Opposition Brief — Jessie Hoffman, Petitioner v. Gary Westcott, Secretary, Louisiana Department of Public Safety and Corrections, et al.

Supreme Court briefMar 17, 2025

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Nos. 24A893 & 24-6778

In the Supreme Court of the United States

JESSIE HOFFMAN,

Applicant-Petitioner,

GARY WESTCOTT, ET AL.,

Respondents.

APPENDIX TO BRIEF IN OPPOSITION TO APPLICATION FOR STAY OF

EXECUTION AND PETITION FOR WRIT OF CERTIORARI

ELIZABETH B. MURRILL

Attorney General

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ZACHARY FAIRCLOTH

Principal Deputy

Solicitor General

MORGAN BRUNGARD

KELSEY SMITH

Deputy Solicitors General

CAITLIN HUETTEMANN

Assistant Solicitor General

LOUISIANA DEPARTMENT OF JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

TABLE OF CONTENTS

Complaint for Declaratory and Injunctive Relief

(February 25, 2025) (ECF Doc 1) .................................................................... App.0001

Motion for Preliminary Injunction and Expedited Discovery to Enjoin Defendants

from Executing Jessie Hoffman by Nitrogen Gas Suffocation

(February 26, 2025) (ECF Doc 4) .................................................................... App.0062

Memorandum in Opposition to Plaintiff's Motion for a Preliminary Injunction and

in Support of Defendants' Motion to Dismiss

Relief

(March 4, 2025) (ECF Doc 47) ........................................................................ App.0103

Reply in Support of Motion for Preliminary Injunction

(March 6, 2025) (ECF Doc 75) ......................................................................... App.0412

Defendants’ Proposed Findings of Fact and Conclusions of Law

(March 9, 2025) (ECF Doc 81) ......................................................................... App.0442

Transcript of Hearing on Motion for Preliminary Injunction

(Volume 1 of 2)

(March 7, 2025) ................................................................................................ App.0507

Transcript of Hearing on Motion for Preliminary Injunction

(Volume 2 of 2)

(March 7, 2025) ................................................................................................ App.0701

Ruling

(March 11, 2025) (ECF Doc 89) ...................................................................... App.0919

Order

(March 11, 2025) (ECF Doc 90) ...................................................................... App.0948

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF LOUISIANA

JESSIE HOFFMAN,

Plaintiff,

Civil Action No. 25-169

GARY WESTCOTT, Secretary, Louisiana

Department of Public Safety and Corrections;

DARREL VANNOY, Warden, Louisiana

State Penitentiary; and JOHN DOES,

unknown executioners,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

EXECUTION SET FOR MARCH 18, 2025

NATURE OF THE CASE

This action is brought by Plaintiff Jessie Hoffman pursuant to 42 U.S.C. § 1983

seeking declaratory and injunctive relief for violations and threatened violations of Mr. Hoffman’s

rights under the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Three decades ago, Louisiana made lethal injection the sole means of executing

condemned inmates in the State. Lawmakers at the time explained that the prior method—

electrocution—was a “gruesome,” “ghastly,” and “horrible” way to die. Last year, Louisiana

amended La. Rev. Stat. § 15:569 and § 15:570, shrouding the execution process in secrecy and

expanding the methods of execution to include nitrogen “hypoxia” and the electric chair. The

Secretary of the Department of Public Safety and Corrections (“DPSC”) now has the unfettered

authority to choose between nitrogen gas, lethal injection, or electrocution in carrying out a

sentence of death.

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Less than twenty-six days before Mr. Hoffman’s scheduled execution date on

March 18, 2025, the DPSC notified Mr. Hoffman that he would be executed by nitrogen hypoxia,

that is, by forced nitrogen gassing. Nitrogen gas has been used to kill condemned individuals in

only one state, Alabama, and each of the four times it has been used it has resulted in an

excruciating, prolonged death that was horrifying for both the person being executed and those

who bore witness.

Mr. Hoffman has been deprived of notice regarding the protocol that will be used

to kill him. On Monday, February 10, 2025, Governor Jeffrey Landry announced that the State

had “finalized and implemented an updated [execution] protocol” and would promptly resume

executions.1 The Governor did not release the protocol. Rather, his office released a half-page

“summary” of a new nitrogen gas “protocol.”2 Defendants have rejected Mr. Hoffman’s requests

for the actual protocol.

Defendants are moving forward at warp speed to use Mr. Hoffman as a test case for

an unusual method of execution, never used by this State, which is known to cause a terrifying and

excruciating death. It took Alabama five years of preparations to begin to employ gas as a method

of execution. Each time it has been used, witnesses report that the inmate “gasped, shook and

struggled against his restraints,”3 “rocked his head, shook and pulled against the gurney

Press Release, Louisiana Governor Jeff Landry, Promises Made, Promises Kept: Justice Coming for

Crime Victims (Feb. 10, 2025), https://gov.louisiana.gov/news/4762.

Id.

Marty Roney, Alabama Executes Alan Eugene Miller with Nitrogen Gas, Montgomery Advertiser (Sept.

26, 2024 7:45 PM), https://www.montgomeryadvertiser.com/story/news/crime/2024/09/26/alabamaexecutes-alan-eugene-miller-with-nitrogen-gas/75360739007/.

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restraints,”4 “struggle[d] to breathe,”5 “heav[ed] and retch[ed] inside the mask,”6 and “gasp[ed]

for air.”7

Based on Defendants’ prior execution protocols and previous actions, the current

undisclosed execution protocol does not adequately protect Mr. Hoffman from cruel and unusual

punishment in violation of the Eighth Amendment of the United States Constitution. Specifically,

the execution protocol creates a substantial risk of suffering a lingering or unnecessarily painful

death due to: the manner of execution; the insufficient training, expertise, and supervision of those

involved in the administration of this new method of executions; and the precipitate, arbitrary and

haphazard implementation of the protocol and procedures to be utilized in the implementation of

the execution. Mr. Hoffman additionally raises an as-applied Eighth Amendment challenge to

execution by nitrogen hypoxia, that is, forced nitrogen gassing method.

Defendants have also violated other protections under the United States

Constitution and applicable law:

First, execution of Mr. Hoffman by nitrogen gassing violates the ex post facto

clause of Article I, Section 10, clause 1 of the United States Constitution because the method of

execution has been changed by Defendants to a manner that is more painful or protracted than the

method in effect at the time that Mr. Hoffman was originally sentenced.

Kim Chandler, Alabama Carries out Nation’s Third Nitrogen Gas Execution on a Man for Hitchhiker’s

Killing, Associated Press (Nov. 22, 2024 7:15 AM), https://apnews.com/article/death-penalty-nitrogenexecution-alabama-09450359e223a9d38a5fb24e87fcfb45.

Sarah Clifton, Alabama Executes Demetrius Frazier by Nitrogen Gas for 1991 Murder, Montgomery

Advertiser

(Feb.

2025

8:46

PM),

https://www.montgomeryadvertiser.com/story/news/local/alabama/2025/02/06/alabama-executesdemetrius-frazier-by-nitrogen-gas-for-1991-murder/78282236007/.

Lee Hedgepeth, ‘Never Alone’: The Suffocation of Kenneth Eugene Smith, available at

https://www.treadbylee.com/p/never-alone-the-suffocation-of-kenneth

Id.

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Second, Defendants’ refusal to provide adequate notice of the manner of execution

and/or to provide access to the protocols and procedures to be utilized in the implementation of

execution denies Mr. Hoffman the procedural due process right to notice and opportunity to be

heard regarding the method by which Defendants seek to execute him, as well as equal protection

of the law.

10.

Third, the execution protocol’s secrecy provisions violate Mr. Hoffman’s rights to

counsel and of access to the courts under the Fourteenth, Sixth, and First Amendments.

11.

Fourth, the method of forced nitrogen gassing will substantially burden and prevent

Mr. Hoffman from practicing his Buddhist faith, and specifically Buddhist meditative breathing

techniques, in the execution chamber and during the process in which he is killed by forced

nitrogen gassing. This violates both the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) and the free exercise clause of the First Amendment of the United States Constitution.

12.

Mr. Hoffman seeks declaratory and injunctive relief to prevent Defendants from

executing him through unconstitutional means.

PARTIES

13.

Plaintiff Jessie Hoffman is a citizen of the United States of America, currently

incarcerated under a sentence of death at the Louisiana State Penitentiary, in Angola, Louisiana

(“Angola”), and is under the control and supervision of the DPSC. Mr. Hoffman has completed

the administrative remedy process for this complaint when his ARPs were rejected on June 6,

2024, and July 3, 2024. On February 12, 2025, the Twenty-Second Judicial District for the Parish

of St. Tammany executed a warrant for Mr. Hoffman’s execution. In an abundance of caution,

after his attorneys received notice that the State was seeking an execution warrant, Mr. Hoffman

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filed an emergency ARP on February 11, 2025. On February 13, 2025, Mr. Hoffman was notified

that a response from the Warden’s office would be issued within 40 days of the date of his filing.

14.

Defendant Gary Westcott is Secretary of the DPSC (“DPSC Secretary”) and, thus,

the chief executive officer of the DPSC. He was appointed to this position by the Governor of

Louisiana. In this capacity, Defendant Westcott has control of the DPSC, and is responsible for

protecting the constitutional rights of all persons held in the DPSC’s custody. At all relevant times,

Defendant Westcott was acting under color of law and as the agent, and, as a matter of law, the

official representative of the DPSC. Defendant Westcott is sued in his individual and official

capacities.

15.

Defendant Darrel Vannoy is the Warden of Angola (“Warden”). In this role,

Defendant Vannoy is responsible for carrying out executions at Angola, including but not limited

to making staffing, budget, and administrative decisions related to executions. Defendant Vannoy

is responsible for the “custody, control, care, and treatment of adjudicated people” at Angola.8 At

all relevant times, Defendant Vannoy was acting under color of law and as the agent, and, as a

matter of law, the official representative of Angola. Defendant Vannoy is sued in his individual

and official capacities.

16.

Defendants John Does (“Doe Defendants”) are involved in the implementation of

the DPSC’s execution protocols including transport, administration of drugs, security, preparation

for the execution, and a variety of other tasks. Mr. Hoffman has not been able, through due

diligence, to discover their identities. Defendants Westcott and Vannoy possess information

identifying these individuals as they are responsible for selecting the individuals to carry out these

tasks. Mr. Hoffman anticipates that the identities of these unknown executioners will be revealed

La.

Dep’t

Public

Safety

Corrections,

https://doc.louisiana.gov/location/louisiana-state-penitentiary/.

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in discovery. The Doe Defendants are made defendants in their individual and official capacities.

Upon information and belief, the Doe Defendants are citizens of the United States of America and

residents of Louisiana.

JURISDICTION AND VENUE

17.

This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343

because this action arises and seeks relief under the laws and Constitution of the United States,

specifically, the First, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution, 18. U.SC. § 3599, RLUIPA, and 28 U.S.C. § 2201 (declaratory relief), and 28 U.S.C.

§ 2202 (injunctive relief).

18.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), as the events

complained of have occurred/will occur in this district.

RELEVANT PROCEDURAL BACKGROUND

19.

During the course of a separate lawsuit in state court, the DPSC publicly disclosed

a copy of its execution protocol dated January 7, 2010, the date of Gerald Bordelon’s execution.

However, the DPSC later disclosed that it was no longer able to obtain one of the drugs listed in

this protocol.

20.

Beginning in 2012, counsel for Mr. Hoffman attempted to obtain a copy of the

DPSC’s then-current execution protocol. After the DPSC denied the public records requests, Mr.

Hoffman submitted ARPs asserting that he had no notice of how Defendants would seek to execute

him and requesting a copy of the current protocol. The DPSC rejected these requests.

21.

In December 2012, Mr. Hoffman brought an action in the United States District

Court for the Middle District of Louisiana pursuant to 42 U.S.C. § 1983 for violations and

threatened violations of his rights under the First, Sixth, Eighth and Fourteenth Amendments to

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the United States Constitution. See Hoffman v. Jindal, et al., No. 3:12-cv-00796-SDD-EWD

(M.D. La.) (“Related Case”). Other parties later intervened in that action as plaintiffs. Id., Rec.

Docs. 10 (Sepulvado), 120 (Code), 201 (Wessinger, Irish), 210 (Blank), 222 (Tyler), 252 (Reeves,

Bell, Tart, Broadway).9

22.

At the time of filing of the Related Case, Louisiana law provided that “[e]very

sentence of death executed on or after September 15, 1991, shall be by lethal injection; that is, by

the intravenous injection of a substance or substances in a lethal quantity into the body of a person

convicted until such person is dead.” La. Rev. Stat. § 15:569(B) (1991). Based on the execution

protocol ultimately disclosed by the State, Mr. Hoffman argued, among other things, that (a) he

was at a substantial risk of suffering a lingering or unnecessarily painful death due to the nature of

the lethal injection drugs to be used in the execution, and (b) the execution protocol did not

adequately protect him from cruel and unusual punishment due to the insufficient training,

expertise, and supervision of those involved in the administration of the lethal drug.

23.

In January 2013, Christopher Sepulvado, who was under warrant for execution,

intervened in the Related Case. At the hearing on Mr. Sepulvado’s motion for preliminary

injunction, the Court ordered the DPSC to disclose its execution protocol, but the attorneys for the

DPSC had only a Wikipedia printout of its entry for the drug pentobarbital.

Noting the

“intransigence of the State Defendants,” the Court found that “[i]t is axiomatic that . . . an inmate

who is to be executed cannot challenge a protocol as violative of the 8th Amendment until he

knows what that protocol contains.” Rec. Doc. 28.

24.

Pursuant to orders issued by the Court in the Related Case, the DPSC ultimately

disclosed several versions of its execution protocol, revealing that the protocol was in a state of

“Rec. Doc.” refers to docket entries in the Related Case.

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constant flux during the time when Mr. Sepulvado was set to be executed in 2013 and 2014.

See, e.g., Rec. Doc. 137, at 4-5; 169-1, at 4-5.

25.

On August 12, 2021, Defendants moved to dismiss the Related Case contending

that the DPSC “ha[d] no ability to obtain the lethal injection drugs authorized by [the DPSC’s]

current protocol nor any other potential lethal injection drugs in the foreseeable future.” Rec. Doc.

263-1, at 4.

26.

On March 31, 2022, the Court granted Defendants’ motion to dismiss without

prejudice. Rec. Doc. 312, at 22-23. In so ruling, the Court found that “[g]iven the Defendants’

virtual inability to obtain lethal injection drugs . . . . Plaintiffs cannot demonstrate a reasonable

expectation that Defendants will resume executing prisoners without significant and substantial

changes to the execution protocol or the law.” Id. at 21.

27.

Because of the unavailability of lethal injection drugs, the Court determined that

“Defendants are no longer engaging in the behavior the Plaintiffs have deemed unconstitutional in

their lawsuit allegations,” and, “[t]here being no live controversy,” the Court “lacks subject-matter

jurisdiction.”

Of particular relevance here, the Court also stated that, “[i]ndeed, if a live

controversy re-emerges [through legislation or revisions to the execution protocol], Plaintiffs may

employ the same procedural mechanisms they have previously used to seek the relief they desire.”

Id. at 21.

28.

On March 5, 2024, at the urging of now Governor Landry, the Louisiana

Legislature passed Act 5 of the Second Extraordinary Session of 2024, amending La. Rev. Stat.

§ 15:569-70 to include two methods of execution in addition to lethal injection—nitrogen gas and

electrocution—effective July 1, 2024. La. Rev. Stat. § 15:569 (2024).

29.

By e-mail dated May 1, 2024, Mr. Hoffman’s counsel requested certain information

from the DPSC, including: (a) whether the DPSC has obtained or attempted to obtain or compound

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any lethal injection drugs; (b) whether the DPSC remains unable to procure any drugs that could

be used for lethal injection; (c) whether the DPSC has the necessary materials and equipment for

an execution by electrocution or nitrogen hypoxia; and (d) whether Department Regulation No. C03-001 (the State’s execution protocol) has been modified with respect to lethal injection, nitrogen

hypoxia or electrocution.

The DPSC, however, declined to answer most of those queries,

responding only that it has not procured any drugs intended to be used for lethal injection and has

not made any changes to its lethal injection protocol.

30.

On November 27, 2024, the DPSC responded to a public records request submitted

by a reporter, representing that the DPSC had not changed its protocol, and that the DPSC did not

possess drugs or any supplies for use in executions.

31.

On February 10, 2025, Governor Landry announced that the DPSC had “finalized

and implemented an updated protocol that allows for the sentences of those on Death Row to be

carried out.” His press release included a link to a “brief summary” of a nitrogen gas protocol that

“builds upon” Alabama’s method.

32.

That same day, the St. Tammany Parish District Attorney filed a request for a

warrant of execution in Mr. Hoffman’s case. Mr. Hoffman filed an Emergency Request for

Administrative Remedy on February 11, 2025, requesting, inter alia, a copy of the DPSC’s

execution protocol. The prison informed Mr. Hoffman that he would receive a response within 40

days. The state court signed the warrant on February 12, 2025, setting Mr. Hoffman’s execution

for March 18, 2025.

33.

