denies reconsideration of this

claim.

42

Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004).

43

Rec. Doc. 69, p. 20 (emphasis added).

44

Rec. Doc. 86, pp. 48, 49 (Reverend Michaela Bono), 103 (Reverend

Reimoku Gregory Smith).

45

Id. at p. 39.

21a

III. EXHAUSTION UNDER THE PLRA

Hoffman filed a grievance as soon as the law adding

nitrogen hypoxia as a method of execution went into

effect on July 1, 2024.46 The Defendants rejected his

grievance as premature, stating:

REJECTED. Your request has been rejected for

the following reason(s):

YOUR GRIEVANCE ALLEGING THAT

VARIOUS

EXECUTION

METHODS

CONSTITUTE CRUEL AND UNUSUAL

PUNISHMENT IN VIOLATION OF THE

CONSTITUTION HAS BEEN REJECTED AS

PRE-MATURE, AS IT CONCERNS EVENTS

THAT HAVE NOT YET HAPPENED

AND/OR ACTIONS OR DECISIONS THAT

HAVE YET TO OCCUR. A VALID DEATH

WARRANT HAS YET TO ISSUE IN YOUR

CASE, AND THE LAW ENACTING THE

VARIOUS

EXECUTION

MEANS

OUTLINED IN YOUR GRIEVANCE HAS

YET TO TAKE LEGAL EFFECT. FOR THE

REASONS

STATED

ABOVE,

YOUR

REQUEST FOR RELIEF IS RE-JECTED

WITHOUT CONSIDERA-TION ON THE

MERITS. PLEASE NOTE THAT REJECTED

REQUESTS

FOR

ADMINISTRATIVE

46

Rec. Doc. 69-1, pp. 1–6.

22a

REMEDY ARE NOT APPEALABLE TO THE

SECOND STEP.47

After his attorneys received notice that the State

was seeking an execution warrant, Hoffman filed a

grievance under the prison’s Administrative Remedy

Procedure (“ARP”) on February 10, 2025.48 Angola

responded to his grievance advising that a response

would be issued within 40 days, i.e., after his scheduled

execution.49 Hoffman then filed a second emergency

grievance on February 14, 2025.50 No response to the

second emergency grievance is contained in the record.

“Where an administrative process does not facilitate

addressing execution-related claims within the

timeframe of a scheduled execution, it is likely not an

‘available’ remedy that must be exhausted under the

PLRA.”51 When prison officials mishandle an inmate’s

grievance, it cannot be said that he failed to exhaust his

remedies.52

Defendants complain that Hoffman did not plead an

alternative method of execution in his emergency ARP.

However, the Prison Litigation Reform Act does not

require legal detail in a grievance. Grievances must

47

Id. at p. 8.

48

Rec. Doc. 56-2, pp. 2, 5–7.

49

Id. at p. 4.

50

Id. at pp. 9–12.

51

Ramirez, 595 U.S. at 438 (2022) (Sotomayor, J., concurring).

52

Dole v. Chandler, 438 F.3d 804, 811 (7th Cir. 2006).

23a

provide a factual basis “to identify problems, but need

not necessarily advance specific legal theories.”53 An

incarcerated person “need not present legal theories in

his grievance[].”54 The purpose of an ARP is fair notice.

The State was on notice that Hoffman challenged his

method of execution.

Defendants challenge Hoffman’s failure to include his

Ex Post Facto and Right to Counsel/Access to Courts

Claims in is ARP. The Prison Litigation Reform Act

provides that “[n]o action shall be brought with respect

to prison conditions . . . by a prisoner confined in any

jail, prison, or other correctional facility until such

administrative remedies as are available are

exhausted.”55 This is not a conditions of confinement

claim. The remedy Hoffman seeks—a declaration that

La. R.S. § 15:569 is unconstitutional under the Ex Post

Facto Clause, 18 U.S.C. 3599, and the Sixth and Eighth

Amendments of the U.S. Constitution cannot be

redressed through the prison grievance process.56

The Court finds that Plaintiff has exhausted all

available remedies. Based on these facts, there is no

administrative process available for Hoffman to obtain

any relief for the actions complained of. An

administrative process is not available if it is not

53

Williams v. Estelle Unit Prison Offs., No. 23-20036, 2024 WL

3026778, at *3 (5th Cir. June 17, 2024) (citing Johnson v. Johnson,

385 F.3d 503, 517 (5th Cir. 2004)).

54

Johnson, 385 F.3d at 517.

55

42 U.S.C. § 1997e(a).

56

Ross v. Blake, 578 U.S. 632, 639 (2016).

24a

“‘capable of use’ to obtain ‘some relief for the action

complained of.’”57

IV. MOTION FOR PRELIMINARY INJUNCTION

Legal Standard for Preliminary Injunctions

A preliminary injunction is an “extraordinary and

drastic remedy” that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief.58 A

plaintiff seeking injunctive relief must demonstrate by a

preponderance of the evidence that “(1) it is likely to

succeed on the merits, (2) it is likely to suffer irreparable

harm without an injunction, (3) the balance of equities

tips in its favor, and (4) an injunction is in the public

interest.”59

“The decision to grant or deny a preliminary

injunction is discretionary with the district court.”60

However, because a preliminary injunction is an

extraordinary remedy, it “should not be granted unless

the party seeking it has clearly carried the burden of

persuasion on all four requirements.”61 Consequently,

57

Id. at 642 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).

58

Munaf v. Geren, 553 U.S. 674, 689 (2008).

59

United States v. Abbott, 110 F.4th 700, 706 (5th Cir. 2024) (citation

omitted).

60

Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d

618, 621 (5th Cir. 1985).

61

Planned Parenthood v. Suehs, 692 F.3d 343, 348 (5th Cir. 2012).

25a

the decision to grant a preliminary injunction is “the

exception rather than the rule.”62

Irreparable Harm

Wright & Miller instructs that “[p]erhaps the single

most important prerequisite for the issuance of a

preliminary injunction is a demonstration that if it is not

granted the applicant is likely to suffer irreparable harm

before a decision on the merits can be rendered.”63 Here,

Plaintiff will most certainly suffer irreparable harm if his

claim for injunctive relief is not decided prior to his

March 18, 2025 execution date. No harm is more

irreparable than death. Finding so, the Court moves to

the remaining elements of the preliminary injunction

analysis.

Substantial Likelihood of Success on the Merits

A. Eighth Amendment Claims (Counts I and II)

Plaintiff argues that nitrogen hypoxia execution

violates the Eighth Amendment prohibition against

cruel and unusual punishment facially and as applied to

him.

“[C]lassfying a lawsuit as facial or as-applied affects

the extent to which the invalidity of the challenged law

must be demonstrated and the corresponding ‘breadth

of the remedy,’ but it does not speak at all to the

substantive rule of law necessary to establish a

62

63

Miss. Power & Light Co., 760 F.2d at 621.

11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure § 2948.1 (3d ed. 2024).

26a

constitutional violation.”64 It is well settled that “[w]hile

the Eighth Amendment doesn’t forbid capital

punishment, it does speak to how States may carry out

that punishment, prohibiting methods that are ‘cruel and

unusual.’”65 “Punishments are cruel when they involve

torture or a lingering death[.]”66 “It implies . . .

something inhumane and barbarous, something more

than the mere extinguishment of life.”67

To that end, the question in dispute is whether the

State’s chosen method of execution “intensifie[s] the

sentence of death” with “a (cruel) superaddition of

terror, pain or disgrace.”68 “As originally understood, the

Eighth Amendment tolerated methods of execution, like

hanging, that involved a significant risk of pain, while

forbidding as cruel only those methods that intensified

the death sentence by ‘superadding’ terror, pain, or

disgrace.”69 “To establish that a State’s chosen method

cruelly ‘superadds’ pain to the death sentence, a prisoner

must show a feasible and readily implemented

alternative method that would significantly reduce a

substantial risk of severe pain and that the State has

64

Bucklew v. Precythe, 587 U.S. 119, 138 (2019) (citing Citizens

United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010)).