On February 20, 2025, eight days after the issuance of Mr. Hoffman’s warrant, the

DPSC served Mr. Hoffman with notice of his execution warrant and that the method of execution

would be nitrogen hypoxia. Mr. Hoffman’s counsel reached out to Defendants’ counsel to request

a copy of the protocol on February 14, 2025. On February 18, 2025, Defendants’ counsel

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responded that the request: “is being treated as a public records request pursuant to La. R.S. 44:1,

et seq. Please be advised that the execution protocol is exempt from disclosure pursuant to La.

R.S. 44:3 and La. R.S. 15:570, which is incorporated by reference in La. R.S. 44:4.1(B)(8).” No

protocol has been disclosed to either Mr. Hoffman or his counsel.

FACTUAL BACKGROUND

Changes to Louisiana’s Execution Methods and Procedures

34.

For the last three decades, since 1991, lethal injection was the only authorized

method of execution in Louisiana. In March 2024, the Louisiana state legislature amended La.

Rev. Stat. § 15:569 and § 15:570 and expanded the manner in which the State can execute

condemned inmates by adding nitrogen hypoxia and electrocution. See Act 5/2024. The DPSC

Secretary now has the unfettered authority to choose between nitrogen hypoxia, lethal injection,

or electrocution in carrying out a sentence of death.

35.

Specifically, La. Rev. Stat. § 15:569 now provides:

(A)

Every sentence of death imposed in this state shall be

executed at the Louisiana State Penitentiary at Angola. Every

execution shall be made in a room entirely cut off from view of all

except those permitted by law to be in the room. At the discretion

of the secretary of the Department of Public Safety and Corrections

and with no preference to the method of execution, every sentence

of death shall be by one of the following methods:

(1)

Intravenous injection of a substance or substances in

a lethal quantity into the body.

(2)

Nitrogen hypoxia.

(3)

Electrocution, causing to pass through the body of

the person convicted a current of electricity of sufficient

intensity to cause death, and the application and continuance

of such current through the body of the person convicted

until such person is dead.

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(B)

Upon receipt of the warrant commanding the secretary to

cause the execution of the person condemned as provided by law,

the secretary shall, within seven days, provide a written notice to the

condemned person of the manner of execution.

La. Rev. Stat. § 15:569(A)-(B) (2024).

36.

La. Rev. Stat. § 15:570 also provides for “the absolute confidentiality” of persons

or entities involved in the execution:

(F)

It is the intent of the legislature that the provisions of this

Subsection shall be construed to ensure the absolute confidentiality

of the identifying information of any person, business, organization,

or other entity directly or indirectly involved in the execution of a

death sentence within this state. This confidentiality provision shall

prevail over any conflicting provision in state law related to public

disclosure.

(1)

Except as provided in Subsection F of this Section,

the identity of any person who participates in or performs

ancillary functions in the execution process, including a

person or business that delivers, dispenses, distributes,

supplies, manufactures, or compounds the drugs, equivalent

drug products, pharmacy generated drugs, device drugs,

medical supplies, medical equipment, or other supplies or

materials intended for use by the Department of Public

Safety and Corrections in the administration of an execution

shall be confidential and shall not be disclosed.

La. Rev. Stat. § 15:570(G) (2024).

37.

The amendments to La. Rev. Stat. § 15:569 and § 15:570 went into effect on July

1, 2024, applying to all executions regardless of the date of offense or imposition of sentence.

38.

Former Protocols

The DPSC’s lethal injection protocol has been altered many times since it was first

instituted in 1991. On multiple occasions, those alterations were announced mere days or hours

before an execution.

39.

For example, on January 7, 2010, the DPSC promulgated a new protocol. The same

day, Gerald Bordelon was executed using the new protocol.

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Beginning in April 2012, counsel for Mr. Hoffman made repeated requests for a

copy of the then-current protocol, through public records requests and administrative remedy

procedures. The DPSC denied those requests. Mr. Hoffman therefore filed the Related Case on

December 20, 2012, asserting multiple constitutional violations including a violation of his due

process rights to notice and an opportunity to be heard regarding the method by which he was to

be executed.

41.

Mr. Sepulvado was given an execution date of February 13, 2013. Mr. Sepulvado

filed a motion for a stay of execution and in a hearing on that motion, the DPSC announced for the

first time that it planned to use the drug pentobarbital in Mr. Sepulvado’s execution. The Court

granted Mr. Sepulvado’s motion for a stay of execution on February 7, 2013.

42.

In June 2013, in the Related Case, the DPSC disclosed in discovery a new lethal

injection protocol which substituted a single dose of pentobarbital for the three-drug formula

consisting of an ultra-short-acting barbiturate, a paralytic, and concentrated potassium to stop the

heart.

43.

On September 1, 2013, the DPSC’s supply of pentobarbital expired.

44.

In December 2013, an execution warrant was signed for Mr. Sepulvado, ordering

the DPSC to execute him on February 5, 2014.

45.

On December 19, 2013, the Louisiana Board of Pharmacy disclosed that the DPSC

did not have any unexpired stock of pentobarbital.

46.

Instead of the drugs in the 2013 protocol, Defendants purchased midazolam from

Morris & Dickson on July 25, 2013.

47.

At 4:51 p.m. on January 27, 2014, 9 days before the scheduled execution of Mr.

Sepulvado, the Ohio Department of Corrections sent a fax to the DPSC, attaching a copy of Ohio’s

lethal injection protocol. At that time, the Ohio protocol called for lethal injection options to be

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chosen at the discretion of the warden, including a single dose of 5g pentobarbital, in manufactured

or compounded form, “under whatever name it may be available,” or a combination of 10 mg

midazolam and 40mg hydromorphone—under whatever names these drugs may be sold,

compounded or manufactured, with additional back-up doses of 60mg hydromorphone. This

protocol also allowed for the drugs to be injected either intravenously or intramuscularly.

48.

Less than two hours after receiving Ohio’s protocol, at 6:32 p.m. on January 27,

2014, the DPSC issued a new drug protocol that was nearly identical to Ohio’s protocol. The

DPSC’s protocol included an array of lethal drug options to be chosen at the discretion of the

warden and/or pharmacist, including a single dose of 5g pentobarbital in manufactured or

compounded form, or a combination of 10mg midazolam and 40mg hydromorphone in

manufactured or compounded form. This protocol also allowed for the drugs to be injected either

intravenously or intramuscularly.

49.

The next day, on January 28, 2014, the DPSC purchased 20 vials of 50mg/5ml

(10mg/ml) hydromorphone, from the Lake Charles Memorial Hospital.

50.

On February 1, 2014, four days before the scheduled execution of Mr. Sepulvado,

Defendants disclosed that the DPSC had been unable to procure any pentobarbital and would be

using “Hydromorphone HC 150mg/5ml vial” and “Midazolam 2mg/2ml.”

51.

This disclosure did not comport with the invoices for the DPSC’s purchase of

hydromorphone, which instead showed a purchase of 20 vials of 50mg/5ml (10mg/ml) of

hydromorphone.

52.

On February 3, 2014, Defendants contacted counsel for plaintiffs in the Related

Case and requested a 90-day temporary restraining order and stay of execution. The Court granted

this request, which was extended and remained in effect until the Court lifted the stay on June 30,

2021.

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In the Related Case, the Court further ordered Defendants to provide a final

execution protocol by March 14, 2014.

54.

On March 13, 2014, Defendants provided a copy of the “revised lethal injection

protocol,” including a seven-page document entitled “Department Regulation No. C-03-001”

(“2014 Execution Protocol”) to plaintiffs in the Related Case. This is the last-disclosed execution

protocol.

55.

Pursuant to an informal agreement between counsel for Defendants and counsel for

Mr. Hoffman and other plaintiffs in the Related Case, counsel for Defendants would provide

quarterly updates as to (i) whether the DPSC had changed its execution protocol, and if so provide

a copy of any new protocol, and (ii) whether the DPSC had in its possession drugs intended for

use in executions. Until July 1, 2024, the DPSC represented that no changes had been made and

no drugs had been obtained. However, after July 1, 2024, the DPSC began to take the position

with counsel for Mr. Hoffman that this information was exempted from the Public Records Act.

Under the 2014 Execution Protocol, attorneys are allowed to remain with the condemned inmate

only “until the visit is terminated at the discretion of the Warden.” The condemned inmate is given

no right to an attorney present throughout his execution.

56.

The 2014 Execution Protocol is the most recent DPSC execution protocol disclosed

to Mr. Hoffman.10 The 2014 Execution Protocol describes only the DPSC’s procedure for

executions by lethal injection. Upon information and belief, the 2014 Execution Protocol has

never been revoked.

57.

The 2014 Execution Protocol provides the DPSC with the option to use either (a) a

one-drug protocol comprising of an intravenous dose of pentobarbital (“Pentobarbital Protocol”),

The

2014

Execution

Protocol

available

cdn.org/production/documents/2014.03.14.LA.protocol.pdf?dm=1683576299.

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or (b) a two-drug protocol using an intravenous dose of a mixture of midazolam and

hydromorphone (“Midazolam-Hydromorphone Protocol”).

58.

Pentobarbital Protocol: Under the 2014 Pentobarbital Protocol, the condemned

inmate is administered a total of 5 grams of pentobarbital “divided into the two syringes,” three

syringes containing “25mL of saline flush,” and “[f]our additional syringes” containing an

“additional 10 grams of Pentobarbital . . . to be used if the primary dose of five grams proves to be

insufficient for the procedure.”11

59.

Midazolam-Hydromorphone

Protocol.

Under

the

2014

Midazolam-

Hydromorphone Protocol, the condemned inmate is administered 10 mg of midazolam and 40 mg

of hydromorphone “drawn into or mixed in a single syringe.”12 The protocol further provides for

two back-up syringes, one filled with a mix of 10 mg of midazolam and 40 mg of hydromorphone,

and the third containing 60 mg of hydromorphone.13

60.

Methods Authorized by Law at the Time of Mr. Hoffman’s Sentencing

At the time the offenses occurred that subjected Mr. Hoffman to a death sentence,

and at the time that Mr. Hoffman was sentenced to death, La. Rev. Stat. § 15:569 provided that

“[e]very sentence of death executed on or after September 15, 1991, shall be by lethal injection;

that is, by the intravenous injection of a substance or substances in a lethal quantity into the body

of a person convicted until such person is dead.” La. Rev. Stat. § 15:569 (1991).

61.

Mr. Hoffman was sentenced by a jury to death by lethal injection.

62.

Lethal injection was the only statutorily authorized method of execution for over

thirty years, from 1991 to 2024.

2014 Execution Protocol, Attachment E, at 1.

Id.

Id. at 1–2.

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The amendments to La. Rev. Stat. § 15:569 and § 15:570 went into effect on July

1, 2024, applying to all executions regardless of the date of offense or imposition of sentence.

Louisiana Refuses to Disclose Crucial Information

64.

Louisiana Refuses to Disclose the Method of Execution Until the Last

Possible Moment

As set forth above, in 2024, the Louisiana legislature amended La. Rev. Stat.

§ 15:569 and expanded the manner in which the State can execute condemned inmates by adding

electrocution and nitrogen gas.

65.

The 2024 amendments give the DPSC Secretary the discretion and unfettered

authority to choose between lethal injection, nitrogen gas, or electrocution in carrying out a

sentence of death. The statute does not set any guidelines, nor does it require any stated reason for

the DPSC Secretary’s choice for a given individual.

66.

Nor does the statute require the DPSC Secretary to make known which of the three

methods are currently available to the State. That is, the DPSC Secretary is not required to inform

the public of which methods it has the capacity to carry out. And the DPSC Secretary has indeed

refused to disclose which methods are currently practicable.

67.

On February 10, 2025, Governor Landry announced that the DPSC had finalized a

protocol to carry out executions by nitrogen hypoxia and would resume executions. Rec. Doc.

335-2. The Governor did not, however, announce that the nitrogen hypoxia protocol replaced the

2014 lethal injection protocol. Nor did the Governor indicate whether the DPSC has developed or

plans to develop a protocol for electrocution.

68.

On February 20, 2025—eight days after the issuance of the warrant and just 26 days

before Mr. Hoffman’s execution date—the DPSC served Mr. Hoffman with notice that the method

of execution would be nitrogen gas.

APP0016

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Louisiana Refuses to Disclose the Current Execution Protocol

Mr. Hoffman has been denied notice of any actual protocol by which Defendants

will use to kill him.

70.

As set forth above, Governor Landry announced on February 10, 2025, that the

DPSC issued an updated protocol for nitrogen hypoxia. Governor Landry’s announcement was

accompanied by a three-paragraph document titled “Brief Summary of Nitrogen Hypoxia

Execution Protocol,” which states:

Execution by nitrogen hypoxia is accomplished by placing a mask

on the inmate’s face and replacing oxygen with nitrogen gas.

The inmate will be allowed access to a spiritual advisor. Designated

victim relationship witnesses and designated media representatives

will be authorized to witness the execution in accordance with the

protocol and Louisiana law.

The Louisiana State Penitentiary personnel will conduct checks on

all aspects of the nitrogen system and other apparatus utilized in the

protocol prior to the commencement of the execution. Once

escorted to the death chamber, medical monitors will be attached to

the inmate to evaluate the relevant vital signs. The inmate will be

offered the opportunity to make a final statement, and then, the

specialized mask for administration of the nitrogen will be fitted

onto the inmate. At the designated time, pure nitrogen gas will be

administered to the inmate through the mask for a sufficient time

period necessary to cause the death of the inmate. In accordance

with the protocol, the coroner will then be asked to confirm the

death. The Warden of Louisiana State Penitentiary will then make

a statement confirming that the execution has been completed in

accordance with the laws of the State of Louisiana.14

71.

The “updated” protocol itself has not been publicly released and has not been

provided to Mr. Hoffman or his counsel despite requests for it. Thus, the 2014 Execution Protocol

is the most recent execution protocol disclosed to Mr. Hoffman.

Press Release, Office of Governor Jeff Landry, Brief Summary of Nitrogen Hypoxia Execution Protocol

(Feb. 10, 2025), https://gov.louisiana.gov/assets/2025-Extras/Summaries/Summary-of-Protocol-Info.pdf.

APP0017

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Under La. Rev. Stat. § 15:568, the DPSC Secretary is responsible for executing

offenders in conformity with the death warrant issued in each case. Given that the DPSC has not

made a revised execution protocol available to Mr. Hoffman or the public, Mr. Hoffman reserves

the right to amend this complaint if the DPSC produces a revised execution protocol.

73.

Without sufficient notice of and/or access to the protocols and procedures to be

utilized in the implementation of the execution, Mr. Hoffman cannot adequately evaluate and

challenge the protocols and procedures by which Defendants seek to execute him.

Death by Nitrogen Gas

74.

Nitrogen hypoxia is a method of execution that forces nitrogen gas inhalation,

depriving the condemned inmate of oxygen and causing asphyxiation.

75.

The DPSC has never executed or attempted to execute a condemned inmate by

nitrogen gas. Nor has the federal government. The only state that has carried out an execution by

nitrogen gas is Alabama.

76.

In March 2018, Alabama enacted legislation authorizing the use of nitrogen gas for

executions. The statute became effective on June 1, 2018.

77.

The Alabama Department of Corrections (“ADOC”) released a protocol for gas

executions until August 25, 2023. Before it released that protocol, the ADOC performed testing

of the nitrogen delivery system and training on its use.

78.

In January 2024, the ADOC executed Kenneth Smith by nitrogen gas. This

involved strapping Mr. Smith to a gurney, fitting him with a respirator mask connected to nitrogen

gas, and then administering the nitrogen gas.15

See Ala. Dep’t of Corrections Execution Procedures (Aug. 2023), at 15-17, https://dpiccdn.org/production/documents/Al_Lethal_Gas_Execution_Protocol_2023_08.pdf?dm=1693938490.

APP0018

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After the ADOC started the flow of nitrogen gas, Mr. Smith started “to convulse

and shake vigorously for about four minutes. . . . It was another two to three minutes before he

appeared to lose consciousness, all while gasping for air to the extent that the gurney shook several

times.”16

80.

Media witness Lee Hedgepeth recounted that Mr. Smith’s head moved back and

forth violently in the minutes after the execution began. Having witnessed four other executions,

Mr. Hedgepeth stated that he had “never seen such a violent reaction to an execution.”17

81.

Mr. Smith’s spiritual advisor, Reverend Jeff Hood, was also present in the

execution chamber and described the scene: “[w]e didn’t see someone go unconscious into two or

three seconds. We didn’t see somebody go unconscious in 30 seconds. What we saw was minutes

of someone struggling for his life. We saw minutes of someone heaving back and forth. We saw

spit. We saw all sorts of stuff develop from his mask.”18

82.

The victim’s son, Mike Sennett, stated that he was told by prison personnel that Mr.

Smith would “take two or three breaths and he’d be out and gone.”19 However, he described:

“That ain’t what happened. After about two or three breaths, that’s when the struggling started.

Marty Roney, Nitrogen Gas Execution: Kenneth Smith Convulses for Four Minutes in Alabama Death

Chamber,

Montgomery

Advertiser

(Jan.