65

Id. at 130.

66

Baze v. Rees, 553 U.S. 35, 49 (2008) (quoting In re Kemmler, 136

U.S. 436, 447 (1890)).

67

Id. (quoting In re Kemmler, 136 U.S. at 447).

68

Bucklew, 587 U.S. at 133 (cleaned up).

69

Id. at 119.

27a

refused to adopt without a legitimate penological

reason.”70

“Only through a ‘comparative exercise,’ . . . can a

judge ‘decide whether the State has cruelly

“superadded” pain to the punishment of death.’”71 Here,

Plaintiff proposes two alternative methods of execution:

firing squad and DDMAPh, which is a regimen used for

medical-aid-in-dying. The fact that these methods are

not authorized under Louisiana law is immaterial.72 In

such a scenario, as the United States Supreme Court has

explained, “the State can enact legislation approving

what a court has found to be a fairly easy-to-employ

method of execution.”73 When a state “has legislated

changes to its execution method several times before[,]”

there is “no reason to think that the amendment process

would be a substantial impediment.”74

Therefore, the Court’s analysis turns on whether

Plaintiff has shown a substantial likelihood that (1)

making the condemned breath pure nitrogen until dead

cruelly superadds pain and suffering to the execution

70

Id. at 119–20 (citing Baze, 553 U.S. at 52; Glossip v. Gross, 576

U.S. 863, 867–78 (2015)).

71

Nance v. Ward, 597 U.S. 159, 164 (2022) (quoting Bucklew, 587

U.S. at 136).

72

See Nance, 597 U.S. 159 (holding that Section 1983 is an

appropriate vehicle for a method-of-execution claim where the

prisoner proposes an alternative method not authorized under their

State’s law).

73

Id. at 170.

74

Id.

28a

when compared to firing squad or DDMAPh; (2) firing

squad or DDMAPh is “feasible, readily implemented and

in fact significantly reduce[s] a substantial risk of severe

pain;”75 and (3) the state has refused to adopt one of these

methods without a legitimate penological reason.

1.

Substantial Risk of Harm

“Nitrogen hypoxia” as a method of execution was

first advanced in 2014 by four criminal law professors at

Oklahoma’s East Central University.76 Louisiana has

never executed or attempted to execute a condemned

inmate by nitrogen gassing, nor has the federal

government. The only state to have used nitrogen gas as

a method of execution is Alabama. To date, Alabama has

executed four condemned men by nitrogen hypoxia.77 In

the execution context, the condemned is forced to inhale

pure nitrogen, which displaces the oxygen in the lungs

thereby robbing the body of oxygen needed for survival.

Eyewitness accounts from these executions are the most

probative evidence of what death by forced inhalation of

nitrogen looks like.

75

Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at 52).

76

MICHAEL COPELAND ET AL., NITROGEN INDUCED HYPOXIA AS A

FORM OF CAPITAL PUNISHMENT (2014) (a white paper by

Professors Michael Copeland, Christine Pappas, and Thomas Parr

proposing asphyxiation by nitrogen gas, coining “nitrogen hypoxia”

as an alternative to lethal injection).

77

See Frazier, 2025 WL 361172 (discussing the Alabama executions

of Demetrius Frazier, Kenneth Smith, Alan Miller, and Carey

Grayson by nitrogen hypoxia).

29a

The accounts of all four Alabama executions describe

suffering, including conscious terror for several minutes,

shaking, gasping, and other evidence of distress. In

particular, eyewitnesses observed:

•

violent writhing of the entire body

under the straps “to the point that

the entire gurney [was] moving up

and down”;78

•

vigorous convulsing and shaking for four

minutes;79

•

repeated gasping while conscious;80

•

minutes of conscious struggling for life;81

•

heaving and spitting;82

•

two minutes of shaking and

trembling “followed by about six

minutes of periodic gulping breaths

before [becoming still]”;83

78

Rec. Doc. 68-2, James Finn, Jeff Landry supports death penalty

by nitrogen gas. Here’s how an eyewitness described it, THE

ADVOCATE, February 20, 2024, Https://www.nola.com/news/pol

itics/legislature/witness-recounts-nitrogen-execution-supported-b

y-jeff-landry/article_be56ebb8-d021-11ee-8b2b-772fa7c8c892.html.

79

Rec. Doc. 4-5, pp. 213–14.

80

Id. at pp. 211, 218.

81

Id. at pp. 228, 285.

82

Id. at pp. 74, 271.

83

Rec. Doc. 4-1, Ivana Hrynkiw, Alabama inmate Alan Miller

executed with nitrogen gas Thursday for 1999 shootings, AL.com

30a

A spiritual advisor, who also happens to be a physician,

recounts his observations as follows: “We don’t see

people jerking around like that while they’re dying

normally. His face was twisted, and he looked like he was

suffering.”84

None of these eyewitnesses testified at the

preliminary injunction. In the absence of eyewitness

testimony of executions by nitrogen hypoxia, the

parties’ called medical experts. Plaintiff called Dr. Philip

Bickler,85 a Board-Certified Anesthesiologist whom the

State stipulated is an expert in the fields of

“Anesthesiology and Human Hypoxia.”86 Defendants

called Dr. Joseph F. Antognini, a Board-Certified

Anesthesiologist whom Plaintiff’ stipulated is an expert

in the fields of “Anesthesiology, General Medicine, and

Physiology.”87

Dr. Bickler has extensive clinical experience

observing the effects oxygen deprivation (hypoxia) on

humans and the scientific study of controlled blood

(Sept. 26, 2024 8:59 PM), https://www.al.com/news/2024/09/alabamainmate-alan-miller-set-to-be-executed-with-nitrogen-gas-thursday

-for-1999-shootings.html.

84

Ivana Hrynkiw, Alabama inmate Alan Miller executed with

nitrogen gas Thursday for 1999 shootings, AL.com (Sept. 26, 2024

8:59 PM), https://www.al.com/news/2024/09/alabama-inmate-alanmiller-set-to-be-executed-with-nitrogen-gas-thursday-for-1999-sho

otings.html.

85

Rec. Doc. 4-5, pp. 5–72 (Dr. Bickler CV).

86

Rec. Doc. 87, p. 27.

87

Id. at pp. 126–27.

31a

oxygen desaturation. For thirty years, he has conducted

clinical research on human subjects in various states of

hypoxia.88 He has conducted at least 5,000 hypoxia

studies on humans involving administering low oxygen

containing gas and monitoring the subjects’ responses.89

From his work at the Hypoxia Research Laboratory, he

has published extensively in peer-reviewed scientific

and medical journals regarding the physiological effects

of hypoxia on humans and other animals.90 The Court

finds Dr. Bickler is a qualified expert in the field on

anesthesiology, and the Court finds Dr. Bickler to be

superbly qualified in the field of human hypoxia, owing

to his long and extensive clinical work in the effect of low

oxygen (hypoxia) on humans.

On the other hand, Dr. Antognini has never clinically

studied the effects of hypoxia on humans. He has not

published nor presented any studies regarding the

effects of nitrogen hypoxia. Professionally, the only

study of human hypoxia Dr. Antognini has done is in

connection to providing opinions to Alabama and

Louisiana in support of nitrogen hypoxia execution. He

has testified for various states in fifteen to twenty lethal

injection execution cases and in five cases involving

nitrogen hypoxia.91

88

Id. at p. 30. He runs a Hypoxia Research Lab.

89

Id. at p. 44.

90

See Rec. Doc. 4-5, pp. 5–72 (Dr. Bickler CV).

91

Rec. Doc. 87, p. 203. The five cases involving nitrogen hypoxia

include: Smith v. Hamm, No. 23-656, 2024 WL 116303 (M.D. Ala.

Jan. 10, 2024); Miller v. Marshall, No. 24-197, 2024 WL 3737346

32a

Dr. Bickler explained the physiological effects of

oxygen depletion. When oxygen levels drop, “it sets off

all our alarm bells. It hyperactivates our sympathetic

nervous system, so there is an increase in heart rate, in

blood pressure. You feel blood pounding in your head.

You have an increased drive to breathe. You feel like

you’re gasping for air.”92 Hypoxia “elicits [a] massive

sympathetic nervous system response . . . it produces a

terror response.”93 “Your drive to breathe overcomes

your conscious will.”94 He explained that the “lungs are

a four-to-five-quart reservoir of air which contains 20%

oxygen. So it may take a number of minutes depending

on the breathing volume [for nitrogen] to wash out all

the oxygen that is remaining in the lungs.”95 “[W]hat this

represents is forced asphyxiation, gassing a subject to

death, exposing him to a lack of oxygen such that both

extreme discomfort, distress, pain, and terror would be

felt all the way up to the point of losing consciousness.”96

Dr. Bickler agrees that nitrogen hypoxia does not cause

physical pain. “It does not cause physical pain in terms

of somatic pain. It causes emotional terror.”97 Both

(M.D. Ala. July 8, 2024); Grayson v. Hamm, No. 24-376, 2024 WL

4701875 (M.D. Ala. Nov. 6, 2024); Frazier v. Hamm, No. 24-732, 2025

WL 361172 (M.D. Ala. Jan. 31, 2025); and the instant matter.

92

Rec. Doc. 87, pp. 34–35.

93

Id. at pp. 40–41.

94

Id. at p. 43.

95

Id. at p. 93.

96

Id. at pp. 32–33.

97

Id. at p. 98.

33a

experts agree that nitrogen hypoxia does not produce

physical pain.98

On the question of psychologic pain, Dr. Antognini

agreed that oxygen deprivation in the lungs triggers an

instinctual response driven by respiratory centers in the

brain that tell your body to breathe.99 He also agreed

that if your brain is telling you to breathe and your mind

knows breathing will kill you, this creates “severe

emotional suffering.”100 Thus, there is agreement among

the experts that the inability to quiet the primal urge to

breathe is severe emotional suffering. The question

becomes how long this psychological suffering is likely to

endure. What is the time between nitrogen onset and

unconsciousness?

Dr. Bickler candidly concedes that a person who is

administered 100% pure nitrogen and is breathing

normally will lose consciousness in less than one

minute.101 But if the condemned holds his breath, Dr.

Bickler opines that it could take 3 to 5 minutes to lose

consciousness.102 In order to minimize the time to

98

Id. at pp. 98, 169.

99

Id. at p. 187. Dr. Antognini tries to limit the primal response to

breathe to circumstances of hypercapnia, a condition caused by

excess CO2 in the lungs. Id. at pp. 380–81. The court finds Dr.

Bickler’s opinion that oxygen deficiency, and not the type of gas

depleting the oxygen, triggering the panic response to breathe is

more credible.

100

Id.

101

Id. at p. 83.

102

See id. at pp. 50, 58.

34a

unconsciousness, and thus the duration of suffering, the

condemned must cooperate in his own execution.

However, the ability to cooperate (repeatedly inhale

deeply) would require the condemned to mentally

overcome the primal urge to breathe that is triggered by

lack of oxygen.103 On the other hand, if the condemned

holds his breath, Dr. Bickler opines that it could take 3

to 5 minutes to lose consciousness.104 The State’s expert,

Dr. Antognini, agrees that breath-holding will increase

the time until loss of consciousness.105

After careful consideration of these medical experts

and their opinions in the context of their reliance

materials and experience, the Court credits Dr. Bickler’s

testimony and opinions over Dr. Antognini’s. Dr

Antognini’s opinions are untested scientific hypotheses.

The studies on which he relies are either irrelevant or

unpersuasive.106

103

Id. at p. 211 (rebuttal testimony of Dr. Bickler explaining that

low oxygen, not CO2 or other gas, displacement creates the hunger

and panic for air).

104

See id. at pp. 50, 58.

105

Id. at pp. 184–85.

106

Dr. Antognini relied on an Ernsting paper, two Ogden papers,

Miller and Mazur, and a “dog study.” Reliance on the dog euthanasia

study is flawed. Dr. Antognini admits dogs have different

ventilation, different cardiac output, and different metabolisms as

compared to humans and would be unlikely to hold their breath. Id.

at pp. 199–200. The Ernsting paper is not instructive on time to loss

of consciousness for the reasons discussed in this Ruling at infra p.

18 and note 10. The Miller and Mazur paper is a white paper, not a

study or experiment. Rec. Doc. 87, p. 200. It includes no method

information or data. The Ogden papers were the work of a

35a

The Court is convinced by Dr. Bickler’s testimony

and by common sense107 that the deprivation of oxygen

to the lungs causes a primal urge to breathe and feelings

of intense terror when inhalation does not deliver

oxygen to the lungs. The experts agree and the Court

finds that this causes severe psychological pain. The

experts also agree that this severe psychological pain

endures until the loss of consciousness.108 Dr. Antognini

argues that loss of consciousness will occur between 10

and 40 seconds from inhalation of nitrogen, and Dr.

Bickler opines that consciousness will more likely persist

for a minute or more. On the low end, conscious terror

and a sense of suffocation endures for 35 to 40 seconds.109

On the high end, conscious psychological suffering

endures for 3 to 5 minutes if an unwilling inmate holds

his breath.

The Ernsting study,110 cited and relied upon by both

Dr. Bickler and Dr. Antognini, is a human nitrogen

hypoxia study done in 1960 and is the only study that

recorded time to unconsciousness following the

Sociologist who observed videos of four voluntary suicides by

helium ingestion. Id. at pp. 152; 197–99.

107

One need only hold their breath to understand that there is a

primal urge to breath. Breath-holding causes inhaled CO2 to

displace the oxygen in the lungs as it is carried out of the lungs to

the rest of the body. In the case of breath-holding, O2 is displaced

by CO2; the physiological effect of displacement by nitrogen is no

different. See id. at pp. 210–17 (Bicker Rebuttal).

108

Id. at pp. 98, 169.

109

Rec. Doc. 87, p. 326

110

Id. at p. 57.

36a

inhalation of pure nitrogen. In the Ernsting study,

human subjects were instructed to fully exhale and then

hyperventilate 100% pure nitrogen. Under those

circumstances, the subjects lost consciousness in 30 to 40

seconds.111 The controlled variables in the Ernsting

study (complete exhalation and hyperventilated inhale

of nitrogen) are not analogous to execution conditions.

The Ernsting study supports the conclusion that when

the inhalation and exhalation variables are uncontrolled,

as it will be in an execution setting, the time to

unconsciousness will be longer than 30-40 seconds. Dr.

Antognini admitted that the results of experiments

using different methods cannot be compared and that

the Ernsting method, involving the purging of lung air

followed by the hyperventilation of nitrogen, is “very

different” from Louisiana’s nitrogen hypoxia method.112

The Court does not credit Dr. Antognini’s opinion

that the Louisiana’s system “will cause unconsciousness

within 35 to 40 seconds or perhaps sooner once the

inmate starts to inhale in 90 to 100% nitrogen gas.”113

This opinion is belied by the Ernsting study which

documents unconsciousness occurring 30 to 40 seconds

after purging of air from the lungs followed by the

hyperventilation of nitrogen. Dr. Antognini conceded

that “Dr. Bickler is absolutely right that the lungs will

have some oxygen in [them,] [s]o you have to consider

not just the volume of the mask but also the volume of

111

Id.