25,

2024),

www.montgomeryadvertiser.com/

story/news/local/alabama/2024/01/25/four-minutes-of-convulsions-kenneth-smith-executed-withnitrogen-gas/72358038007/.

Nicholas Bogel-Burroughs and Abbie VanSickle, Alabama Carries Out First U.S. Execution by Nitrogen,

N.Y. Times (Jan. 25, 2024), www.nytimes.com/2024/01/25/us/alabama-nitrogen-execution-kennethsmith.html.

Ralph Chapoco, Kenneth Eugene Smith Executed by Nitrogen Gas for 1988 Murder-for-Hire Scheme,

Alabama Reflector (Jan. 25, 2024), https://alabamareflector.com/2024/01/25/kenneth-eugene-smithexecuted-by-nitrogen-gas-for-1988-murder-for-hire-scheme/.

Nicholas Bogel-Burroughs, A Select Few Witnessed Alabama’s Nitrogen Execution. This Is What They

Saw, N.Y. Times (Feb. 1, 2024), www.nytimes.com/2024/02/01/us/alabama-nitrogen-execution-kennethsmith-witnesses.html.

APP0019

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Other people kept saying he was trying to raise himself up. . . . With all that struggling and jerking

and trying to get off that table, more or less, it’s just something I don’t ever want to see again.”20

83.

Twenty-seven minutes after the ADOC started the flow of gas, Mr. Smith was

declared dead.21

84.

The three other nitrogen gas executions carried out by the ADOC were similar. On

September 26, 2024, ADOC executed Alan Eugene Miller by nitrogen gas. According to reports,

Mr. Miller “shook and trembled on a gurney for about two minutes, with his body at time pulling

against restraints. . . . The shaking and trembling was followed by about six minutes of periodic

gulping breaths before he became still.”22

85.

On November 21, 2024, the ADOC executed Carey Dale Grayson by nitrogen gas.

During the approximately six minutes it took for Mr. Grayson to lose consciousness, he “tightly

clenched his hands, took deep gasps, shook his head vigorously and pulled against his restraints.”23

86.

And, on February 6, 2025, the ADOC executed Demetrius Frazier. The execution

took approximately 20 minutes. During that time, Mr. Frazier “started waving his hands in circles

toward his body.”24 Then, he “clenched his face and his nostrils flared, while his hands quivered.

His legs slightly lifted up off the gurney and he gasped.” After that, Mr. Frazier “had sporadic

gasping and shallow breathing.”25

Id.

Roney, supra note 16.

Michelle Watson & Jason Hanna, Alabama Has Executed Alan Eugene Miller, the Second Inmate Known

to Die by Nitrogen Gas, CNN (Sept. 26, 2024), www.cnn.com/2024/09/26/us/alan-eugene-miller-alabamaexecution/index.html.

Marty Roney et al., Carey Dale Grayson Executed in Alabama in Hiker’s Murder; 3rd Nitrogen Gas

Execution in US, USA Today (Nov. 21, 2024), www.usatoday.com/story/news/nation/2024/11/21/careydale-grayson-execution-alabama-nitrogen-gas/76489211007/.

WTVM13, ‘Detroit Strong’: Alabama Carries Out Execution of Inmate in Michigan’s Custody,

https://www.wvtm13.com/article/alabama-inmate-execution-michigan-lawsuit-1738878056/63692646.

Id.

APP0020

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The DPSC has not disclosed or made public any execution protocol for nitrogen

gas. Upon information and belief, the DPSC intends to employ a procedure similar to the ADOC’s

in carrying out this form of execution.

88.

As confirmed by the Smith, Miller, Grayson, and Frazier executions, nitrogen gas

creates terror and extreme pain and suffering.

89.

Execution by nitrogen gas deprives the condemned inmate of oxygen, which can

cause the feeling of suffocation, panic, significant pain and suffering. For example, to test the

accuracy of pulse oximeters, researchers have conducted controlled laboratory desaturation studies

using healthy volunteers.26 In these studies, at blood oxygen saturation levels of 60% to 100%,

“symptoms range from minimal or mild shortness of breath and visual changes to a full-blown

feeling of suffocation”; at blood oxygen saturations of less than 60%, the “majority of people, not

yet unconscious, report significant distress and shortness of breath.”27 Because of this response,

“it is [now] unethical to even study the effects of very low oxygen levels (<60%) on humans. . . .

[Put differently, researchers] have stopped using desaturations below 60% due to concerns for

study participant safety and comfort.”28

90.

The deprivation of oxygen can also cause nausea. Because the condemned inmate

is strapped to a gurney in the supine position, vomiting can cause the condemned inmate to choke

to death.

Philip E. Bickler and Michael S. Lipnick, Evidence Against Use of Nitrogen for the Death Penalty, J.

Am. Med. Ass’n (May 29, 2024), https://jamanetwork.com/journals/jama/fullarticle/2819295.

Id.

APP0021

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Moreover, if the respirator mask is not properly sealed, some oxygen can enter the

mask and therefore prolong the time to reach unconsciousness and lead the condemned inmate to

enter a persistent vegetative state, have a stroke, or endure the painful sensation of suffocation.29

92.

To avoid suffering to animals, for example, the American Veterinary Medical

Association (“AVMA”) has advised the use of nitrogen gas is “unacceptable” as euthanasia for

most mammals, because it “create[s] an anoxic environment that is distressing for some species

and aversive to [others].”30 Louisiana has explicitly codified in law that “[e]uthanasia methods

and procedures must conform with recommendations outlined in the report of the American

Veterinary Medical Association on Euthanasia,” and has specifically outlawed gassing as a method

of euthanasia for cats and dogs. La. Rev. Stat. § 3:2465(C)(1)-(2).

93.

The United Nations Human Rights Office, too, has admonished the use of nitrogen

gas and the “grave suffering”31 it may cause as likely “amount[ing] to torture under international

law.”32

94.

Louisiana’s Twenty-Fourth Judicial District Court considered Jerman Neveaux’s

challenge to nitrogen gas and electrocution as less humane methods of execution than lethal

injection. In support, Mr. Neveaux presented expert affidavits opining that nitrogen gas can cause

See Russel D. Ogden et al., Assisted Suicide by Oxygen Deprivation with Helium at a Swiss Right-ToDie Organization, 36 J. Med. Ethics 174, 174 (2010) (“Oxygen deprivation with a face mask is not

acceptable because leaks are difficult to control and it may not eliminate rebreathing. These factors will

extend time to unconsciousness and time to death.”).

AVMA Guidelines for the Euthanasia of Animals, at 28 (2020 ed.), www.avma.org/sites/

default/files/2020-02/Guidelines-on-Euthanasia-2020.pdf. These guidelines are followed by major research

universities, including Louisiana State University and Louisiana State University Health Sciences Center.

See, e.g., LSU Health, New Orleans, Institutional Animal Care and Use Committee,

www.lsuhsc.edu/administration/academic/ors/iacuc/default.aspx.

U.N. Human Rights, Office of the High Commissioner, United States: UN Experts Alarmed at Prospect

of First-Ever Untested Execution by Nitrogen Hypoxia in Alabama (Jan. 3, 2024), www.ohchr.org/en/pressreleases/2024/01/united-states-un-experts-alarmed-prospect-first-ever-untested-execution.

First U.S. Nitrogen-Gas May Constitute Torture—UN Rights Office, reuters.com (Jan. 16, 2024),

www.reuters.com/world/us/first-us-nitrogen-gas-execution-may-constitute-torture-un-rights-office-202401-16/.

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the condemned inmate to “enter[] a persistent vegetative state, experienc[e] [a] stroke, or

experienc[e] painful suffocation instead of dying,” as well as “distress, panic, pain, and suffocation

by vomit.”33

95.

Judge Darensburg agreed and granted Mr. Neveaux’s motion to declare La. Rev.

Stat. § 15:569 unconstitutional.34

Maladministration

96.

Louisiana’s Execution Procedure Lacks Oversight and Safeguards

Upon information and belief, Defendants’ undisclosed execution protocol has not

been examined by a licensed medical professional to ensure that there are adequate safeguards to

protect the condemned inmates’ constitutional rights against torture, pain, and suffering.

97.

Upon information and belief, the undisclosed execution protocol was promulgated

without any medical research or review to determine that a prisoner would not suffer cruelly

superadded pain or a lingering death.

98.

Upon information and belief, Defendants have made core deviations from the

written execution protocols in the past.

99.

For example, in the days following up to Mr. Sepulvado’s scheduled February 5,

2014 execution date, Defendants materially deviated from their written protocol. See supra ¶¶ 41,

46-51.

100.

Upon information and belief, at 30 days prior to Mr. Sepulvado’s scheduled

execution, Defendants did not perform the first five “actions” listed on the checklist dated “1-1013,” which were to (1) receive the warrant of execution from the secretary; (2) serve the offender

State v. Jerman Neveaux, No. 16-4029 (24th J.D.C.) (Apr. 19, 2024 ruling on Defense Motion to Declare

La. R.S. 15:569(A)(2) & (3) Unconstitutional).

Id. (“Motion to Declare La RS 15:569(A)(2) & (3) Unconstitutional – GRANTED by the Court, State

objection for the record.”).

APP0023

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with the execution order; (3) return the signed warrant to the secretary; (4) notify execution team

and executive staff; (5) establish staffing for execution day; and (6) establish staff crisis support

team for debriefing of officers post execution.

101.

Upon information and belief, prior to Mr. Sepulvado’s scheduled execution,

Defendants did not perform the first two items listed on its (undated) “LSP Pharmacist Checklist,”

an integral part of the protocol, specifically, to maintain at “all times . . . . the following stock

ensuring chemicals have not exceeded expiration date: 15 grams pentobarbital 50mg/ml solution;”

and “30 days prior to execution . . . [v]erify execution drugs are in stock as above and expiration

dates will not be exceeded prior to execution date.”

102.

Based on Defendants’ past practices, Defendants will likely deviate from their

written protocol. The undisclosed execution protocol does not contain any mechanism to prevent

Defendants from making such deviations.

103.

Even if Defendants fully adhere to the undisclosed execution protocol, the

execution will proceed without adequate safeguards.

104.

The lack of safeguards is further shielded from public scrutiny by the secrecy

provisions of La. Rev. Stat. § 15:570(G), which provide for “the absolute confidentiality of the

identifying information of any person, business, organization, or other entity directly or indirectly

involved in the execution of a death sentence within this state.”

105.

Upon information and belief, the undisclosed execution protocol does not consider

the condemned inmate’s physical size or medical conditions in determining the appropriate mask

and other implements, as well as the method itself.

106.

The Individuals Tasked with Carrying Out the Execution Have Not

Received Adequate Training

Defendants have not been properly trained to carry out an execution.

APP0024

Case 3:25-cv-00169-SDD-SDJ

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Upon information and belief, the members of the current execution team (the Doe

Defendants) have not received adequate training, which increases the likelihood that errors will be

made in carrying out the execution.

108.

Upon information and belief, none of the Doe Defendants are medical professionals

or have any medical training. Nor will there be any medical supervision of the Doe Defendants

during the execution.

109.

Upon information and belief, the Doe Defendants are not qualified to administer

lethal gas, and are deliberately indifferent to the risks that their failure to train and supervise the

Doe Defendants will have on Mr. Hoffman’s constitutional rights.

110.

Indeed, the previous execution protocol—relating to executions by lethal

injection—did not include any requirement that the Doe Defendants become familiar with the

drugs they are administering in order to understand their properties, the dangers associated with

those drugs, and/or any other relevant medical information. It did not standardize the timing for

the administration of the drugs, increasing the likelihood of errors in their delivery. Upon

information and belief, the Doe Defendants will not engage in adequate practice sessions prior to

Mr. Hoffman’s execution.

111.

In past executions, Defendants did not adhere to the terms of the execution

protocols with regard to practice.

112.

For example, under the 2013 execution protocol, once an execution date was set,

the members of the execution team were required to train at least weekly. Mr. Sepulvado’s

execution date was scheduled for February 5, 2014. According to the execution log, the execution

team only practiced twice prior to Mr. Sepulvado’s execution date. Defendants also materially

changed the protocol nine days before the February 5, 2014 execution date, leaving insufficient

time to practice the new protocol.

APP0025

Case 3:25-cv-00169-SDD-SDJ

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On February 10, 2025, Governor Landry released a half-page “summary” of an

unreleased nitrogen gas protocol. Within 36 hours, a state court judge had signed an execution

warrant for Mr. Hoffman. This gives Defendants just over one month to ensure that the gas

protocol can be administered effectively and safely by the Doe Defendants, and that sufficient

practice sessions can take place.

114.

Upon information and belief, staff members at the DPSC, including the Warden,

did not know about the new nitrogen gas “protocol” until Governor Landry’s public announcement

on February 10, 2025.

115.

Upon information and belief, Defendants have not conducted sufficient training and

practice for the execution of Mr. Hoffman that is scheduled to take place on March 18, 2025.

116.

Upon information and belief, any “execution practice” sessions held by Defendants

are insufficient to adequately train Defendants to be able to undertake an execution in a

constitutional manner.

117.

The risk of maladministration due to lack of training is substantial.

Alternative Means of Execution are Feasible, Readily Available, and Would

Significantly Reduce Mr. Hoffman’s Risk of Harm

118.

Execution by Firing Squad

Execution by use of a firing squad is a known, available, and feasible alternative

method that would reduce pain and suffering.

119.

Other states and the United States military have carried out numerous executions

by firing squad.

APP0026

Case 3:25-cv-00169-SDD-SDJ

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Oklahoma, Utah and Mississippi also currently authorize the use of a firing squad

among their statutory methods of execution.35 Utah has executed three inmates by firing squad

since 1976—most recently on July 18, 2010.36

121.

Protocols for execution by firing squad are known and available. Utah’s technical

manual, which specifies the state’s execution protocol in great detail, is publicly accessible.37 For

example, in Utah’s most recent execution by firing squad, the inmate was seated in a chair set up

between stacked sandbags to prevent the bullets from ricocheting. A target was pinned over the

inmate’s heart. Five shooters set up at a distance of 21 feet from the inmate, armed with .30-caliber

Winchester rifles. One rifle was loaded with blanks so that no one knew which officers killed the

inmate. The inmate was pronounced dead two minutes after he was shot.38

122.

Upon information and belief, Defendants could easily identify qualified personnel

to carry out an execution by firing squad. Furthermore, the State already has a sufficient stockpile

of both the weapons and ammunition necessary to carry out an execution. The State has all the

personnel and implements necessary to carry out executions by firing squad.

123.

Execution by firing squad is both swift and virtually painless.

If performed

properly—a simple matter for trained marksmen—the use of a firing squad will eliminate the

substantial risk of severe pain that Defendants’ current execution protocol presents to Mr.

Hoffman.

See Okla. Stat. Ann. tit. 22 § 1014; Utah Code Ann. § 77-18-5.5; Miss. Code Ann. § 99-19-51; see also

2019 S.C. S.B. 176, 123rd Session General Assembly – 2nd Regular Session (2020) (South Carolina Senate

Bill to revive firing squad as method of execution).

See Kirk Johnson, Double Murderer Executed by Firing Squad in Utah, N.Y. Times, June 19, 2010,

https://www.nytimes.com/2010/06/19/us/19death.html.

See

Technical

Manual

Utah

Department

Corrections,

https://cdn.muckrock.com/foia_files/2017/03/22/3-13-17_MR34278_RES.pdf; see also United States

Army Firing Squad Protocol (1959).

Brady McCombs, Utah Brings Back the Firing Squad, So How Does It Work?, Associated Press (Mar.

24, 2015), https://apnews.com/general-news-58559881d0f743009cfeb52196702382.

APP0027

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Furthermore, evidence and recent experience strongly suggest that “the firing squad

is significantly more reliable” than lethal injection. Glossip v. Gross, 576 U.S. 863, 976-77 (2015)

(Sotomayor, J., dissenting). Historically, the firing squad has resulted in significantly fewer

“botched” executions. “Botched executions are those involving unanticipated problems or delays

that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence

of the executioner.”39 A recent study, which analyzed the contemporaneous news reports of all

executions in the United States from 1900 to 2010 found that 7.12% of the 1,054 executions by

lethal injection were “botched” and none of the 34 executions by firing squad had been botched.40

125.

Accordingly, execution by firing squad is a known and available alternative method

of execution that presents a substantially lower risk of severe pain and suffering than nitrogen gas.

Defendants have no legitimate penological reason for not implementing such a protocol.

126.

Execution by Administration of Medical-Aid-In-Dying (“DDMAPh”)

Medical-aid-in-dying is a known, available, and feasible alternative method that

would reduce pain and suffering. DDMAPh is the most commonly used regimen for medical-aidin-dying in the United States.

127.

The study and regular use of the regimen means that Mr. Hoffman is able to present

evidence on “essential questions” like what drugs should be administered and in what quantities.

This is not merely “a proposal for more research,” but a readily implemented alternative. Bucklew

v. Precythe, 587 U.S. 119, 142 (2019).

128.

DDMAPh is the administration of digonxin, diazepan, morphine, amtirtipyline and

phenobarbital.

Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty, p. 5 (2014)

(quotations omitted).

Id.