112

Id. at pp. 192–93.

113

Id. at p. 132.

37a

the lungs.”114 He opines that unconsciousness will occur

“around 10 to 12 seconds” after the “inspired oxygen

level is down to about 5%.”115 He candidly referred to his

time to unconsciousness as an “estimate.”116

Short of direct observation of humans in hypoxic

states, Dr. Antognini presents nothing more than a

scientific hypothesis. The scientific method calls for

testing hypotheses. His hypothesis could have been

tested by observation of the Alabama executions. Dr.

Antognini testified for the state in the first Alabama

execution (Smith). Alabama hired him in connection with

the next three nitrogen hypoxia executions (Miller,

Grayson, and Frazier). Dr. Antognini did not observe

any of these three Alabama executions following his

initial opinion and hypothesis. His hypothesis regarding

time until unconsciousness remains untested and

unsubstantiated.

The Court finds that Dr. Bickler’s thirty years of

clinical research, specifically studying hypoxia in

humans, results in reliable scientific understanding of

the physiological effect of hypoxia in humans. Anecdotal

evidence from eyewitnesses to the four Alabama

nitrogen hypoxia executions corroborate and reinforce

his opinions.117 The Court finds that Plaintiff has clearly

shown that he is substantially likely to prove that

114

Id. at p. 147.

115

Id. at p. 149.

116

Id. at p. 151.

117

See Rec. Doc. 4-5, pp. 206–285.

38a

nitrogen hypoxia poses a substantial risk of conscious

terror and psychological pain.

2.

Alternative Methods

Plaintiff’s two proposed alternatives are firing squad

and DDMAPh. The Court begins with addressing firing

squad as a proposed alternative.

At the preliminary injunction hearing, Plaintiff called

Dr. James Williams to testify, whom the State stipulated

is an expert in the fields of “Emergency Medicine and

Firearms.118 Dr. Williams has been an Emergency Room

physician for over 30 years and has seen and treated

scores of gunshot wounds.119 Dr. Williams is also

recognized by the International Association of Law

Enforcement Instructors and the International Law

Enforcement Educators and Trainers Association as

having an expertise in firearms and ballistics.120 Dr.

Williams testified at length, basing his opinions on his

professional observations and experience, his knowledge

of firearms and ballistics, and the State of Utah’s

Department of Corrections and the United States

Military’s firing squad protocols.121

118

Rec. Doc. 86, p. 105.

119

Id. at p. 104.

120

Id. at p. 105.

121

Id. at pp. 104–31.

39a

Stated simply, execution by firing squad is the

process of firing multiple high caliber bullets122 in

someone’s “cardiac bundle.” The cardiac bundle is “the

larger organ of the heart and all of its accessory

structures, as well as the great vessels above and around

the heart . . . .”123 Military rifle calibers are used, causing

multiple bullets to strike “the individual’s body at a

velocity of around 2800 feet per second . . . .”124 These

bullets “strike the body with a combined energy of

roughly the equivalent of being struck by a 3-quarterton fully loaded truck in about .04 seconds and traverse

the torso of the individual.”125 “[T]he bullets will strike

the outside of the body and then traverse through the

heart, unleashing tremendous destructive energy upon

the heart, which will literally tear the heart to pieces . . .

.”126 “This is significant destructive power which is

unleased in less than a fraction of a second and would

cause complete cessation of all cardiac output from the

moment the bullets traverse the heart.”127

“[U]nconsciousness occurs very rapidly in a period of

about 3 to 4 seconds.”128

122

Utah’s protocol provides for four bullets, South Carolina’s three,

and the Military’s up to eight. See id. at p. 108.

123

Id. at pp. 106–07.

124

Id. at p. 108.

125

Id.

126

Id.

127

Id. at p. 109.

128

Id. at p. 110.

40a

The Court finds Dr. Williams’ testimony that the

condemned would be rendered unconscious in 3 to 4

seconds credible. As explained above, Dr. Bickler and

Dr. Antognini differ on how long the condemned will

suffer psychological terror before becoming unconscious

during a nitrogen hypoxia execution. The Court finds it

substantially likely that Hoffman will be able to prove a

duration of conscious suffering of 30 to 40 seconds. Thus,

the Court concludes that Hoffman has clearly

demonstrated that he is substantially likely to prevail in

his assertion that nitrogen hypoxia superadds pain and

terror as compared to firing squad.

Execution by firing squad has been upheld by the

Supreme Court under the Eighth Amendment.129 The

firing squad method of execution is currently approved

by five states,130 and South Carolina most recently

utilized this method on March 7, 2025.131 “Point[ing] to a

well-established protocol in another State as a

potentially viable option” is probative of whether a

129

Wilkerson v. Utah, 99 U.S. 130 (1878) (upholding a sentence to

death by firing squad imposed by a territorial court, rejecting the

argument that such a sentence constituted cruel and unusual

punishment). (cited in Baze, 553 U.S. at 48, and Bucklew, 587 U.S.

at 131).

130

Mississippi, Miss. Code § 99-19-51; Oklahoma, Okla. Stat. tit. 22,

§ 1014; Utah, Utah Code § 77-18-113; South Carolina, S.C. Code §

24-3-530; and Idaho, Idaho Code § 19-2716.

131

Jeffrey Collins and Patrick Phillips, ‘Violent and sudden’:

Witness to first SC firing squad execution describes what he saw,

LIVE 5 WCSC (Mar. 8, 20225, 11:15 AM), https://www.live5news.

com/2025/03/08/violent-sudden-witness-first-sc-firing-squad-execu

tion-describes-what-he-saw/.

41a

proposed alternative is acceptable and available.132

Considering this, there is no legitimate, penological

reason why the State has refused to adopt this method

of execution. Just as the State modeled its nitrogen

hypoxia protocol and procedures after Alabama, it could

do the same with the five other states that use firing

squad as a method of execution. Chief Operations Offer

of the DPSC Seth Smith, (“COO Smith”), testified that

the DPSC maintains a supply of firearms and

ammunition and has officers trained and skilled in the

use of firearms.133

The Court finds that Plaintiff has clearly shown a

substantial likelihood that (1) making the condemned

breath pure nitrogen until dead cruelly superadds pain

and suffering to the execution when compared to firing

squad; (2) firing squad is “feasible, readily implemented,

and in fact significantly reduce[s] a substantial risk of

severe pain;”134 and (3) that the State has failed to adopt

firing squad as a method of execution without a

legitimate penological reason.

Though Plaintiff satisfies his burden through his first

proposed alternative of firing squad, he does not meet

this burden with respect to his second proposed

alternative of DDMAPh. At the preliminary injunction

132

Nance v. Ward, 597 U.S. 159, 165 (2022) (quoting Bucklew, 587

U.S. at 140). Again, the Court need not hinge its analysis on the fact

that firing squad is not authorized under Louisiana law. See id. at

170.

133

Rec. Doc. 86, p. 160.

134

Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at 52).

42a

hearing, Plaintiff called Dr. Charles David Blanke,

whom Defendants stipulated was an expert in medicalaid-in-dying and the drugs and methods used in the

field.135 Dr. Blanke testified that DDMAPh is a five-drug

cocktail of digoxin, diazepam (commonly known as

Valium), amitriptyline, morphine, and phenobarbital.136

“Most commonly, people ingest the combination of drugs

mixed up in some apple juice and/or apple syrup by

swallowing it.”137 However, DDMAPh in the execution

context would likely involve rectal administration.

According to Dr. Blanke, the average time to

unconsciousness is 5.8 minutes, and the average time to

death is about 96 minutes.138

DDMAPh is not a feasible and readily available form

of execution in Louisiana. At the hearing, COO Smith

testified credibly that drugs used for executions are not

available to the State. He testified that “Morris and

Dickson and Pfizer, and other drug manufacturers,

maybe not in writing, have made it very clear to [the

DPSC] that if [it] use[s] any of their medication for a

capital punishment case, they reserve the right to pull

all of their medication off the table.”139 He went on to

explain that the DPSC has an aging population and runs

135

Rec. Doc. 86, p. 133.

136

Id. at p. 135.

137

Id.

138

Id. at p. 139.

139

Id. at p. 176–77.

43a

“large infirmaries” and “full-blown hospitals.”140 In

short, the DPSC “cannot run the risk of losing access to

life-saving drugs . . . .”141 The Court agrees and finds that

DDMAPh is not a feasible and readily available form of

execution. Accordingly, Plaintiff has failed to meet his

burden with respect to DDMAPh.

The Court concludes that there is a substantial

likelihood that Plaintiff will succeed on the merits that

nitrogen hypoxia violates the Eighth Amendment’s

prohibition against cruel and unusual punishment.

Plaintiff has shown that nitrogen hypoxia superadds

psychological pain, suffering, and terror to his execution

when compared to execution by firing squad. He has

shown that execution by firing squad is a feasible and

readily available alternative that the State has no

legitimate penological reason for not adopting. Finding

that Plaintiff has met his burden as to his facial

challenge, the Court need not address his as-applied

challenge but notes that there is evidence in the record

that execution by nitrogen hypoxia is cruel and unusual

as applied to him.142

The fact that no method of execution has been

violative of the Eighth Amendment does not change the

140

Id. at p. 177.

141

Id.

142

See, e.g., Rec. Doc. 87, pp. 33–34 (Dr. Bickler’s testimony that “for

someone like Mr. Hoffman, nitrogen asphyxiation would be a

particularly horrible method, a really inhumane choice for an

individual who has a history of PTSD.”); id. at p. 36 (“If someone has

an anxiety disorder, the degree of difficulty goes up

exponentially.”).

44a

Court’s opinion. The Court in Bucklew recognized the

importance of a full record, noting that “Mr. Bucklew

had ample opportunity to conduct discovery and develop

a factual record.”143 After three executions, in Frazier v.

Hamm the Middle District of Alabama recognized that

“the longer an inmate remains conscious while breathing

in nitrogen during an execution, the more likely it

becomes that the Eighth Amendment may be

violated.”144

B. Ex Post Facto Clause Claim (Count III)

The Ex Post Facto Clause of the United State

Constitution “forbids . . . Congress and the States to

enact any law ‘which imposes a punishment for an act

which was not punishable at the time it was committed;

or imposes additional punishment to that then

prescribed.’”145 In Weaver v. Graham, the Supreme

Court discussed its 1915 decision in Malloy v. South

Carolina146 and explained that in Malloy, a change in the

method of execution was “not ex post facto [where]

evidence showed the new method to be more humane

. . .”147 In Sepulvado v. Jindal, the Fifth Circuit cited

Weaver and Malloy and explained that “a post-offense

change in a state’s execution protocols would violate the

143

Bucklew, 587 U.S. at 144.

144

2025 WL 361172, at *14.

145

Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v.

Missouri, 4 Wall. 277, 325–26 (1866)).

146

237 U.S. 180 (1915).

147

Weaver, 450 U.S. 32 n.17.

45a

ex post facto prohibition unless the change in execution

method is more humane than the prior method of

execution.”148 In Nelson v. Campbell, the Supreme Court

succinctly explained that there is “no ex post facto

violation to change [a] method of execution to [a] more

humane method.”149

The Court agrees with the Defendants that the Ex

Post Facto claim “rises and falls” on whether execution

by nitrogen hypoxia will subject Plaintiff “to an

increased punishment [that is] a less humane method of

execution than lethal injection, which was his original

method of execution.” 150

The method of execution change in this case was from

lethal injection to nitrogen hypoxia. The Plaintiff

submitted scant evidence comparing the harm of lethal

injection to the harm of nitrogen hypoxia. The Plaintiff

therefore failed to demonstrate that he is substantially

likely to succeed on this claim.

C. Right to Counsel and Access to Courts Claim

(Count IV)

Hoffman argues that he has a constitutional right to

have counsel151 present at his execution, in order to

148

739 F.3d 716, 722 n.5 (5th Cir. 2013).

149

541 U.S. 637, 644 (2004) (citing Weaver, 450 U.S. at 32–33 n.17).

150

Rec. Doc. 81, ¶ 114.

151

Prisoners have a Sixth Amendment right to access to counsel at

all “critical” stages of criminal proceedings. United States v. Wade,

388 U.S. 218, 227-28 (1967).

46a

protect his constitutional right to access the Courts.152

Citing the Southern District of Ohio, Hoffman argues

that he has a right to counsel throughout the execution

procedure and during the execution.153 Hoffman also

cites to the Eastern District of Arkansas, the Middle

District of Tennessee, and the Sixth and Eighth Circuits

in support of his position.154 However, the Fifth Circuit

holds that a claim of the right to counsel “during the

events leading up to and during the execution” under the

First, Sixth, and Eighth Amendment is “without

merit.”155 The Fifth Circuit further instructs that “the

possibility of “botched executions” that access to counsel

could address [to the Courts] . . . fails as well.”156 Under

the law of the Fifth Circuit, Plaintiff fails to show a

substantial likelihood of prevailing on Count IV.

152

Prisoners have a right under the First and Fourteenth

Amendments to access to the courts. See, e.g., Lewis v. Casey, 518

U.S. 343, 350–51 (1996).

153

Rec. Doc. 1, ¶ 219; Rec. Doc. 82, ¶ 139 (citing In re Ohio

Execution Protocol Litig., No. 11-1016, 2018 WL 6529145, at *4–5

(S.D. Ohio Dec. 12, 2018)).

154

Rec. Doc. 82, ¶¶ 141–45 (citing McGehee v. Hutchinson, 463 F.

Supp. 3d 870, 925 (E.D. Ark. 2020), aff’d sub nom. Johnson v.

Hutchinson, 44 F.4th 1116 (8th Cir. 2022); Coe v. Bell, 89 F. Supp.

2d 962 (M.D. Tenn. Apr. 3, 2000); and Coe v. Bell, 230 F.3d 1357 (6th

Cir. 2000)).

155

Whitaker v. Collier, 862 F.3d 490, 501 (5th Cir. 2017).

156

Id. at 467.

47a

D. Balance of Equities and the Public’s Interest

The final two elements Plaintiff must satisfy for a

preliminary injunction are that the threatened harm (a

violation of the Eighth Amendment) outweighs any

harm that may result to the State (delay in carrying out

a sentence), and that the injunction will not undermine

the public interest.157 These factors may be considered

together particularly because “[t]hese factors merge

when the Government is the opposing party,”158 and

these two factors overlap considerably.159 In weighing

equities, a court must balance the competing claims of

injury and must consider the effect on each party of the

granting or withholding of the requested relief.160 The

public interest factor requires the court to consider what

public interests may be served by granting or denying a

preliminary injunction.161

The Court finds that the balance of equities and

public interest weigh in favor of enjoining Hoffman’s

March 18, 2025 execution through nitrogen hypoxia until

the matter can be resolved at a trial on the merits. The

Fifth Circuit holds that an injunction does not disserve

the public interest when it prevents constitutional

157

Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1051 (5th Cir.

1997).

158

Nken v. Holder, 556 U.S. 418, 435 (2009).

159

Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015).

160

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

161

Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978, 997–

98 (8th Cir. 2011).

48a

deprivations.162 Stated another way, injunctions preventing the violation of constitutional rights are “always

in the public interest.”163

The Court is asked to make this important decision

on an undeveloped record after an expedited

preliminary injunction hearing. Hoffman is going to be

executed. It’s not a question of if; it’s merely a question

of how, and the alternatives are quickly narrowing.