APP0028

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Specifically, for a quick death in the execution setting, the DDMAph protocol

consists of 100 mg of digoxin, 2,000 mg of diazepam, 15,000 mg of morphine, 8,000 mg of

amitriptyline, and 10,000 mg of phenobarbital. The medications are simply mixed with apple

juice/apple syrup and administered to the prisoner.

130.

Defendants should be able to carry out an execution by administration of DDMAPh

using supplies, equipment, and the services of personnel already within their control.

131.

Administration of DDMAPh does not require any specialized equipment or

training.

132.

DDMAPh effectively causes death without any risk of prolonged pain or suffering.

133.

This manner of causing death is neither untried nor untested. DDMAPh would not

be an experiment. There is a proven track record of success in causing death using the DDMAPh

regimen. Defendants have no legitimate penological reason for not implementing such a protocol.

Plaintiff Jessie Hoffman is a Practicing Buddhist and Suffers from PTSD

134.

Mr. Hoffman has been a devout follower of the Buddhist faith for over two decades.

He has attended Buddhist services on Death Row since the prison began offering them in 2018.

He follows Buddhist teachings and practices mindfulness and meditation. A core component of

his Buddhist practice is breathing meditation.

135.

According to the Buddha, one must maintain contact with the breath in order to be

mindful. Mr. Hoffman sincerely believes that he must practice breathing meditation at the most

critical time of his transition between life and death.

136.

Executing Mr. Hoffman by forcing him to breathe pure nitrogen, poisonous to

humans and animals, would interfere with his ability to engage in essential Buddhist beliefs and

practices at the time of his death.

APP0029

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Mr. Hoffman also suffered a childhood of abuse so severe that it was tantamount to

torture and has been diagnosed with complex post-traumatic stress disorder as a result.

138.

Mr. Hoffman was two months past his eighteenth birthday at the time of his offense.

His childhood was characterized by sexual, physical, and verbal abuse, and other torture and

violence. Throughout his childhood, beginning at an early age until about the age of 10, his mother

used physically abusive “discipline” to maintain control. In addition to the family member reports

of the horrific abuse he suffered growing up, police calls for service reflect regular reports of

cruelty to juveniles in the places he lived.

139.

Mr. Hoffman’s mother would beat her children with sticks, pipes, pans, belts, on

one occasion a bat, and electrical cords. Often the beatings were after baths when the children

were wet and naked. They left welts and drew blood. She also sexually abused her children, again

from a young age. She would make them get into bed with her while she was naked and “massage”

her.

140.

Mr. Hoffman’s mother would also hold his hand over the fire burner on the stove

when he touched something he was not supposed to. At 14 months of age, Mr. Hoffman’s

grandmother brought him to Charity Hospital for a burn to his hand, which she said he suffered

ten days before. By then the second- and third-degree burns were so raw and infected, he was

hospitalized for nineteen days for treatment.

141.

The time that Mr. Hoffman spent at his father’s house was no respite. His father

would hog-tie the children for punishment and lock them in the closet for long periods of time.

Mr. Hoffman still has claustrophobia from that experience today.

142.

It is only due to two decades of practicing mindfulness through breathing

meditation that Mr. Hoffman has been able to manage his severe and debilitating symptoms of

PTSD.

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Without the ability to breathe air and practice Buddhist breathing meditation, Mr.

Hoffman is very likely to re-experience the severely distressful symptoms of his PTSD. These

symptoms may include psychotic and dissociative symptomatology, extreme stress and anxiety,

and panic attacks.

144.

Executing Mr. Hoffman by nitrogen gas will very likely cause him to experience

extreme psychological distress and panic. An individual experiencing panic while also being

denied oxygen will experience a constricted airway like an upper airway obstruction. Mr. Hoffman

may vomit, convulse, experience an inability to breathe, and otherwise suffer severe psychological

pain.

145.

As a direct and proximate result of Defendants’ violations of the United States

Constitution and other laws, Mr. Hoffman has suffered and will continue to suffer irreparable

injury.

EXHAUSTION

146.

Mr. Hoffman has completed the administrative remedy process for this complaint

when his ARPs were rejected on June 6, 2024, and July 3, 2024. On February 12, 2025, the

Twenty-Second Judicial District for the Parish of St. Tammany executed a warrant for Mr.

Hoffman’s execution. In an abundance of caution, after his attorneys received notice that the State

was seeking an execution warrant, Mr. Hoffman filed an emergency ARP on February 11, 2025.

On February 13, 2025, Mr. Hoffman was notified that a response from the Warden’s office would

be issued within 40 days of the date of his filing.

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CLAIMS FOR RELIEF

COUNT I

Eighth and Fourteenth Amendments Violations – Defendants’ Nitrogen Gas Execution is

Unconstitutional

147.

Mr. Hoffman incorporates the allegations of the preceding paragraphs as if fully set

forth herein.

148.

The Eighth Amendment forbids the Government from carrying out a death sentence

in a manner that is “‘sure or very likely to cause serious illness and needless suffering,’ and give

rise to ‘sufficiently imminent dangers.’” Glossip, 576 U.S. 863, 876 (quoting Baze v. Rees, 553

U.S. 35, 50 (2008); Helling v. McKinney, 509 U.S. 25, 33, 34–35 (1993)). “Punishments are cruel

when they involve torture or a lingering death . . . something more than the mere extinguishment

of life.” In re Kemmler, 136 U.S. 436, 447 (1890); see also Baze, 553 U.S. at 50 (execution violates

the Eighth Amendment if it presents a “substantial risk of serious harm”).

149.

To prevail on an Eighth Amendment claim, Mr. Hoffman must show that there is a

“substantial risk of serious harm” or an “objectively intolerable risk of harm” when compared to

an alternative method of execution to the state’s protocol that is “feasible, readily implemented,

and in fact significantly reduce[s] a substantial risk of severe pain.” Id. (quoting Baze, 553 U.S.

at 50, 52). A “substantial risk of serious harm” may occur when the method of execution involves

“torture or a lingering death,” Baze, 553 U.S. at 49, or the “‘superaddition’ of ‘terror, pain, or

disgrace.’” Bucklew, 587 U.S. at 133 (quoting Baze, 553 U.S. at 48).

150.

Defendants intend to execute Mr. Hoffman in a manner that is cruel, unreliable and

that will inflict excruciating suffering on Mr. Hoffman. To the extent Mr. Hoffman knows what

the execution procedure Defendants intend to use entails, Mr. Hoffman believes it creates a

substantial risk of inflicting grievous suffering and harm that is foreseeable and significant, but

which is unnecessary and can be avoided.

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The secrecy provisions of La. Rev. Stat. § 15:570(G) and the execution protocol

also violate the Eighth Amendment’s cruel and unusual punishment clause, as the clause derives

its meaning from the evolving standards of decency that mark the progress of a maturing society.

This standard requires that a court look to objective indicia that reflect the public attitude toward

a given sanction; because the public is deprived of knowledge regarding Louisiana’s executions,

Mr. Hoffman’s right to a punishment in line with contemporary values is violated.

152.

There are alternative methods of execution, as described above (see supra ¶¶ 118-

133), that are “feasible, readily implemented, and in fact [would] significantly reduce the

substantial risk of severe pain.” Baze, 553 U.S. at 52.

153.

Because La. Rev. Stat. § 15:569, § 15:570 and the execution protocol pose a

substantial risk of serious harm to Mr. Hoffman, it violates his constitutional right guaranteed by

the Eighth Amendment of the United States Constitution to be free from cruel and unusual

punishment.

Execution by Nitrogen Gas Will Subject Mr. Hoffman to Cruel and Unusual

Punishment.

154.

Execution by nitrogen gas is cruel and excessive, because it involves significantly

more pain and suffering than necessary for the mere extinguishment of life. Death by nitrogen gas

is not instantaneous. See supra ¶¶ 74-95.

155.

To be asphyxiated by nitrogen gas causes conscious terror for several minutes and

excruciating sensations of being suffocated to death. See supra ¶¶ 79-86, 88-89.

156.

For example, during the execution of Mr. Smith last year in Alabama, witnesses

described Mr. Smith as still conscious while he convulsed and suffocated to death on the gurney

See supra ¶¶ 79-82.

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Because it is difficult to keep oxygen out of the respirator mask, death by nitrogen

gas can be prolonged, increasing the risk that the condemned inmate enters into a persistent

vegetative state, suffers a stroke, or continues to experience the feeling of suffocation. See supra

¶¶ 91, 94.

158.

The United Nations has expressed concerns that death by nitrogen gas likely

violates the prohibition on torture and other inhumane punishments. See supra ¶ 93.

159.

The AVMA refuses to recommend euthanizing most mammals by nitrogen gas

because of the pain and suffering it causes. See supra ¶ 92.

160.

Moreover, because La. Rev. Stat. § 15:570(G) “ensure[s] the absolute

confidentiality of the identifying information of any person, business, organization, or other entity

directly or indirectly involved in the execution of a death sentence within this state,” Mr. Hoffman

has no way of knowing whether Defendants have actually obtained and will use pure nitrogen gas,

as opposed to some substandard substance that could increase or prolong any pain and suffering.

161.

Execution by nitrogen gas is unusual. Virtually untested, nitrogen gas has only

been used a handful of times (never by the DPSC), see supra ¶ 75, and is only authorized for use

in a few jurisdictions (Alabama, Mississippi, Oklahoma, and Louisiana).41

162.

If the execution of Mr. Hoffman is allowed to proceed using nitrogen gas, he will

be subjected to cruel and unusual punishment, in violation of the Eighth and Fourteenth

Amendments to the United States Constitution.

The Protocol is Likely to be Maladministered

163.

Defendants will not administer their execution protocol in a way that adequately

protects Mr. Hoffman from cruel and unusual punishment. The history of Defendants’ deviations

See Death Penalty Info. Ctr., Methods of Execution: Authorized Methods by State,

https://deathpenaltyinfo.org/executions/methods-of-execution/authorized-methods-by-state.

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from the written protocol, lack of oversight and safeguards in the protocol, and lack of adequate

training for execution team members creates a substantial risk that Mr. Hoffman will be subjected

to severe suffering.

164.

Core Deviations from Written Execution Protocol

Upon information and belief, Defendants are likely to make core deviations from

the written execution protocols. For example, in the days leading up to Mr. Sepulvado’s scheduled

February 5, 2014 execution date, Defendants made multiple material deviations from their written

protocol. See supra ¶¶ 41, 46-51, 112.

165.

Based on Defendants’ past practices, Defendants will likely deviate from their

written protocol, creating an unacceptable risk that Mr. Hoffman will be subjected to cruel and

unusual punishment.

166.

Lack of Oversight and Safeguards

Upon information and belief, Mr. Hoffman’s execution will not be carried out in

accordance with the written instructions, or will be administered in such a way that fails to

adequately safeguard Mr. Hoffman’s rights.

167.

There is a reasonable likelihood that the lethal gas has been or will be ineffectively

delivered, stored, and/or have expired.

168.

Upon information and belief, the equipment that will be used to carry out the

execution has not been tested for efficacy.

169.

The overall lack of oversight and safeguards creates an unacceptable risk that Mr.

Hoffman will be subjected to cruel and unusual punishment, in violation of the Eighth and

Fourteenth Amendments to the United States Constitution.

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Lack of Training

Upon information and belief, the members of the current execution team (the Doe

Defendants) have not received adequate training, which increases the likelihood that errors will be

made in carrying out the execution. None of the Doe Defendants are medical professionals or have

any medical training. Nor will there be any medical supervision of the Doe Defendants during the

execution.

171.

Upon information and belief, the named Defendants know the Doe Defendants are

not qualified to administer lethal drugs, but are deliberately indifferent to the risks that their failure

to train and supervise the Doe Defendants will have on Mr. Hoffman’s constitutional rights.

172.

Upon information and belief, the Doe Defendants will not engage in adequate

practice sessions prior to Mr. Hoffman’s execution.

173.

Indeed, Defendants did not adhere to the terms of the execution protocols with

regard to practice for past executions. See supra ¶¶ 111-112.

174.

Nor could the Doe Defendants possibly have sufficient training and practice. For

example, under the 2013 execution protocol, once an execution date was set, the members of the

execution team were required to train at least weekly. Mr. Sepulvado’s execution date was set on

February 5, 2014. The execution team practiced exactly twice prior to Mr. Sepulvado’s execution

date. Significantly, Defendants materially changed the protocol nine days before the February 5,

2014 execution date, which did not allow sufficient time to practice the new protocol.

175.

On February 10, 2025, Governor Landry announced that the DPSC had finalized a

new execution protocol. Within 36 hours, an execution warrant for Mr. Hoffman was issued for

March 18, 2025, leaving the DPSC just over one month to ensure that its new execution protocol

can be administered effectively and safely by the Doe Defendants

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Upon information and belief, Defendants have not conducted sufficient training and

practice for the upcoming execution on March 18, 2025.

177.

Upon information and belief, any “execution practice” sessions held by Defendants

are insufficient to adequately train Defendants to be able to undertake an execution in a

constitutional manner.

178.

The lack of practice and training creates a substantial risk that Mr. Hoffman will

suffer the wanton and unnecessary infliction of pain and torture, or prolonged, lingering deaths, as

he is put to death. This includes experiencing cruelly superadded pain and suffering, conscious

paralysis, suffocation, or conscious cardiac arrest. On information and belief, the undisclosed

execution protocol does not include adequate safeguards to protect Mr. Hoffman from cruel and

unusual punishment.

179.

Upon information and belief, the execution protocol will not be administered in a

way that adequately protects Mr. Hoffman from cruel and unusual punishment. The lack of

training and oversight over the implementation of Defendants’ execution protocol creates a

substantial risk of severe pain.

180.

Lack of Medical Oversight

The Eighth Amendment forbids “deliberate indifference” to “serious medical needs

of prisoners,” Estelle v. Gamble, 429 U.S. 97, 104 (1976), and to a substantial risk of serious harm

to a prisoner, see Farmer v. Brennan, 511 U.S. 825, 834 (1994).

181.

Substantive due process affords similar protections: “[A] physician who acts on

behalf of the State to provide needed medical attention to a person involuntarily in state custody

(in prison or elsewhere) and prevented from otherwise obtaining it, and who causes physical harm

to such a person by deliberate indifference, violates the [United States Constitution’s] protection

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against the deprivation of liberty without due process.” West v. Atkins, 487 U.S. 42, 58 (1988)

(Scalia, J., concurring).

182.

The choice of a course of medical treatment may violate the Eighth Amendment

where it is “so blatantly inappropriate as to evidence intentional mistreatment likely to seriously

aggravate the prisoner’s condition.” Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974), vacated

and remanded on other grounds sub nom. Cannon v. Thomas, 419 U.S. 813 (1974).

183.

Defendants are required to provide Mr. Hoffman with appropriate medical care

until the moment of his death. Thus, the Eighth Amendment’s proscription against “deliberate

indifference” requires that they administer the death penalty without the “unnecessary and wanton

infliction of pain.” Gregg, 428 U.S. at 173.

184.

Upon information and belief, the execution protocol has not been examined by a

licensed medical professional to ensure that there are adequate safeguards to protect the

condemned inmates’ constitutional rights against torture, pain, and suffering.

185.

Upon information and belief, the execution protocol was promulgated without any

medical research or review to determine that a prisoner would not suffer cruelly superadded pain

or a lingering death.

Alternative Execution Methods are Feasible, Readily Implemented, and

Would Significantly Reduce the Substantial Risk of Mr. Hoffman’s Suffering

Severe Pain and Terror

186.

Execution by Firing Squad

Execution by use of a firing squad is a “known and available” alternative method

under Baze v. Rees, 553 U.S. 35, 61 (2008), and Glossip v. Gross, 576 U.S. 863 (2015). The

Supreme Court has held that the firing squad is a constitutionally permissible form of execution.

See Wilkerson v. Utah, 99 U.S. 130, 134-35 (1878) (upholding sentence of death by firing squad);

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Arthur v. Dunn, 137 S. Ct. 725, 734 (2017) (Sotomayor, J., dissenting from denial of certiorari)

(recognizing that condemned inmates may “find more dignity in an instantaneous death [by firing

squad]”).

187.

Other states and the United States military have carried out numerous executions

by firing squad.

188.

Oklahoma, Utah and Mississippi currently authorize the use of a firing squad

among their statutory methods of execution.42 Utah has executed three inmates by firing squad

since 1976—most recently on July 18, 2010.43

189.

Protocols for execution by firing squad are known and available. For example, as

set forth above, Utah’s technical manual specifies the state’s execution protocol in great detail.

See supra ¶ 121.

190.

Upon information and belief, Defendants could easily identify qualified personnel

to carry out an execution by firing squad. Furthermore, the State already has a sufficient stockpile

of both the weapons and ammunition necessary to carry out an execution.

191.

Execution by firing squad is both swift and virtually painless.

If performed

properly—a simple matter for trained marksmen—the use of a firing squad will eliminate the

substantial risk of severe pain that Defendants’ current execution protocol present to Mr. Hoffman.

192.