Louisiana has no readily available electric chair164 and

cannot get the drugs needed for lethal injection.165 The

only viable alternatives appear to be nitrogen hypoxia

and firing squad. The State’s desire for swiftness does

not prevail over well-informed deliberation.

There have been only four executions by nitrogen

hypoxia in the United States. These executions were

carried out by the state of Alabama between January 25,

2024, and February 6, 2025.166 On all four occasions, the

condemned chose nitrogen hypoxia as their method of

162

Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 n.9

(5th Cir. 2014).

163

Id. at 458 (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir.

2012). See also Ingebretsen on behalf of Ingebretsen v. Jackson

Public Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); see also, e.g., G &

V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th

Cir. 1994); Charles H. Wesley Educ. Fdn., Inc. v. Cox, 408 F.3d 1349,

1355 (11th Cir. 2005); Deerfield Med. Ctr. v. City of Deerfield Beach,

661 F.2d 328, 338–39 (5th Cir. 1981).

164

Rec. Doc. 87, p. 15.

165

Rec. Doc. 86, p. 176–77.

166

See Frazier, 2025 WL 361172, at *3.

49a

execution. In Alabama, “[a] death sentence shall be

executed by lethal injection, unless the person sentenced

to death affirmatively elects to be executed by

electrocution or nitrogen hypoxia.”167 This is in stark

comparison to Louisiana, which delegates the method of

execution to the discretion of the DPSC Secretary.168

The State even refused to make the new nitrogen

hypoxia protocol available to the public. The State

relented to releasing a redacted protocol to the public

until the day before the preliminary injunction

hearing.169 The redacted protocol easily meets the

definition of a public record170 under Louisiana law, yet

167

Ala. Code § 15-18-82.1(a).

168

La. R.S. § 15:569(A).

169

Rec. Doc. 70.

170

See La. R.S. § 44:1(A)(2)(a) (“All books, records, writings,

accounts, letters and letter books, maps, drawings, photographs,

cards, tapes, recordings, memoranda, and papers, and all copies,

duplicates, photographs, including microfilm, or other

reproductions thereof, or any other documentary materials,

regardless of physical form or characteristics, including

electronically stored information or information contained in

databases or electronic data processing equipment, having been

used, being in use, or prepared, possessed, or retained for use in the

conduct, transaction, or performance of any business, transaction,

work, duty, or function which was conducted, transacted, or

performed by or under the authority of the constitution or laws of

this state, or by or under the authority of any ordinance, regulation,

mandate, or order of any public body or concerning the receipt or

payment of any money received or paid by or under the authority of

the constitution or the laws of this state, are ‘public records’, except

as otherwise provided in this Chapter or the Constitution of

Louisiana.”)

50a

the State shrouded the redacted protocol in secrecy until

the day before the hearing.

The public has an interest in knowing how its

government operates. The obfuscation of the protocol by

the State is deleterious to the public’s interest. The

United States Constitution is simply the government’s

promises to its citizens. The Eighth Amendment is the

government’s assurance that no citizen will be punished

by means that are cruel and unusual. Courts are the

arbiter of whether the government honors this promise

to her people. It is in the best interests of the public to

examine this newly proposed method of execution on a

fully developed record. The public has paramount

interest in a legal process that enables thoughtful and

well-informed deliberations, particularly when the

ultimate fundamental right, the right to life, is placed in

the government’s hands. Accordingly, Plaintiff’s Motion

for Preliminary Injunction is granted.

51a

V. CONCLUSION

Considering the foregoing, Plaintiff’s Motion to

Reconsider the Court’s Denial of his RLUIPA Claim

(Count VI) shall be DENIED. Plaintiff’s Motion for

Preliminary Injunction shall be GRANTED on the

Eighth Amendment claim, and Defendants are enjoined

from executing Jessie Hoffman on March 18, 2025, using

nitrogen hypoxia. Plaintiff’s Motion for Preliminary

Injunction is DENIED as to Counts III and IV.

Baton Rouge, Louisiana, this 11th day of March, 2025

/s/ Shelly D. Dick

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

52a

Appendix C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

_________

CIVIL ACTION

No. 25-169-SDD-SDJ

_________

JESSIE HOFFMAN

versus

GARY WESTCOTT, et al.

ORDER

The Court having made findings of fact and

conclusions of law and for the written reasons specified

by the Court in its Ruling [Rec. Doc. 89],

IT IS HEREBY ORDERED that the Defendants,

GARY WESTCOTT, Secretary, Louisiana Department

of Public Safety and Corrections; DARREL VANNOY,

Warden, Louisiana State Penitentiary; and JOHN

DOES, unknown executioners, and all persons working

on their behalf, be and are hereby ENJOINED from

executing JESSIE HOFFMAN, until the Plaintiff’s

claims are decided after a trial on the merits and a final

judgment issued.

53a

SIGNED in Baton Rouge, Louisiana, this 11th day of

March, 2025.

/s/ Shelly D. Dick

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

54a

Appendix D

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF LOUISIANA

(BATON ROUGE)

JESSIE HOFFMAN

VS.

PLAINTIFF

CIVIL ACTION NO. 3:25CV00169-SDD-SDJ

GARY WESTCOTT,

SECRETARY,

LOUISIANA DEPARTMENT OF

PUBLIC SAFETY AND

CORRECTIONS;

DARREL VANNOY, WARDEN,

LOUISIANA STATE

PENITENTIARY;

JOHN DOES, UNKNOWN

EXECUTIONERS

DEFENDANTS

TRANSCRIPT OF HEARING ON MOTION FOR

PRELIMINARY INJUNCTION

VOLUME 1 OF 2

BEFORE THE HONORABLE SHELLY D. DICK

UNITED STATES DISTRICT JUDGE

MARCH 7, 2025

BATON ROUGE, LOUISIANA

55a

****

[8] All right. The Court yesterday granted in part

the motion to dismiss filed by the defendants and denied

in part the motion to dismiss filed by the defendants.

The Court will hereby enter or give oral reasons for that

judgment.

Before the Court is a motion to dismiss by the

defendants, Gary Westcott, who is the Secretary of the

Louisiana Department [9] of Public Safety &

Corrections, and Darrel Vannoy, the warden of

Louisiana State Penitentiary, and John Does, unknown

executioners (hereafter collectively referred to as either

the Defendants or the State). The Plaintiff is Mr. Jessie

Hoffman, who opposes the motion.

The Court has reviewed the allegations, the

arguments of the parties and the law and is prepared to

rule. For the following reasons, the defendants’ motion

to dismiss is granted in part and denied in part.

Specifically, the defendants’ motion is granted with

respect to refusal to disclose the execution protocol on

the grounds of mootness. And the religious exercise

claims, Claims VI and VII, are dismissed with prejudice.

In all other respects, the defendants’ motion is denied.

The Court is providing its reasons orally this

morning in the interest of efficiency. With the exception

of a few instances, the Court will not provide pinpoint

citations to case law or the record. When citing case law,

as I mentioned, the Court, unless there is a noted

exception, the Court will not provide reporter citations.

The Court will be quoting from relevant case law but

56a

without orally pronouncing the beginning and end of the

quoted language.

The Court will first address the plaintiff’s claim that

the defendants refused to disclose the execution

protocol. As the defendants note in their motion, the

plaintiff now has [10] access to the execution protocol,

both the full protocol under seal and the redacted

protocol, which is in the public record. Accordingly, the

plaintiff’s claim for refusal to disclose the execution

protocol is dismissed as moot.

The Court will next address the jurisdictional

argument. The defendants styled their motion as a Rule

12(b)(6) motion to dismiss for failure to exhaust

administrative remedies under the Prison Litigation

Reform Act. The exhaustion argument presents a

jurisdictional challenge under 12(b)(1). However, a

motion to dismiss under 12(b)(1) is analyzed under the

same standard as a motion to dismiss under 12(b)(6).

The Court cites Benton versus United States, Fifth

Circuit 1992.

The party invoking jurisdiction bears the burden of

proving that the Court may adjudicate this case.

Ramming versus United States, Fifth Circuit 2001.

When considering a 12(b)(1) motion, “The Court is

permitted to look at the evidence in the record beyond

simply those facts alleged in the complaint and its proper

attachments.” Ambraco versus Bossclip, Fifth Circuit

2009.

The Court may consider the complaint alone, the

complaint supplemented by undisputed facts evidenced

in the record or the complaint supplemented by

57a

undisputed facts plus the Court’s resolution of disputed

facts.

Williamson v. Tucker, Fifth Circuit 1981.

“Ultimately, a motion to dismiss for lack of subject

matter jurisdiction should be granted only if it [11]

appears certain that the plaintiff cannot prove any set of

facts in support of his claim that would entitle the

plaintiff relief.” Ramming, Fifth Circuit 2001.

In this case, the defendants argue that all counts

cannot proceed because the administrative remedies are

unexhausted. Mr. Hoffman counters that he has

exhausted all available remedies.

The Prison Litigation Reform Act -- the Court may

refer to it as PLRA -- requires a prisoner to exhaust all

available remedies before filing suit, even in the

execution context. Ramirez v. Collier, Supreme Court

2022. Where there are no available remedies, the

petitioner may proceed. Gallegos-Hernandez versus

United States, Fifth Circuit 2012.

In July, 2024, Mr. Hoffman filed an ARP generally

challenging the three methods of execution that were

then authorized by Louisiana Revised Statute 15:569.

The DPSC rejected his grievance as premature.

On February 11, 2025, the day after the Governor

publicly announced that the DPSC had finalized and

implemented the nitrogen hypoxia protocol but before

the death warrant had been entered and before his

execution date had been scheduled, Mr. Hoffman filed

Step 1 of the ARP with the DPSC. In that ARP, he

challenged the scheduled execution by nitrogen hypoxia.

DPSC responded stating, “A response will be issued

within 40 days of this date.” Forty days from that

58a

response or the response date [12] would be March 23,

2025, after Mr. Hoffman’s scheduled execution.

Based on these facts, there is no administrative

process available to Mr. Hoffman to obtain any relief for

the actions complained of. An administrative process is

not available if it is not capable of use to obtain some

relief for the action complained of. The Court cites Ross

versus Blake, Supreme Court 2016.

Mr. Hoffman challenges the constitutionality and the

legality of the method of his scheduled execution. His

claims are not that the DPSC has misapplied statutory

or regulatory authority. The Court finds it is futile for

him to seek relief from those who are charged with

enforcing the state laws authorizing his execution by

nitrogen hypoxia. Gallegos-Hernandez case, Fifth

Circuit 2012. Accordingly, the motion to dismiss for

failure to exhaust administrative remedies is denied.

The defendants argue that the plaintiff has failed to

state a claim or state a cause of action with respect to his

Eighth Amendment claims, Counts I and II; his religious

exercise claims, Counts VI and VII; and his right to

counsel and access to Court claim, Count IV; and his ex

post facto claim, Count III. The Court will address each

in turn.

When deciding a Rule 12(b)(6) motion to dismiss, “the

Court accepts all well-pleaded facts as true, viewing

them in [13] the light most favorable to the plaintiff.”

The quote cites the Katrina Canal Breaches case, Fifth

Circuit 2007. The Court may consider the complaint, its

proper attachments, documents incorporated into the

59a

complaint by reference and matters of which a Court

may take judiciary notice.

To survive a 12(b)(6) motion, the plaintiff must plead

enough facts to state a plausible claim for relief that is -or a claim for relief that is plausible on its face. The

Court cites the Supreme Court in the Twombly case and

the Katrina Breaches Litigation in the Fifth Circuit.

In Twombly, the United States Supreme Court set

forth the basic criteria for a complaint to survive the

12(b)(6) motion to dismiss. “While the complaint

attacked by Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, a plaintiff’s obligation

is to provide the grounds of his entitlement to relief, and

it requires more than mere labels and conclusions and

more than a formulaic recitation of the elements of a

cause of action.”

A complaint is insufficient if it merely “tenders naked

assertions devoid of further factual enhancement.”

That’s the Ashcroft versus Iqbal case, Supreme Court

2009. However, “a claim has facial plausibility when the

plaintiff pleads factual content that allows the Court to

draw a reasonable inference that the defendant is liable

for the misconduct alleged.” Also Ashcroft.

[14] In order to satisfy the plausibility standard, the

plaintiff must show more than a sheer possibility that

the defendant has acted unlawfully. Further, while the

Court must accept well-pleaded facts as true, it will not

strain to find inferences favorable to the plaintiff. On a

motion to dismiss, the Courts are not bound to accept a

legal conclusion that is couched as a factual conclusion or

is a factual allegation.

60a

At the outset, the Court notes that the defendants’

memorandum in support of their motion to dismiss is

identical to their memorandum in opposition to their

motion for preliminary injunction. The plaintiff points

out that the defendants failed to conduct any analysis

under the 12(b)(6) legal standard in their motion to

dismiss. In fact, the defendants’ memorandum, their

12(b)(6) memorandum, mentions 12(b)(6) parenthetically

only one time. The defendants failed to address the

Twombly plausibility standard, and they utterly failed to

argue that the allegations of the complaint failed to meet

the 12(b)(6) plausibility requirements.

In short, the defendants wholly neglect to address

the sufficiency of the plaintiff’s allegations. On this basis

alone, the Court could deny the defendants’ motion.

However, in the absence of the defendants’ analysis, the

Court conducted the pertinent 12(b)(6) analysis.

In turning first to the Eighth Amendment claims, it

is well settled, as stated by the Supreme Court, that

while the [15] Eighth Amendment does not forbid capital

punishment, it does speak to how states may carry out

that punishment, prohibiting methods that are cruel and

unusual. That’s the Bucklew case, Supreme Court 2019.

To that end, the question in dispute is whether the

State’s chosen method of execution cruelly superadds

pain to the death sentence. If it does, then a prisoner

must show a feasible and readily implemented

alternative method of execution that would significantly

reduce a substantial risk of severe pain and that the

State has refused to adopt without legitimate

penological reason.

61a

Reading the plaintiff’s allegations in the light most

favorable to him, as the Court must do on a motion to

dismiss, the plaintiff satisfies Bucklew. In his complaint,

the plaintiff pleads the process of nitrogen hypoxia and

alleges that this method of execution superadds pain to

his death sentence. He proposes two alternative

methods of execution that are feasible and readily

available and would significantly reduce a substantial

risk of severe pain. These methods include firing squad

and execution by the administration of medical-aid-indying, or MAID. He also alleges that the State has no

penological reason for implementing the method of

execution chosen by the State.

Plaintiff further alleges that nitrogen hypoxia as a

method of execution is unconstitutional as applied to

him. He [16] explains that he has PTSD and manages it

through Buddhist meditative breathing techniques. As

plaintiff alleges, the placement of a gas mask over his

face, preventing his use of these breathing techniques to

manage PTSD, while strapped to a gurney, would

trigger his PTSD that he developed from claustrophobia

from events in his childhood.

Considering the foregoing and the factual allegations

of the plaintiff’s complaint, the Court finds that the

plaintiff has plausibly pled claims under the Eighth

Amendment. The defendants’ motion to dismiss Counts

I and II is denied.