Furthermore, evidence and recent experience strongly suggest that “the firing squad

is significantly more reliable” than lethal injection. Glossip, 576 U.S. at 976-77 (Sotomayor, J.,

dissenting). Historically, the firing squad has resulted in significantly fewer “botched” executions,

which are those involving unanticipated problems or delays that caused, at least arguably,

See Okla. Stat. Ann. tit. 22 § 1014; Utah Code Ann. § 77-18-5.5; Miss. Code Ann. § 99-19-51; see also

2019 S.C. S.B. 176, 123rd Session General Assembly – 2nd Regular Session (2020) (South Carolina Senate

Bill to revive firing squad as method of execution).

See Johnson, supra note 36.

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unnecessary agony for the prisoner or that reflect gross incompetence of the executioner.”44 A

recent study, which analyzed the contemporaneous news reports of all executions in the United

States from 1900 to 2010 found that 7.12% of the 1,054 executions by lethal injection were

“botched” and none of the 34 executions by firing squad had been botched.45

193.

Accordingly, an execution by firing squad is a known and available alternative

method of execution, that presents a substantially lower risk of severe pain and suffering than

nitrogen gas. Defendants have no legitimate penological reason for not implementing such a

protocol.

194.

Execution by Administration of DDMAPh

DDMAPh is the most commonly used regimen for medical-aid-in-dying in the

United States. The study and regular use of the regimen means that Mr. Hoffman is able to present

evidence on “essential questions” like what drugs should be administered and in what quantities.

This is not merely “a proposal for more research,” but a readily implemented alternative. Bucklew,

587 U.S. at 142.

195.

Specifically, for a quick death in the execution setting, the DDMAPh protocol

consists of 100 mg of digoxin, 2,000 mg of diazepam, 15,000 mg of morphine, 8,000 mg of

amitriptyline, and 10,000 mg of phenobarbital. The medications are simply mixed with apple

juice/apple syrup and administered to the prisoner.

196.

Administration of DDMAPh does not require any specialized equipment or

training.

197.

DDMAPh effectively causes death without any risk of prolonged pain or suffering.

Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty, at 5 (2014)

(quotations omitted).

Id.

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This manner of causing death is neither untried nor untested. DDMAPh would not

be an experiment. There is a proven track record of success in causing death using the DDMAPh

regimen. Defendants have no legitimate penological reason for not implementing such a protocol.

COUNT II

Eighth Amendment Violations – Defendants’ Nitrogen Gas Execution is Unconstitutional

as Applied to Plaintiff Jessie Hoffman

199.

Mr. Hoffman incorporates the allegations of the preceding paragraphs as if fully set

forth herein.

200.

Mr. Hoffman suffered a childhood of abuse and neglect.

201.

Mr. Hoffman has been diagnosed with complex post-traumatic stress syndrome.

Individuals who suffer from complex PTSD experience symptoms such as panic, severe anxiety,

mood dysregulation, high blood pressure, disassociation, and a sensation of restricted breathing.

202.

Mr. Hoffman manages his symptoms by Buddhist breathing techniques. If Mr.

Hoffman were to be executed by nitrogen gas, he would be unable to manage his PTSD by

Buddhist breathing techniques.

203.

Executing Mr. Hoffman by nitrogen gas will very likely cause him to experience

extreme psychological distress and panic. An individual experiencing panic while also being

denied oxygen will experience a constricted airway like an upper airway obstruction. Mr. Hoffman

may vomit, convulse, experience an inability to breathe, and/or otherwise suffer severe

psychological pain.

204.

The placement of a gas mask over Mr. Hoffman’s face, preventing his use of these

breathing techniques to manage PTSD while strapped to a gurney, moreover would trigger his

PTSD and claustrophobia from being hog-tied and locked in a closet as a child.

205.

Executing Mr. Hoffman by nitrogen gas would further superadd pain and suffering

and therefore violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

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COUNT III

Violation of the Ex Post Facto Provision of the United States Constitution – Defendants’

Nitrogen Gas Execution is an Unconstitutional Ex Post Facto Punishment as Applied to Mr.

Hoffman

206.

Mr. Hoffman incorporates the allegations of the preceding paragraphs as if fully set

forth herein.

207.

In accordance with Article I, Section 10, clause 1 of the United States Constitution,

no State may enact a law which, by retroactive operation, creates a significant risk of increased

punishment for a crime after the defendant has been sentenced.

208.

At the time the offenses occurred that subjected Mr. Hoffman to a death sentence,

and at the time that Mr. Hoffman was sentenced to death, La. Rev. Stat. § 15:569 provided that

“[e]very sentence of death executed on or after September 15, 1991, shall be by lethal injection;

that is, by the intravenous injection of a substance or substances in a lethal quantity into the body

of a person convicted until such person is dead.” La. Rev. Stat. § 15:569 (1991).

209.

As set forth above, in 2024, the Louisiana legislature amended La. Rev. Stat.

§ 15:569 and expanded the manner in which the State can execute condemned inmates by adding

electrocution and nitrogen gas. La. Rev. Stat. § 15:569 (2024). The DPSC Secretary now has the

discretion and unfettered authority to choose between lethal injection, nitrogen gas, or

electrocution in carrying out a sentence of death.

210.

The 2024 amendments to La. Rev. Stat. § 15:569 and § 15:570 went into effect on

July 1, 2024, applying to all executions regardless of the date of offense or imposition of sentence.

211.

If Defendants execute Mr. Hoffman with nitrogen gas, they will retroactively

subject Mr. Hoffman to an increased punishment for a crime after Mr. Hoffman was already

sentenced in violation of the ex post facto clause.

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Additionally, if Defendants elect to execute Mr. Hoffman with lethal injection,

Defendants’ past practices in changing Louisiana’s execution protocol make it substantially likely

that Mr. Hoffman will be subjected to a significantly altered execution procedure than is specified

in the last-disclosed protocol. Defendants will likely make such alterations without giving any

notice to Mr. Hoffman.

213.

The substitution of a compounded or different drug for an FDA-approved drug

qualifies as a significant change increasing the severity of Mr. Hoffman’s punishment, in violation

of the ex post facto clause.

214.

Accordingly, La. Rev. Stat. § 15:569, § 15:570 and the execution protocol are

unconstitutional as ex post facto laws as applied to Mr. Hoffman.

COUNT IV

First, Sixth, and Fourteenth Amendments and 18 U.S.C. § 3599 Violations – Defendants

Intentionally Deprive Mr. Hoffman of Meaningful Access to Counsel and the Courts

215.

Mr. Hoffman incorporates the allegations of the preceding paragraphs as if fully set

forth herein.

216.

Prisoners have a right under the First, and Fourteenth Amendments of the United

States Constitution to access to the courts. See, e.g., Lewis v. Casey, 518 U.S. 343, 350-51 (1996);

Wolff v. McDonnell, 418 U.S. 539, 579 (1974). “The right of access to the courts . . . assures that

no person will be denied the opportunity to present to the judiciary allegations concerning

violations of fundamental constitutional rights.” Wolff, 418 U.S. at 579.

217.

Prisoners also have a right under the Sixth Amendment of the United States

Constitution to access to counsel at all “critical” stages of criminal proceedings. United States v.

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

218.

Under Section 3599(a)(2) of Title 18 of the U.S. Code, an indigent defendant’s

appointed attorney shall represent the defendant throughout every stage of available judicial

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proceedings, including all available post-conviction process, together with applications for stays

of execution and other appropriate motions and procedures, in addition to competency proceedings

and proceedings for executive or other clemency as may be available to the defendant.

See Harbison v. Bell, 556 U.S. 180, 194 (2009).

219.

Prisoners have the right to access to counsel throughout the execution procedure,

including during an execution. Id.; In re Ohio Execution Protocol Litig., No. 2:11-CV-1016, 2018

WL 6529145, at *4-5 (S.D. Ohio Dec. 12, 2018).

220.

To assert an Eighth Amendment violation prior to or during execution, Mr.

Hoffman must be able to communicate that violation to his counsel, and counsel must be able to

access the courts on Mr. Hoffman’s behalf.

Abridgement of either prisoner-counsel

communication or counsel’s access to the courts violates Mr. Hoffman’s constitutional right to

access to counsel and the courts.

221.

Under the 2014 Execution Protocol, attorneys are allowed to remain with the

condemned inmate only “until the visit is terminated at the discretion of the Warden.” The

condemned inmate is given no right to an attorney present throughout his execution.

222.

Mr. Hoffman does not know what level of access the current execution protocol

allows for, as Defendants have refused to provide Mr. Hoffman with a copy of the current

execution protocol.

223.

Without attorney access to the current execution protocol, Mr. Hoffman is

prevented from meaningfully challenging unconstitutional aspects of the current execution

protocol in court.

224.

Without attorney access to the execution chamber, there is no way to ensure that

the execution protocol is carried out as directed.

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Without attorney access to the execution chamber, there is no way to confirm that

the condemned inmate does not suffer cruelly superadded pain and suffering while conscious.

226.

Without attorney access to the execution chamber, it is impossible for counsel to

seek an emergency stay of execution should something go wrong.

227.

By denying Mr. Hoffman meaningful access to counsel and to the courts during the

preparation for, and carrying out of, his execution, Defendants will deny him the right of access to

the court system under the First, Sixth and Fourteenth Amendments and intentionally violate Mr.

Hoffman’s rights under 18 U.S.C. § 3599.

COUNT V

Fourteenth Amendment Violations – Defendants’ Refusal to Disclose the Execution

Protocol

228.

Mr. Hoffman incorporates the allegations of the preceding paragraphs as if fully set

forth herein.

229.

The Due Process Clause of the United States Constitution entitles Mr. Hoffman to

notice and an opportunity to be heard before he can be deprived of life, liberty, or property.

230.

Being “deprived of life” unequivocally implicates a constitutionally protected

interest, U.S. Const. amend. XIV, and the U.S. Supreme Court has held that constitutionally

protected “liberty interests are implicated” when the government plans to “inflict[] appreciable

physical pain.” Ingraham v. Wright, 430 U.S. 651, 674 (1977).

231.

Defendants have not disclosed sufficient information or details regarding the

development and drafting of the execution protocol or the procedures that will be utilized in

carrying out Mr. Hoffman’s execution pursuant to the execution protocol. Mr. Hoffman, therefore,

cannot determine whether aspects of the execution protocol violate provisions of federal law or

constitute cruel and unusual punishment, cannot consult medical experts concerning those aspects,

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and cannot determine and seek to remedy the ways in which the execution protocol presents an

avoidable risk of unconstitutional pain and suffering during his execution.

232.

Executing Mr. Hoffman would violate his procedural due process rights under the

Fourteenth Amendment to the United States Constitutions based on the present circumstances that

have substantially interfered with any method challenge, including that (i) Defendants plan to

execute Mr. Hoffman with a forced nitrogen gassing method that has never been used in this State

and where forced nitrogen gassing has resulted in torturous executions when experimented with

by Alabama over the last year, (ii) Defendants withheld until February 20, 2025 the information

that a forced nitrogen gassing method would be used to execute Mr. Hoffman, (iii) Defendants

purport to have a protocol by which they will execute Mr. Hoffman using the forced nitrogen

gassing method but refused to disclose it to Mr. Hoffman or his counsel, (iv) Defendants scheduled

by warrant an imminent March 18, 2025 execution date, and (v) Defendants have, through baseless

oppositions to re-open the Related Case and an emergency petition for writ of mandamus and

administrative stay,46 engaged in outrageous dilatory practices to deny Mr. Hoffman access to the

courts and the assistance of counsel in advance of the imminent execution date. Defendants’

conduct deprives Mr. Hoffman of his life and liberty without providing sufficient notice and

opportunity to be heard on the execution procedures to be used.

COUNT VI

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) Violations –

Defendants’ Nitrogen Gas Protocol Violates Plaintiff Jessie Hoffman’s Religious Liberties

233.

Mr. Hoffman incorporates the allegations of the preceding paragraphs as if fully set

forth herein.

Mr. Hoffman’s filing of the instant suit is by no means a concession that Defendants’ arguments in the

Related Case are correct, but in light of the exigent circumstances of Mr. Hoffman’s upcoming scheduled

execution in 21 days, Mr. Hoffman has decided to initiate the instant suit to have the opportunity to assert

his constitutional rights before Defendants run out the clock in the Related Case.

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Mr. Hoffman has practiced the Buddhist faith for over two decades. He has

attended Buddhist services on Death Row beginning seven years ago. He follows Buddhist

teachings and practices mindfulness and meditation. A core component of his Buddhist practice

is breathing meditation.

235.

According to the Buddha, one must maintain contact with the breath in order to be

mindful. Mr. Hoffman sincerely believes that he must practice breathing meditation at the most

critical time of his transition between life and death.

236.

Executing Mr. Hoffman by forcing him to breathe pure nitrogen, poisonous to

humans and animals, would interfere with his ability to engage in essential Buddhist beliefs and

practices at the time of his death.

237.

Under the Religious Land Use and Institutionalized Persons Act, Pub. L. 106–274,

codified as 42 U.S.C. § 2000cc et seq (“RLUIPA”), the State and Defendants are prohibited from

imposing a substantial burden on the religious exercise of a person confined to an institution, unless

that burden is in furtherance of a compelling government interest, and it is the least restrictive

means to achieve that interest.

238.

Executing Mr. Hoffman by nitrogen gas is a substantial burden on his exercise of

his religion. There is no compelling interest in executing him by nitrogen gas that cannot be

furthered by less restrictive means.

COUNT VII

First Amendment Violations - Defendants’ Nitrogen Gas Execution Violates Plaintiff Jessie

Hoffman’s Free Exercise of Religion

239.

Mr. Hoffman incorporates the allegations of the preceding paragraphs as if fully set

forth herein.

240.

The Buddhist meditative breathing practices that Mr. Hoffman uses are

fundamental to the practice of his faith.

APP0047

Case 3:25-cv-00169-SDD-SDJ

241.

Document 1

02/25/25

Page 48 of 53

Executing Mr. Hoffman by forcing him to breathe pure nitrogen, poisonous to

humans and animals, would interfere with his ability to engage in essential Buddhist beliefs and

practices in the execution chamber and at the time of his death, including Buddhist meditative

breathing practices.

242.

Denying Mr. Hoffman the right to engage in essential Buddhist beliefs and practices

in the execution chamber and at the time of death would be a violation of the Free Exercise clause

of the First Amendment, applicable through the Fourteenth Amendment. Butts v. Martin, 877 F.3d

571, 584 (5th Cir. 2017); Smith v. Comm’r, Ala. Dep’t of Corr., 844 Fed. Appx. 286, 291 (11th

Cir. 2021).

243.

Executing Mr. Hoffman by nitrogen gas will place a substantial and unnecessary

burden on his free exercise of Buddhism and the practice of his faith in the execution chamber

while he is put to death.

244.

Executing Mr. Hoffman by nitrogen gas violates his First Amendment rights to

freely exercise his religious beliefs.

PRAYER FOR RELIEF

WHEREFORE, in order to prevent the violations of Mr. Hoffman’s rights under the United States

Constitution and other laws, Mr. Hoffman respectfully requests that the Court enter a judgment:

(a)

declaring that Defendants’ actions, practices, customs, and policies with regard to

their means, methods, procedures, and customs regarding executions, and

specifically the execution protocol, are illegal and violate the First, Sixth, Eighth,

and Fourteenth Amendments of the United States Constitution, the ex post facto

Clause of the United States Constitution, 18 U.S.C. § 3599, and RLUIPA;

APP0048

Case 3:25-cv-00169-SDD-SDJ

(b)

Document 1

02/25/25

Page 49 of 53

declaring that it violates the Eighth Amendment for Defendants to carry out an

execution using nitrogen gas;

(c)

declaring that it violates the Eighth and Fourteenth Amendments when there are

alternative execution methods that would substantially reduce the risk of substantial

harm to Mr. Hoffman;

(d)

declaring that it violates the ex post facto clause of the United States, Constitution

for Defendants to execute Mr. Hoffman with nitrogen gas because it will

retroactively subject Mr. Hoffman to an increased punishment for a crime after Mr.

Hoffman was already sentenced;

(e)

declaring that it violates the First, Sixth and Fourteenth Amendments and 18 U.S.C.

§ 3599 for Defendants to prohibit Mr. Hoffman from having access to his attorneys

prior to and during his execution, including having access to his attorneys in the

execution chamber;

(f)

declaring that it violates the Fourteenth Amendment for Defendants to refuse to

disclose the execution protocol;

(g)

declaring that it violates RLUIPA for Defendants to execute Mr. Hoffman by

nitrogen gas given Mr. Hoffman’s sincerely held Buddhist religious practices;

(h)

declaring that it violates the First Amendment for Defendants to execute Mr.

Hoffman by nitrogen gas;

(i)

enjoining Defendants and all persons acting on their behalf from using the

execution protocol, or any revised protocol that violates Mr. Hoffman’s rights and

the law, for the same reasons challenged above;

(j)

enjoining Defendants from executing Mr. Hoffman during the pendency of this

litigation;

APP0049

Case 3:25-cv-00169-SDD-SDJ

(k)

Document 1

02/25/25

Page 50 of 53

ordering Defendants to provide timely notice to Mr. Hoffman, through his

undersigned counsel, every time the execution protocol is modified, regardless of

whether an execution date has been set;

(l)

preventing Defendants from executing Mr. Hoffman through unconstitutional

means;

(m)

preventing Defendants from executing Mr. Hoffman without affording notice of the

protocol by which Mr. Hoffman will be executed at least six (6) months in advance

of any execution date;

(n)

preventing Defendants from executing Mr. Hoffman without first promulgating a

written protocol that comports with the protections guaranteed by the First, Sixth,

Eighth, and Fourteenth Amendments of the United States Constitution, the ex post

facto Clause of the United States Constitution, 18 U.S.C. § 3599, and RLUIPA and

providing Mr. Hoffman adequate time to review and challenge it;

(o)

enjoining Defendants from carrying out an execution pursuant to La. Rev. Stat.