Moving to the religious exercise claim, Counts VI

and VII, the plaintiff asserts two religious exercise

claims based on the assertion that breathing in nitrogen

during his execution would prevent him from practicing

his Buddhist meditative breathing practices at the time

62a

of his death. These claims include a Religious Land Use

and Institutionalized Persons Act claim, the Court will

call it RLUIPA, Count VI, and a First Amendment

claim under the free exercise clause, Count VII. The

plaintiff did not oppose dismissal of his free exercise

claim, Count VII, under the First Amendment.

Accordingly, the Court considers the claim abandoned,

and the defendants’ motion to dismiss the plaintiff’s free

exercise claim, Count VII, is granted, and that claim is

dismissed.

Plaintiff does, however, oppose dismissal of the

RLUIPA claim. Under RLUIPA, no government shall

impose a substantial [17] burden on the exercise of free

religion of any person residing or confined to an

institution, even if that burden results from a rule

generally

applicable,

unless

the

government

demonstrates that the imposition of the burden on that

person, number one, is in furtherance of a compelling

governmental interest; and, number two, is the least

restrictive means of furthering that compelling

governmental interest.

The defendants’ move for dismissal on the grounds

that Mr. Hoffman’s inability to engage in his Buddhist

breathing practices during his execution is not a

substantial burden on his religious exercise. The

defendants submit that the plaintiff will not be in fact

prevented from breathing. Plaintiff responds that Mr.

Hoffman’s sincerely held religious beliefs are

substantially burdened not because he will be unable to

breathe but because he will be unable to breath or he will

be forced to breathe nitrogen in lieu of ambient air.

63a

In Adkins v. Kaspar, the Fifth Circuit in 2004

explained that a government action or regulation creates

a substantial burden on a religious exercise if it truly

pressures the adherent to significantly modify his

religious behavior and significantly violates his religious

beliefs.

The Court does not find it plausible that breathing

nitrogen instead of air substantially burdens Mr.

Hoffman’s religious breathing practices. While it may

impose some burden, the Court does not find it

substantial. The plaintiff [18] himself acknowledges that

he will have the ability to breathe as the nitrogen is

administered. Mr. Hoffman, in short, will not be

prevented from breathing. The evidence of meditative

breathing may still be relevant as related to his “as

applied” Eighth Amendment claim, but the Court finds

that the plaintiff has failed to state a claim under

RLUIPA, and the defendants’ motion to dismiss as to

this issue is granted.

The right to counsel and access to Courts claim,

which is Count IV. The defendants, in two sentences,

argue that the plaintiff’s right to counsel only extends to

his first appeal and that the plaintiff does not have a

constitutionally protected interest in having counsel

present throughout his execution. The plaintiff notes

that the defendants completely misconstrue the

plaintiff’s claim under Count IV. The plaintiff contends

that the claim stems from the fact that the protocol does

not permit counsel to be present for any aspect of the

execution procedure, which thereby deprives Mr.

Hoffman of the right to seek redress in the courts at

precisely those points in the process when problems

64a

with the protocol’s implementation are most likely to

arise.

As we have learned from Alabama’s failed attempts

to execute Mr. Smith by lethal injection, access to the

courts in an execution is of paramount importance,

especially in this case where the State has no experience

and has never used this method of execution before.

[19] Accordingly, the defendants’ motion to dismiss is

denied with respect to the plaintiff’s right to counsel and

access to Courts claim, which is Count IV.

And finally, the ex post facto claim, the ex post facto

clause of the United States Constitution forbids

Congress and the States from enacting any law which

imposes a punishment for an act which was not

punishable at the time it was committed or imposes

additional punishment to that than prescribed. Weaver

versus Graham, Supreme Court 1981.

In their argument for dismissal, defendants cite the

1915 Supreme Court case of Mallory versus South

Carolina. They argue that under Mallory, there is no

ex post facto clause violation when there is no change to

the form of punishment, in other words, death, but only

a change to the mode of that punishment or the mode of

execution in this case. The defendants’ view, since there

has been change only to the mode of execution, that the

plaintiff has not pled a claim under the ex post facto

clause.

The Court finds that the defendants

misinterpret Mallory.

In Weaver versus Graham, in 1981, the Supreme

Court explained that in Mallory -- or explained further

Mallory, that a change in the method of execution is not

65a

ex post facto because evidence showed, or was not in

that case ex post facto because the evidence showed the

new method to be more humane. In Sepulvado v. Jindal,

the Fifth Circuit in 2013, citing the [20] Supreme Court

cases of Weaver and Mallory, explained that “A post

offense change in the State’s execution protocols would

violate the ex post facto prohibition unless the change in

the execution method is more humane than the prior

method of execution.”

In Nelson versus Campbell, the Supreme Court, in

2004, succinctly explained that it is not an ex post facto

violation to change a method of execution to a more

humane method. The Court finds that the plaintiff has

sufficiently alleged that the nitrogen hypoxia is an

inhumane method of execution. In particular, the

plaintiff cites to the American Veterinary Medical

Association as having outlawed gassing as a method of

euthanasia for dogs and cats, and has cited to the United

Nations, which has expressed concerns that death by

nitrogen gas likely violates prohibitions on torture and

inhumane punishments.

The plaintiff has also set out a plethora of facts from

Alabama’s four executions by nitrogen hypoxia to

support his allegation that this type of death creates

terror and extreme pain and suffering. In paragraphs 94

and 95 of the complaint, the plaintiff alleges that there

was a challenge to the nitrogen gas and electrocution

protocols at -- to the nitrogen gas and electrocution as

less humane than lethal injection. The Louisiana 24th

Judicial District Court held that 15:569, which was the

two methods available at that time, were [21]

unconstitutional on ex post facto grounds. Though this

66a

is not a specific factual allegation that nitrogen hypoxia

is less humane than lethal injection, the Court is bound

to read the plaintiff’s allegations liberally in a light most

favorable to him.

When reading this allegation in connection with the

plaintiff’s allegations in paragraph 211, that if executed

with nitrogen gas, the defendants will retroactively

subject him to an increased punishment for a crime after

his sentence, the Court finds that the plaintiff has

sufficiently alleged nitrogen hypoxia to be a less humane

method of execution than lethal injection, which was his

original method of execution.

For these reasons, the Court finds that the plaintiff

has plausibly pled a claim under the ex post facto clause

of the United States Constitution, and the defendants’

motion to dismiss Count III is denied.

In summary, the motion to dismiss filed by the

defendants is granted in part and denied in part. The

defendants’ motion is granted with respect to refusal to

disclose execution protocol on the grounds of mootness,

Count V. The religious exercise claims, Counts VI and

VII, are dismissed without prejudice. The motion to

dismiss is denied as to the Eighth Amendment claims,

Counts I and II; the ex post facto claim, Count III; and

the right to counsel and access to Courts claim, Count

IV. Thus, the Court will now proceed with the hearing

on [22] Counts I, II, III and IV.

****

67a

Appendix E

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JESSIE HOFFMAN

VERSUS

GARY WESTCOTT, ET AL.

CIVIL ACTION

NO. 3:25-169-SDD-SDJ

MARCH 7, 2025

HEARING ON MOTION FOR PRELIMINARY

INJUNCTION

BEFORE THE HONORABLE SHELLY D. DICK

UNITED STATES CHIEF DISTRICT JUDGE

VOLUME 2 OF 2

****

[309]

MR. STRONSKI: Your Honor, we would like to move

for reconsideration of the dismissal of the RLUIPA

claim in view of the additional new evidence at the

hearing relating to the importance of the breathing

practices, the essential nature of the breathing practices

to the Buddhist faith and how this process and method

will interfere with them.

THE COURT: The court will defer that until the close

of all the evidence.

68a

MR. STRONSKI: Thank you, Your Honor.

****

[410]

MR. STRONSKI: Your Honor, we made a motion to

reconsider. I don’t know if that’s -- you said you would

consider that later or now?

THE COURT:

No. The court will take that up in its

written reasons.

MR. STRONSKI: Thank you.

****