§ 15:569 and § 15:570;

(p)

enjoining Defendants from carrying out an execution pursuant to the current

execution protocol;

(q)

enjoining Defendants from deviating from any valid written protocol;

(r)

enjoining Defendants from carrying out an execution without giving Mr. Hoffman

access to counsel before and during the execution;

(s)

ordering Defendants to make the execution and the identities of the executioners

public;

(t)

awarding Mr. Hoffman attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, or

as allowed by law; and

APP0050

Case 3:25-cv-00169-SDD-SDJ

(u)

Document 1

02/25/25

Page 51 of 53

granting such further relief as the Court deems just and proper.

Dated: February 25, 2025

Respectfully submitted,

/s/ Samantha Bosalavage Pourciau_

Samantha Bosalavage Pourciau, La. Bar No. 39808

Promise of Justice Initiative

1024 Elysian Fields Avenue

New Orleans, LA 70117

Tel: (504) 529-5955

Sbosalavage@defendla.org

Cecelia Trenticosta Kappel, La. Bar No. 32736

Loyola Center for Social Justice

7214 St. Charles Ave. Box 907

New Orleans, Louisiana 70118

Tel: 504-861-5735

Email: ckappel@defendla.org

Rebecca L. Hudsmith

Office of the Federal Public Defender

For the Middle and Western Districts of Louisiana

102 Versailles Blvd., Suite 816

Lafayette, LA 70501

Tel: 337-262-6336

Rebecca_Hudsmith@fd.org

James K. Stronski (pro hac vice forthcoming)

Ellen M. Halstead (pro hac vice forthcoming)

Crowell & Moring LLP

Two Manhattan West

375 Ninth Avenue

New York, NY 10001

Tel: (212) 223-4000

JStronski@crowell.com

EHalstead@crowell.com

APP0051

Case 3:25-cv-00169-SDD-SDJ

Document 1

02/25/25

Page 52 of 53

David Lindner (pro hac vice forthcoming)

Crowell & Moring LLP

455 N. Cityfront Plaza Drive

Suite 3600

Chicago, IL 60611

Tel: (312) 321-4200

DLindner@crowell.com

Adam J. Singer (pro hac vice forthcoming)

Crowell & Moring LLP

1001 Pennsylvania Avenue, NW

Washington, DC 20004

Tel: (202) 624-2500

ASinger@crowell.com

Counsel for Plaintiff Jessie Hoffman

APP0052

Case 3:25-cv-00169-SDD-SDJ

Document 1

02/25/25

Page 53 of 53

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing was filed electronically with the Clerk of

Court using CM/ECF on this 25th day of February, 2025. Notice of this filing as generated by the

electronic filing system constitutes service of the filed document on counsel of record for

Defendants.

/s/ Samantha Bosalavage Pourciau

Samantha Bosalavage Pourciau

APP0053

Case 3:25-cv-00169-SDD-SDJ

Document

1-1

CIVIL COVER

SHEET

JS 44 (Rev. 03/24)

02/25/25

Page 1 of 4

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as

provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the

purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Hoffman, Jessie

WESTCOTT, Gary; VANNOY, Darrel; and DOE(s), John

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

United States of Americ

(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:

United States of America

(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF

THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

See attachment

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

U.S. Government

Plaintiff

U.S. Government

Defendant

✖

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

PTF

Citizen of This State

Federal Question

(U.S. Government Not a Party)

Diversity

(Indicate Citizenship of Parties in Item III)

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

110 Insurance

120 Marine

130 Miller Act

140 Negotiable Instrument

150 Recovery of Overpayment

& Enforcement of Judgment

151 Medicare Act

152 Recovery of Defaulted

Student Loans

(Excludes Veterans)

153 Recovery of Overpayment

of Veteran’s Benefits

160 Stockholders’ Suits

190 Other Contract

195 Contract Product Liability

196 Franchise

REAL PROPERTY

210 Land Condemnation

220 Foreclosure

230 Rent Lease & Ejectment

240 Torts to Land

245 Tort Product Liability

290 All Other Real Property

PERSONAL INJURY

310 Airplane

315 Airplane Product

Liability

320 Assault, Libel &

Slander

330 Federal Employers’

Liability

340 Marine

345 Marine Product

Liability

350 Motor Vehicle

355 Motor Vehicle

Product Liability

360 Other Personal

Injury

362 Personal Injury Medical Malpractice

CIVIL RIGHTS

440 Other Civil Rights

441 Voting

442 Employment

443 Housing/

Accommodations

445 Amer. w/Disabilities Employment

446 Amer. w/Disabilities Other

448 Education

V. ORIGIN (Place an “X” in One Box Only)

✖

1 Original

Proceeding

2 Removed from

State Court

PRISONER PETITIONS

Habeas Corpus:

463 Alien Detainee

510 Motions to Vacate

Sentence

530 General

535 Death Penalty

Other:

540 Mandamus & Other

✖ 550 Civil Rights

555 Prison Condition

560 Civil Detainee Conditions of

Confinement

Remanded from

Appellate Court

and One Box for Defendant)

PTF

DEF

Incorporated or Principal Place

of Business In This State

Citizen of Another State

Incorporated and Principal Place

of Business In Another State

Citizen or Subject of a

Foreign Country

Foreign Nation

FORFEITURE/PENALTY

PERSONAL INJURY

365 Personal Injury Product Liability

367 Health Care/

Pharmaceutical

Personal Injury

Product Liability

368 Asbestos Personal

Injury Product

Liability

PERSONAL PROPERTY

370 Other Fraud

371 Truth in Lending

380 Other Personal

Property Damage

385 Property Damage

Product Liability

DEF

625 Drug Related Seizure

of Property 21 USC 881

690 Other

LABOR

710 Fair Labor Standards

Act

720 Labor/Management

Relations

740 Railway Labor Act

751 Family and Medical

Leave Act

790 Other Labor Litigation

791 Employee Retirement

Income Security Act

IMMIGRATION

462 Naturalization Application

465 Other Immigration

Actions

4 Reinstated or

Reopened

Click here for: Nature of Suit Code Descriptions.

BANKRUPTCY

OTHER STATUTES

422 Appeal 28 USC 158

423 Withdrawal

28 USC 157

INTELLECTUAL

PROPERTY RIGHTS

375 False Claims Act

376 Qui Tam (31 USC

3729(a))

400 State Reapportionment

410 Antitrust

430 Banks and Banking

450 Commerce

460 Deportation

470 Racketeer Influenced and

Corrupt Organizations

480 Consumer Credit

(15 USC 1681 or 1692)

485 Telephone Consumer

Protection Act

490 Cable/Sat TV

850 Securities/Commodities/

Exchange

890 Other Statutory Actions

891 Agricultural Acts

893 Environmental Matters

895 Freedom of Information

Act

896 Arbitration

899 Administrative Procedure

Act/Review or Appeal of

Agency Decision

950 Constitutionality of

State Statutes

820 Copyrights

830 Patent

835 Patent - Abbreviated

New Drug Application

840 Trademark

880 Defend Trade Secrets

Act of 2016

SOCIAL SECURITY

861 HIA (1395ff)

862 Black Lung (923)

863 DIWC/DIWW (405(g))

864 SSID Title XVI

865 RSI (405(g))

FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff

or Defendant)

871 IRS—Third Party

26 USC 7609

5 Transferred from

Another District

(specify)

6 Multidistrict

Litigation Transfer

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

8 Multidistrict

Litigation Direct File

42 U.S.C. § 1983

VI. CAUSE OF ACTION Brief description of cause:

Unconstitutional method of execution

VII. REQUESTED IN

COMPLAINT:

VIII. RELATED CASE(S)

IF ANY

CHECK IF THIS IS A CLASS ACTION

UNDER RULE 23, F.R.Cv.P.

(See instructions):

JUDGE

CHECK YES only if demanded in complaint:

DEMAND $

JURY DEMAND:

SIGNATURE OF ATTORNEY OF RECORD

2/25/2025

/s/ Cecelia Trenticosta Kappel

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

APP0054

DOCKET NUMBER 3:12-cv-00796-SDD-EWD

Shelly D. Dick

DATE

Yes

JUDGE

MAG. JUDGE

JS 44 Reverse (Rev. 03/24)

Case 3:25-cv-00169-SDD-SDJ

Document 1-1

02/25/25

Page 2 of 4

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as

required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is

required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of

Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a)

(b)

(c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use

only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then

the official, giving both name and title.

County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the

time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land

condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting

in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"

in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment

to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes

precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the

citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity

cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this

section for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code

that is most applicable. Click here for: Nature of Suit Code Descriptions.

Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing

date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or

multidistrict litigation transfers.

Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.

Section 1407.

Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.

PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to

changes in statute.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional

statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service.

VII.

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related cases, if any. If there are related cases, insert the docket

numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

APP0055

Case 3:25-cv-00169-SDD-SDJ

Document 1-1

Attorneys for Plaintiff Jessie Hoffman:

Cecelia Trenticosta Kappel, La. Bar No. 32736

Loyola Center for Social Justice

7214 St. Charles Ave. Box 907

New Orleans, Louisiana 70118

Tel: 504-861-5735

Email: ckappel@defendla.org

Samantha Bosalavage Pourciau, La. Bar No. 39808

Promise of Justice Initiative

1024 Elysian Fields Avenue

New Orleans, LA 70117

Tel: (504) 529-5955

Sbosalavage@defendla.org

Rebecca L. Hudsmith

Office of the Federal Public Defender

For the Middle and Western Districts of Louisiana

102 Versailles Blvd., Suite 816

Lafayette, LA 70501

Phone: 337-262-6336

Rebecca_Hudsmith@fd.org

James K. Stronski (pro hac vice forthcoming)

Ellen M. Halstead (pro hac vice forthcoming)

Crowell & Moring LLP

Two Manhattan West

375 Ninth Avenue

New York, NY 10001

Tel: (212) 223-4000

JStronski@crowell.com

EHalstead@crowell.com

David Lindner (pro hac vice forthcoming)

Crowell & Moring LLP

455 N. Cityfront Plaza Drive

Suite 3600

Chicago, IL 60611

Tel: (312) 321-4200

DLindner@crowell.com

Adam J. Singer (pro hac vice forthcoming)

Crowell & Moring LLP

1001 Pennsylvania Avenue, NW

Washington, DC 20004

APP0056

02/25/25

Page 3 of 4

Case 3:25-cv-00169-SDD-SDJ

Document 1-1

Tel: (202) 624-2500

ASinger@crowell.com

APP0057

02/25/25

Page 4 of 4

Case 3:25-cv-00169-SDD-SDJ

Document 1-2

02/25/25

Page 1 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

Middle District

__________

DistrictofofLouisiana

__________

)

JESSIE HOFFMAN

Plaintiff(s)

GARY WESTCOTT, et al.,

Defendant(s)

Civil Action No. 3:12-cv-796

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) Gary Westcott

Louisiana Department of Corrections & Public Safety

504 Mayflower Street

Baton Rouge, LA 70802

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are: Samantha Bosalavage Pourciau, Esq.

Promise of Justice Initiative

1024 Elysian Fields Avenue

New Orleans, LA 70117

Tel: (504) 529-5955

Email: SBosalavage@defendla.org

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.

You also must file your answer or motion with the court.

CLERK OF COURT

Date:

Signature of Clerk or Deputy Clerk

APP0058

Case 3:25-cv-00169-SDD-SDJ

Document 1-2

02/25/25

Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No. 3:12-cv-796

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

u I personally served the summons on the individual at (place)

on (date)

; or

u I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

, who is

u I served the summons on (name of individual)

designated by law to accept service of process on behalf of (name of organization)

on (date)

; or

u I returned the summons unexecuted because

; or

u Other (specify):

My fees are $

for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:

Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

APP0059

0.00

Case 3:25-cv-00169-SDD-SDJ

Document 1-3

02/25/25

Page 1 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

Middle District

__________

DistrictofofLouisiana

__________

)

JESSIE HOFFMAN

Plaintiff(s)

GARY WESTCOTT, et. al.

Defendant(s)

Civil Action No.

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) Darrel Vannoy

Louisiana State Penitentiary

17544 Tunica Trace

Angola, LA 70712

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are: Samantha Bosalavage Pourciau, Esq.

Promise of Justice Initiative

1024 Elysian Fields Avenue

New Orleans, LA 70117

Tel: (504) 529-5955

Email: SBosalavage@defendla.org

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.

You also must file your answer or motion with the court.

CLERK OF COURT

Date:

Signature of Clerk or Deputy Clerk

APP0060

Case 3:25-cv-00169-SDD-SDJ

Document 1-3

02/25/25

Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

u I personally served the summons on the individual at (place)

on (date)

; or

u I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

, who is

u I served the summons on (name of individual)

designated by law to accept service of process on behalf of (name of organization)

on (date)

; or

u I returned the summons unexecuted because

; or

u Other (specify):

My fees are $

for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:

Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

APP0061

0.00

Case 3:25-cv-00169-SDD-SDJ

Document 4

02/26/25

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JESSIE HOFFMAN

Civil Action No. 25-169-SDD-SDJ

Plaintiff,

(Related to Civil Action 12-796-SDDEWD)

GARY WESTCOTT, Secretary, Louisiana

Department of Public Safety and Corrections;

DARREL VANNOY, Warden, Louisiana State

Penitentiary; and JOHN DOES, unknown

executioners

Defendants.

EXECUTION SCHEDULED FOR MARCH 18, 2025

MOTION FOR PRELIMINARY INJUNCTION AND EXPEDITED DISCOVERY

TO ENJOIN DEFENDANTS FROM EXECUTING JESSIE HOFFMAN BY NITROGEN

GAS SUFFOCATION

NOW INTO COURT, through undersigned counsel, comes Plaintiff Jessie Hoffman, who

moves this Honorable Court pursuant to Fed. R. Civ. P. 65, for a preliminary injunction to prohibit

Defendants from executing him by nitrogen gas on March 18, 2025, as currently scheduled for the

reasons in the attached memorandum.

Dated: February 26, 2025

Respectfully submitted,

/s/ Samantha Bosalavage Pourciau_

Samantha Bosalavage Pourciau, La. Bar No. 39808

Promise of Justice Initiative

1024 Elysian Fields Avenue

New Orleans, LA 70117

Tel: (504) 529-5955

Sbosalavage@defendla.org

APP0062

Case 3:25-cv-00169-SDD-SDJ

Document 4

02/26/25

Page 2 of 3

Cecelia Trenticosta Kappel, La. Bar No. 32736

Loyola Center for Social Justice

7214 St. Charles Ave. Box 907

New Orleans, Louisiana 70118

Tel: 504-861-5735

Email: ctkappel@defendla.org

Rebecca L. Hudsmith

Office of the Federal Public Defender

For the Middle and Western Districts of Louisiana

102 Versailles Blvd., Suite 816

Lafayette, LA 70501

Tel: 337-262-6336

Rebecca_Hudsmith@fd.org

James K. Stronski (pro hac vice forthcoming)

Ellen M. Halstead (pro hac vice forthcoming)

Crowell & Moring LLP

Two Manhattan West

375 Ninth Avenue

New York, NY 10001

Tel: (212) 223-4000

JStronski@crowell.com

EHalstead@crowell.com

David Lindner (pro hac vice forthcoming)

Crowell & Moring LLP

455 N. Cityfront Plaza Drive

Suite 3600

Chicago, IL 60611

Tel: (312) 321-4200

DLindner@crowell.com

Adam J. Singer (pro hac vice forthcoming)

Crowell & Moring LLP

1001 Pennsylvania Avenue, NW

Washington, DC 20004

Tel: (202) 624-2500

ASinger@crowell.com

Counsel for Plaintiff Jessie Hoffman

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing was filed electronically with the Clerk of

Court using CM/ECF on this 26th day of February, 2025. Notice of this filing as generated by the

electronic filing system constitutes service of the filed document on counsel of record for

Defendants.

/s/ Samantha Bosalavage Pourciau

Samantha Bosalavage Pourciau

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IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JESSIE HOFFMAN

Civil Action No. 25-169-SDD-SDJ

Plaintiff,

(Related to Civil Action 12-796-SDDEWD)

GARY WESTCOTT, Secretary, Louisiana

Department of Public Safety and Corrections;

DARREL VANNOY, Warden, Louisiana State

Penitentiary; and JOHN DOES, unknown

executioners

Defendants.

EXECUTION SCHEDULED FOR MARCH 18, 2025

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

AND EXPEDITED DISCOVERY

INTRODUCTION

The State waited until a mere twenty-six days before his execution date to advise Jessie

Hoffman that he would be executed by “nitrogen hypoxia,” that is, by forced nitrogen gassing

suffocation, or nitrogen asphyxiation. And as of today, a mere twenty days before that scheduled

execution, no execution protocol has been provided to him or his counsel despite requests and

despite public confirmation by Governor Landry that an updated protocol for execution by nitrogen

gassing has been finalized and implemented. 12-796 Rec. Doc. 335-2. 1 The State has refused to

provide this basic information about the method it intends to utilize to gas Mr. Hoffman to death

based on the erroneous and irrelevant contention that the protocol is not a public record. Critically,

Louisiana has never before attempted a gas execution and intends to use Jessie Hoffman as a test

Citations to “12-796 Rec. Doc.” refer to the record documents in the related action No. 12-796SDD-EWD (the “Related Case”).

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case for a method that has proven to cause prolonged torture and suffering in the few times it has

been used in history.

A preliminary injunction staying Mr. Hoffman’s March 18, 2025 execution must be issued

to prevent the State from killing him before it is compelled, at a minimum, to disclose the detailed

protocol it plans to use, explain what steps it has taken to minimize the substantial risk that this

unusual execution method will result in a botched and unnecessarily tortuous execution, and

provide Mr. Hoffman with an opportunity to be heard regarding any challenge to the protocol.

Louisiana has not conducted an execution for well over a decade. Yet it has scheduled an

execution now to take place in less than three weeks while it continued to oppose re-opening the

Related Case and, shockingly, failed to provide its new, updated protocol. There is no experience

or precedent in Louisiana for an execution or execution protocol involving forced nitrogen gassing

and so under these circumstances it is essential that Mr. Hoffman have access to the protocol and

the details regarding exactly how the State intends to conduct this execution in a constitutionally

appropriate manner.

Instead, the State has issued a press release generically describing death by forced nitrogen

gassing in a short paragraph purporting to be a summary of a protocol for one of the three

statutorily available execution methods. But the summary does not provide critical information,

including information about (1) whether the individuals tasked with executing Mr. Hoffman have

been sufficiently trained to do the job properly and to anticipate and be able to detail any

difficulties or contingencies that may or are likely to arise; (2) how the mask will remain sealed

and in the correct position throughout the execution; (3) how carbon dioxide will be removed from

the mask; (4) procedures for a condemned person who vomits inside the mask; (5) the

concentration of the gas to be used; (6) the purity of the gas to be used and whether the gas is

industrial or medical-grade; (7) the identification and limits of impurities present; (8) the

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ventilation capacity of the chamber and safety protocols in connection with releasing nitrogen into

the chamber; or (9) monitoring blood oxygen levels as nitrogen is being administered. Having a

full understanding of these details is particularly critical in light of the shocking experience and

evidence of severe pain and suffering experienced by death row inmates in four prolonged and

tortuous nitrogen asphyxiation execution deaths in Alabama in the last year.

Importantly, Mr. Hoffman raises as-applied challenges here specific to executing him by

forced gassing with nitrogen. First, Mr. Hoffman has long-standing psychiatric diagnoses whereby

any method of death by forced gassing with nitrogen poses a substantial additional risk of a Post

Traumatic Stress Disorder (“PTSD”)-induced panic attack and the risk of a botched execution that

would not exist with any of the two pleaded alternative methods. Second, Mr. Hoffman is a

practicing Buddhist and the method of death by forced nitrogen gassing will prevent him from

practicing a principal Buddhist meditative breathing practice in the execution chamber and at the

time of his death. In Mr. Hoffman’s case, killing him by forcing him to breathe pure nitrogen will

place a substantial and unnecessary burden on his free exercise of Buddhism and the practice of

his faith in the execution chamber while he is put to death. The pleaded alternative methods would

not interfere with or burden the practice of his faith.

This case raises substantial legal challenges. This Court should require the State to answer

basic questions and provide basic and critical facts on the method it intends to use and how it will

be implemented, and 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. The State is attempting to push through an extremely

accelerated and imminent execution while at the same time withholding basic and critical method

information and opposing the re-opening of the Related Case. Unreasonably, the State opposed a

Rule 60(b)(6) motion to re-open Mr. Hoffman’s 2012 method challenge lawsuit, even filing a

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mandamus petition and stay application after re-opening to delay getting Mr. Hoffman’s forced

nitrogen gassing challenge before this Court. This then necessitated the filing of this second

lawsuit to mitigate the State’s dilatory practices and expedite bringing Mr. Hoffman’s application

for expedited discovery and a preliminary injunction before this Court. The State’s tactics can

fairly be described by the label it so freely uses (falsely) against plaintiffs: dilatory. It appears that

the State’s plan is to run out the clock and execute Mr. Hoffman before any court can fairly review

the constitutionality of his execution in this manner.

As explained herein, the standard for a preliminary injunction is met and injunctive relief

is needed to prevent the State from executing Mr. Hoffman without first addressing and resolving

through proper litigation his legitimate constitutional and statutory claims. There is no legitimate

reason why Mr. Hoffman’s execution should take place before his claims can feasibly be heard by

this Court. Mr. Hoffman will, of course, agree to proceed with expedited discovery, expedited

briefing and a preliminary injunction hearing. The State should not be rewarded for its dilatory

tactics and brazen attempt to summarily execute Mr. Hoffman while seeking to deny him the basic

access and information necessary to challenge the State’s forced nitrogen gassing method.

II.

BACKGROUND

In 2012, Mr. Hoffman initiated the Related Case pursuant to 42 U.S.C. § 1983 for

violations and threatened violations of his rights under the First, Sixth, Eighth and Fourteenth

Amendments, and ex post facto clause, to the United States Constitution. See 12-796 Rec. Doc.

118 (Second Am. Compl. dated February 3, 2014). The other Plaintiffs intervened in the action

commenced by Mr. Hoffman. See 12-796 Rec. Docs. 120 (Code), 201 (Wessinger, Irish), 210

(Blank), 222 (Tyler), and 252 (Reeves, Bell, Tart, Broadway).

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At the time of filing, Louisiana law provided that “[e]very sentence of death executed on

or after September 15, 1991, shall be by lethal injection; that is, by the intravenous injection of a

substance or substances in a lethal quantity into the body of a person convicted until such person

is dead.” La. R.S. § 15:569(B) (West 2024 (effect. 8/15/2015)). Mr. Hoffman’s original Complaint

was filed after the Department of Public Safety and Corrections (“DOC”) repeatedly denied access

to its execution protocol. It contained allegations that, inter alia, lack of notice as to how he would

be executed violated due process. 12-796 Rec. Doc. 1, at 10. The current protocol denial is much

more prejudicial to Mr. Hoffman because death by nitrogen gassing is a new execution method

with which Louisiana has no experience.

Mr. Hoffman’s due process and related Sixth

Amendment claims arise from the totality of circumstances faced by Mr. Hoffman, including the

withholding of the protocol and the State’s prejudicial dilatory tactics.

On August 12, 2021, Defendants filed a Motion to Dismiss, contending that the DOC

“ha[d] no ability to obtain the lethal injection drugs authorized by [the DOC’s] current protocol

nor any other potential lethal injection drugs in the foreseeable future.” 12-796 Rec. Doc. 263-1,

at 4. In response to the Defendants’ Motion, the Court determined that “Defendants are no longer

engaging in the behavior the Plaintiffs have deemed unconstitutional in their lawsuit allegations,”

and, “[t]here being no live controversy,” the Court determined that it “lacks subject-matter

jurisdiction” and granted Defendants’ motion, dismissing Plaintiffs’ claims “without prejudice.”

12-796 Rec. Doc. 312, at 22-23. The Court further noted, however, that “[i]ndeed, if a live

controversy re-emerges [through legislation or revisions to the execution protocol], Plaintiffs may

employ the same procedural mechanisms they have previously used to seek the relief they desire.”

Id. at 21. Plaintiffs filed a Motion for Reconsideration, 12-796 Rec. Doc. 315, which the Court

denied. 12-796 Rec. Doc. 317. In that Ruling, the Court noted that “[i]f Attorney General Landry

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is somehow successful in the future at accomplishing that which has yet to be accomplished by the

legislature – an alternative means of execution in Louisiana, Plaintiffs and Defendants will have

an entirely different execution protocol over which to litigate.” Id.

On March 5, 2024, at the urging of now Governor Landry, the Louisiana Legislature passed

Act 5 of the Second Extraordinary Session of 2024, amending La. R.S. § 15:569-70 to add two

new methods of execution in addition to lethal injection – nitrogen gas and electrocution – effective

July 1, 2024:

At the discretion of the secretary of the Department of Public Safety

and Corrections and with no preference to the method of execution,

every sentence of death shall be by one of the following methods:

(1) Intravenous injection of a substance or substances in a lethal

quantity into the body.

(2) Nitrogen hypoxia.

(3) Electrocution, causing to pass through the body of the person

convicted a current of electricity of sufficient intensity to cause

death, and the application and continuance of such current through

the body of the person convicted until such person is dead.

La. R.S. § 15:569(A) (West 2024 (effect. 7/1/24)).

Further, La. R.S. § 15:570 now provides for “the absolute confidentiality” of persons or

entities involved in the execution:

(G)

It is the intent of the legislature that the provisions of this

Subsection shall be construed to ensure the absolute confidentiality

of the identifying information of any person, business, organization,

or other entity directly or indirectly involved in the execution of a

death sentence within this state. This confidentiality provision shall

prevail over any conflicting provision in state law related to public

disclosure.

(1)

Except as provided in Subsection F of this Section,

the identity of any person who participates in or performs

ancillary functions in the execution process, including a

person or business that delivers, dispenses, distributes,

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supplies, manufactures, or compounds the drugs, equivalent

drug products, pharmacy generated drugs, device drugs,

medical supplies, medical equipment, or other supplies or

materials intended for use by the Department of Public

Safety and Corrections in the administration of an execution

shall be confidential and shall not be disclosed.

La. Rev. Stat. § 15:570(G) (2024).

As a result of the amendments of § 15:569-70, on June 14, 2024, Plaintiffs filed a Motion

pursuant to Fed. R. Civ. P. 60(b)(6) to return the Related Case to the active docket (the “60(b)(6)

Motion”). The State opposed the 60(b)(6) Motion. 12-796 Rec. Doc. 327.

On February 10, 2025, Governor Landry announced that the DOC has finalized and

implemented an updated protocol for nitrogen hypoxia. 12-796 Rec. Doc. 335-2. The updated

protocol announced by Governor Landry has not been publicly released and has not been provided

to Mr. Hoffman or his counsel despite a specific request that it do so. “Department Regulation No.

C-03-001,” dated March 12, 2014, is the most recent execution protocol disclosed to Plaintiffs

(“2014 Execution Protocol”), 2 but it does not address execution by nitrogen hypoxia.

On the same day, Plaintiffs filed a motion for leave to file an Emergency Supplemental

Memorandum in support of the 60(b)(6) Motion in order to bring to the Court’s attention the recent

developments. 12-796 Rec. Doc. 331.

On February 12, 2025, the State obtained a Warrant for Mr. Hoffman’s execution signed

by Judge Alan Zaunbrecher of the 22nd Judicial District Court for the Parish of St. Tammany. Ex.

A. The Warrant provides for Mr. Hoffman to be “put to death on March 18, 2025, between the

hours of 6:00 p.m. and 11:59 p.m.” Id. at 2. The Warrant does not indicate a particular method of

execution, but instead, merely states: “in the manner provided by law.” Id.

The 2014 Protocol is available at https://dpic-cdn.org/production/documents/2014.03.14.LA.

protocol.pdf?dm=1683576299.

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On February 13, 2025, Mr. Hoffman filed a motion to recall the warrant in state court based

on the now present case in controversy and then pending motion to re-open the Related Case. The

state court denied the recall motion by February 18, 2025, order without opinion.

On February 14, 2025, Plaintiffs filed a Motion for Expedited Consideration of the 60(b)(6)

Motion. 12-796 Rec. Doc. 336. Defendants took no position on the request for expedited

consideration but continued to oppose reopening this case. Id.

By letter dated February 20, 2025, the DOC’s Secretary, Gary E. Wescott, sent a copy of

the Warrant to Mr. Hoffman and notified Mr. Hoffman that “[p]ursuant to La. R.S. § 15:569, the

method of execution will be by nitrogen hypoxia.” Ex. B. at 1.

On February 21, 2025, the Court granted the Rule 60(b)(6) Motion, vacated the prior order

of dismissal and returned the Related Case to the active docket. 12-796 Rec. Doc. 337. The State

thereafter filed a petition for writ of mandamus to the United States Court of Appeals for the Fifth

Circuit, which entered an administrative stay of the order granting the Rule 60(b)(6) Motion. In re

Gary Westcott, et al., No. 25-30088, Doc. 16-1 (5th Cir.).

Mr. Hoffman filed his Complaint in this case on February 25, 2025. This Motion follows.

Mr. Hoffman is now scheduled to be executed in just twenty days. The State has by its own

admission finalized and implemented an updated nitrogen asphyxiation execution protocol, but

has refused to disclose it. The State’s strategy appears to be to rush to execute Mr. Hoffman and

deny him his day in Court. It is axiomatic that Mr. Hoffman cannot possibly challenge the method

of his execution appropriately without receiving a copy of the protocol and having an opportunity

for expedited and limited discovery to understand and develop the full details regarding the manner

in which the State plans to kill him, as well as the sufficiency of the steps undertaken to implement

the execution in a constitutional manner. Developing these facts is particularly important now

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given the fact that Louisiana has never before utilized forced nitrogen gassing to execute someone,

combined with the evidence from Alabama that recent executions by nitrogen gassing have caused

horrific and torturous pain and suffering.

After over a decade with no executions, the State is now trying to rush to execute Mr.

Hoffman, in the dark, and block Mr. Hoffman’s opportunity to raise life-and-death federal

constitutional and statutory claims. It appears that the State is trying to run out the proverbial

clock, not only on Mr. Hoffman, but on this Court, denying the parties and the Court the time to

handle these novel issues in a manner that would allow a ruling on a well-developed record.

III.

Death By Nitrogen Gassing

Louisiana has never executed or attempted to execute a condemned inmate by nitrogen

gassing. Nor has the federal government. The fact is, despite its scientific-sounding name,

“nitrogen hypoxia” as a method of execution was not conceived by scientists or doctors. Instead,

it was the idea of a few criminal law professors. In 2014, Professors Michael Copeland, Christine

Pappas, and Thomas Parr at Oklahoma’s East Central University co-authored a 14-page white

paper in which they advocated for the use of forced nitrogen gas asphyxiation (which they called

“nitrogen hypoxia”) 3 over lethal injection. See Michael Copeland, Thom Parr, and Christine Papas,

Nitrogen Induced Hypoxia as a Form of Capital Punishment (2014). At the time, Oklahoma was

under fire for multiple botched executions using lethal injection. In September 2014, Mike

Christian of Oklahoma’s House of Representatives invited Copeland to present his research to the

The term “nitrogen hypoxia” itself reflects the method’s non-medical origin. The word “hypoxia”

means “low oxygen.” It does not describe a process, but rather a state of being. A medical

professional would instead describe this execution method as “asphyxiation”—i.e., the process of

being deprived of oxygen.

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Oklahoma House Judiciary Committee. 4 Soon thereafter, in February 2015, Rep. Christian

introduced House Bill 1879 to authorize “nitrogen hypoxia” as a legal alternative to lethal

injection. The bill sailed through the Oklahoma state legislature (without expert review), and

Governor Mary Fallin signed HB 1879 into law just over two months from its introduction.

Oklahoma thereby became the first state to sanction execution by forced nitrogen gas asphyxiation,

though it has yet to utilize this method.

Alabama is the only state to execute people by forced nitrogen gassing. 5 According to

eyewitness accounts, all four nitrogen gas executions conducted by the state of Alabama have

included observations of extreme suffering. Ex. C Declaration of Philip E. Bickler, M.D., PhD

(“Bickler Decl.”) at 2. In January 2024, the Alabama Department of Corrections (“ADOC”)

executed Kenneth Smith by nitrogen gassing. This involved strapping Mr. Smith to a gurney,

fitting him with a respirator mask connected to nitrogen gas, and then forcing him to breath

nitrogen gas. 6

After ADOC started the flow of nitrogen gas, Mr. Smith started “to convulse and shake

vigorously for about four minutes. . . . It was another two to three minutes before he appeared to

lose consciousness, all while gasping for air to the extent that the gurney shook several times.” 7

Jack Shuler, “Can Executions Be More Humane?,” Atlantic (March 20, 2015),

https://www.theatlantic.com/politics/archive/2015/03/can-executions-be-more-humane/388249/.

Nicholas Bogel-Burroughs & Abbie VanSickle, Alabama Carries Out First U.S. Execution by

Nitrogen, N.Y. Times (Jan. 25, 2024), www.nytimes.com/2024/01/25/us/alabama-nitrogenexecution-kenneth-smith.html.

See Ala. Dep’t of Corrections Execution Procedures (Aug. 2023), at 15–17, https://dpiccdn.org/production/documents/Al_Lethal_Gas_Execution_Protocol_2023_08.pdf?dm=16939384

90.

Marty Roney, Nitrogen Gas Execution: Kenneth Smith Convulses for Four Minutes in Alabama

Death Chamber, Montgomery Advertiser (Jan. 25, 2024), www.montgomeryadvertiser.com/

story/news/local/alabama/2024/01/25/four-minutes-of-convulsions-kenneth-smith-executedwith-nitrogen-gas/72358038007/.

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Media witness Lee Hedgepeth recounted that Mr. Smith’s head moved back and forth

violently in the minutes after the execution began. Having witnessed four other executions, Mr.

Hedgepeth stated that he had “never seen such a violent reaction to an execution.” 8

Mr. Smith’s spiritual advisor was also present in the execution chamber and described the

scene: “[W]e didn’t see someone go unconscious into two or three seconds. We didn’t see

somebody go unconscious in 30 seconds. What we saw was minutes of someone struggling for

his life. We saw minutes of someone heaving back and forth. We saw spit. We saw all sorts of

stuff develop from his mask.” 9

The victim’s son, Mike Sennett, stated that he was told by prison personnel that Mr. Smith

would “take two or three breaths and he’d be out and gone.” 10 However, he described: “That ain’t

what happened. After about two or three breaths, that’s when the struggling started. Other people

kept saying he was trying to raise himself up. . . . With all that struggling and jerking and trying

to get off that table, more or less, it’s just something I don’t ever want to see again.” 11 Twentyseven minutes after ADOC started the flow of gas, Mr. Smith was declared dead. 12

The three other nitrogen gas executions carried out by ADOC were similar. On September

26, 2024, ADOC executed Alan Eugene Miller by nitrogen gas. According to reports, Mr. Miller

Nicholas Bogel-Burroughs & Abbie VanSickle, Alabama Carries Out First U.S. Execution by

Nitrogen, N.Y. Times (Jan. 25, 2024), www.nytimes.com/2024/01/25/us/alabama-nitrogenexecution-kenneth-smith.html.

Ralph Chapoco, Kenneth Eugene Smith Executed by Nitrogen Gas for 1988 Murder-for-Hire

Scheme, Alabama Reflector (Jan. 25, 2024), https://alabamareflector.com/2024/01/25/kennetheugene-smith-executed-by-nitrogen-gas-for-1988-murder-for-hire-scheme/.

Nicholas Bogel-Burroughs, A Select Few Witnessed Alabama’s Nitrogen Execution. This Is

What They Saw, N.Y. Times (Feb. 1, 2024), www.nytimes.com/2024/02/01/us/alabama-nitrogenexecution-kenneth-smith-witnesses.html.

Id.

Roney, supra note 14.

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“shook and trembled on a gurney for about two minutes, with his body at time pulling against

restraints. . . . The shaking and trembling was followed by about six minutes of periodic gulping

breaths before he became still.” 13 According to media witness Marty Roney, “Miller gasped,

shook and struggled against his restraints for two minutes after the gas apparently began to flow.” 14

Media witness Ivana Hrynkiw noted that Mr. Miller took deep breaths after the gas began to flow

and lifted his head off the gurney several times, then gasped on and off for six minutes. 15

Mr. Miller’s spiritual adviser John Muench, who is also a physician, said of the execution:

“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.” 16 Muench also noted that he had no question that Mr. Miller

suffered: “I’m sure he was suffering certainly at the beginning of it, when he was gasping for

oxygen. When he lifted his head up and I could see him, he was definitely gasping.” 17 Muench

observed Mr. Miller shaking on the gurney: “I didn’t feel like there would be anything possible

that I could do, but I very much felt, when he started jerking, that we need – we should stop this at

Michelle Watson & Jason Hanna, Alabama Has Executed Alan Eugene Miller, the Second

Inmate Known to Die by Nitrogen Gas, CNN (Sept. 26, 2024), www.cnn.com/2024/09/26/us/alaneugene-miller-alabama-execution/index.html.

Marty Roney, Alabama executes Alan Eugene Miller with nitrogen gas, Montgomery Advertiser

(Sept.

26,

2024

7:45

PM),

https://www.montgomeryadvertiser.com/story/news/crime/2024/09/26/alabama-executes-alaneugene-miller-with-nitrogen-gas/75360739007/.

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-inmatealan-miller-set-to-be-executed-with-nitrogen-gas-thursday-for-1999-shootings.html.

Lauren Gill, “Agony” and “Suffering” as Alabama Experiments with Nitrogen Executions,

Bolts (Oct. 8, 2024), https://boltsmag.org/alabama-nitrogen-executions/.

Id.

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some point.” 18 Twenty-two minutes after the gas apparently began to flow, Mr. Miller was

declared dead. 19

On November 21, 2024, ADOC executed Carey Dale Grayson by nitrogen gas. During the

approximately six minutes it took for Mr. Grayson to lose consciousness, he “tightly clenched his

hands, took deep gasps, shook his head vigorously and pulled against his restraints.” 20 Media

witness Kim Chandler observed that “Grayson rocked his head, shook and pulled against the

gurney restraints.” 21 His hands were “tightly clenched [and he] took several deep gasps, shaking

his head vigorously.” 22 Mr. Grayson’s “sheet-wrapped legs lifted off the gurney into the air. . . .

He took a periodic series of more than a dozen gasping breaths for several minutes.” 23

Dr. Brian McAlary witnessed Mr. Grayson’s execution and testified in Demetrius Frazier’s

federal court challenge to the method. 24 He is the first medical doctor to testify about observations

Id.

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-inmatealan-miller-set-to-be-executed-with-nitrogen-gas-thursday-for-1999-shootings.html.

Marty Roney et al., Carey Dale Grayson Executed in Alabama in Hiker’s Murder; 3rd Nitrogen

Gas

Execution

US,

USA

Today

(Nov.

21,

2024),

www.usatoday.com/story/news/nation/2024/11/21/carey-dale-grayson-execution-alabamanitrogen-gas/76489211007/.

Kim Chandler, Alabama carries out nation’s third nitrogen gas execution on a man for

hitchhiker’s killing, Associated Press (Nov. 22, 2024 7:15 AM), https://apnews.com/article/deathpenalty-nitrogen-execution-alabama-09450359e223a9d38a5fb24e87fcfb45.

Marty Roney, Alabama executes Carey Dale Grayson by nitrogen gas for brutal 1999 murder,

Montgomery

Advertiser

(Nov.

21,

2024

7:48

PM),

https://www.montgomeryadvertiser.com/story/news/crime/2024/11/21/alabama-executes-careydale-grayson-by-gas-for-brutal-1999-murder/76465482007/.

Kim Chandler, Alabama carries out nation’s third nitrogen gas execution on a man for

hitchhiker’s killing, Associated Press (Nov. 22, 2024 7:15 AM), https://apnews.com/article/deathpenalty-nitrogen-execution-alabama-09450359e223a9d38a5fb24e87fcfb45.

Kim Chandler & Safiyah Riddle, Federal judge hears request to block an upcoming nitrogen

gas execution in Alabama, Associated Press (Jan. 28, 2025 6:32 PM),

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during a nitrogen execution. 25 McAlary testified that there was clear “evidence of distress,” that

Mr. Grayson moved his head back and forth, had rapid eye movements, and struggled against his

restraints. 26 McAlary believed that Mr. Grayson’s last voluntary movement occurred about three

minutes after gas began flowing, when Mr. Grayson simultaneously raised both legs and held them

in the air before letting them fall down. 27 McAlary believed this was voluntary because “both legs

were moved at exactly the same time, direction, and distance.” 28 Twenty-one minutes after ADOC

appeared to begin the flow of gas, Mr. Grayson was declared dead. 29

And on February 6, 2025, ADOC used nitrogen gas to execute Demetrius Frazier. As the

nitrogen gas flowed, Mr. Frazier “appeared to struggle to breathe and seemed to clench the muscles

in his face. . . . [Mr.] Frazier’s legs appeared to tense and raise a few inches off of the gurney, with

his head seemingly lolling to the side. His arms seemed to tighten and fists clenched.” 30 Media

witnesses observed Mr. Frazier waving his hand in circles. 31 Mr. Frazier “clenched his face, and

https://apnews.com/article/nitrogen-gas-execution-alabama-hearing-demetrius-frazier7a222a9654da01125192d1c4b893fdca.

Id.

Kent Faulk, Alabama executes Carey Dale Grayson by nitrogen gas for 1994 murder, AL.com

(Nov. 21, 2024 11:43 PM), https://www.al.com/news/2024/11/live-updates-alabama-set-toexecute-carey-dale-grayson-by-nitrogen-gas-for-1994-murder.html.

Sarah Clifton, Alabama Executes Demetrius Frazier by Nitrogen Gas for 1991 Murder, USA

Today (Feb. 6, 2025), www.usatoday.com/story/news/local/alabama/2025/02/06/alabamaexecutes-demetrius-frazier-by-nitrogen-gas-for-1991-murder/78282236007/.

See Kim Chandler, Alabama puts man to death for a 1991 murder in the nation’s fourth

execution using nitrogen gas, Associated Press (Feb. 6, 2025 10:17 PM),

https://apnews.com/article/alabama-execution-demetrius-frazier-nitrogen-gase1b391e1e157f2815be1baa248737778; Riley Conlon & Taylor Lang, “Detroit Strong”: Alabama

carries out execution of inmate in Michigan’s custody, WVTM13 (Feb. 10, 2025 3:32 PM),

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his nostrils flared, while his hands quivered. He appeared to say something . . . . His legs slightly

lifted up off the gurney and he gasped. Then, his head rolled to the right side. Frazier exhibited

sporadic gasping and shallow breathing . . .” 32 He appeared to “quiver and twitch,” “struggle to

breathe”, and “breathe sporadically, with seemingly inconsistent amounts of time between breaths,

and apparently slightly shuddering.” 33 Approximately twenty-five minutes after the gas began

flowing, Mr. Frazier was declared dead. 34

IV.

ARGUMENT

Legal Standard

The purpose of a preliminary injunction “is merely to preserve the relative positions of the

parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395

(1981). The primary reason to grant a preliminary injunction is “to preserve the court’s power to

render a meaningful decision after a trial on the merits.” 11A Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 2947, at 112, 114 (3d ed. 2013).

“[P]reliminary injunctions are ‘customarily granted on the basis of procedures that are less formal

and evidence that is less complete than in a trial on the merits.” Attorney General of Oklahoma v.

https://www.wvtm13.com/article/alabama-inmate-execution-michigan-lawsuit1738878056/63692646.

Ivana Hrynkiw, Alabama inmate Demetrius Frazier executed by nitrogen gas for 1991

Birmingham

slaying:

“Let’s

go”,

AL.com

(Feb.

2025

8:27

PM),

https://www.al.com/news/2025/02/alabama-inmate-demetrius-frazier-set-to-die-by-nitrogenmichigan-governor-hasnt-acted.html.

Sarah Clifton, Alabama executes Demetrius Frazier by nitrogen gas for 1991 murder,

Montgomery

Advertiser

(Feb.

2025

8:46

PM),

https://www.montgomeryadvertiser.com/story/news/local/alabama/2025/02/06/alabamaexecutes-demetrius-frazier-by-nitrogen-gas-for-1991-murder/78282236007/.

Ivana Hrynkiw, Alabama inmate Demetrius Frazier executed by nitrogen gas for 1991

Birmingham

slaying:

“Let’s

go”,

AL.com

(Feb.

2025

8:27

PM),

https://www.al.com/news/2025/02/alabama-inmate-demetrius-frazier-set-to-die-by-nitrogenmichigan-governor-hasnt-acted.html.

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Tyson Foods, Inc., 565 F.3d 769 (10th Cir. 2009) (quoting Univ. of Texas v. Camenisch, 451 U.S.

390, 395 (1981)). For that reason, the moving party is not required to “prove his case in full at a

preliminary injunction hearing.” Id. (quoting Camenisch, 451 U.S. at 395).

To be entitled to a preliminary injunction, generally, a party should demonstrate that (1)

they will likely succeed on the merits of their claim(s); (2) without preliminary relief, they will

likely suffer irreparable harm; (3) “the balance of the equities tips in [their] favor”; and (4) “an

injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

(2008). Any of the four factors may provide a reason for this Court to enter or deny an injunction.

The same factors apply for a stay of execution. Hill v. McDonough, 547 U.S. 573, 584 (2006)

(explaining that “like other stay applicants, inmates seeking time to challenge the manner in which

the State plans to execute them must satisfy all of the requirements for a stay, including a showing

of a significant possibility of success on the merits”). Where the other factors are strong, “it is not

even necessary that a substantial likelihood of success be shown…a showing of some likelihood

of success on the merits will justify temporary injunctive relief.” Productos Carnic, S.A. v. Central

Amer. Beef and Seafood Trading Co., 621 F.2d 683, 686 (5th Cir. 1980). In particular, “the

likelihood-of-success element varies with the relative harm occasioned to the parties from the

issuance vel non of the injunction.” Bluebonnet Savings Bank v. Office of Thrift Supervision, 62

F.3d 397, 397 (5th Cir. 1995).

The Fifth Circuit has not explicitly adopted a standard to determine whether a party is

entitled to conduct expedited discovery, but “many district courts within the Fifth Circuit have

chosen to apply the ‘good cause’ standard.” Yogaratnam v. Doe, No. 24-393, U.S. Dist. LEXIS

210774, at *11 (E.D. La. Nov. 19, 2024); see also Planned Parenthood Gulf Coast, Inc. v. Gee,

2018 U.S. Dist. LEXIS 248849, at *50 (M.D. La. May 23, 2018). Pursuant to that standard, “good

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cause” exists where “the need for expedited discovery, in consideration of the administration of

justice, outweighs the prejudice to the responding party.” Id. Courts in this circuit have found the

requisite good cause exists where “the normal course of discovery would not provide enough time

to conduct the discovery prior to the Court’s consideration of [a] motion for preliminary

injunction.” Doe v. Marine-Lombard, No. 16-14876, 2016 U.S. Dist. LEXIS 156156, at *9 (E.D.

La. Nov. 10, 2016). Mr. Hoffman meets this standard for the entry of a preliminary injunction to

prevent Mr. Hoffman’s execution before his substantial legal challenges may be heard on a proper

record.

Mr. Hoffman Has a Substantial Likelihood of Success on His Claims.

1. Mr. Hoffman Has a Substantial Likelihood of Success on His Eighth

Amendment Claim

The Eighth Amendment forbids the State, in carrying out a death sentence, from inflicting

pain beyond that necessary to end the condemned prisoner’s life. In re Kemmler, 136 U.S. 436,

447 (1890). “Punishments are cruel when they involve torture or a lingering death . . . something

more than the mere extinguishment of life.” Id.; see also Baze v. Rees, 553 U.S. 35, 50 (2008)

(execution violates the Eighth Amendment if it presents a “substantial risk of serious harm”).

A condemned prisoner challenging a method of execution must show the method creates a

“demonstrated risk of severe pain” that is “substantial when compared to the known and available

alternatives.” Baze, 555 U.S. at 61. A “substantial risk of conscious suffocation can create an

Eighth Amendment problem regardless of the method of execution being used.” Grayson v.

Comm’r, Ala. Dep’t of Corr., 121 F.4th 894, 898 (11th Cir. 2024). A prisoner’s proposed

alternative need not be authorized by state law. Bucklew v. Precythe, 578 U.S. 119, 153 (2019)

(Kavanaugh, J., concurring).

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To prevail on his Eighth Amendment claim, Mr. Hoffman must show that there is a

“substantial risk of serious harm” or an “objectively intolerable risk of harm” when compared to

an alternative method of execution to the state’s protocol that is “feasible, readily implemented,

and in fact significantly reduce[s] a substantial risk of severe pain.” Glossip, 576 U.S. at 876

(quoting Baze, 553 U.S. at 50, 52). A “substantial risk of serious harm” may occur when the method

of execution involves “torture or a lingering death,” Baze, 553 U.S. at 49, or the “‘superaddition’

of ‘terror, pain, or disgrace.’” Bucklew, 587 U.S. at 133 (quoting Baze, 553 U.S. at 48).

Mr. Hoffman is likely to succeed on his claim that death by forced nitrogen gassing will

violate his rights under the Eighth Amendment. While Defendants have not yet disclosed the

execution protocol and much of the information that will be needed to adjudicate Mr. Hoffman’s

claims, as part of a run-out-the-clock strategy, Mr. Hoffman can demonstrate a likelihood of

success even on what little has been disclosed up to now.

The Eighth Amendment forbids “deliberate indifference” to “serious medical needs of

prisoners,” Estelle v. Gamble, 429 U.S. 97, 104 (1976), and to a substantial risk of serious harm to

a prisoner. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also West v. Atkins, 487 U.S.

42, 58 (1988) (“[A] physician who acts on behalf of the State to provide needed medical attention

to a person involuntarily in state custody (in prison or elsewhere) and prevented from otherwise

obtaining it, and who causes physical harm to such a person by deliberate indifference, violates

the [Constitution’s] protection against the deprivation of liberty without due process.”) (Scalia, J.,

concurring). The State is required to provide Mr. Hoffman with appropriate medical care until the

moment of death and, thus, the Eighth Amendment’s proscription against “deliberate indiffe

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