Petition for Writ of Certiorari — Anthony Darrell Dugard Hines, Petitioner v. Tennessee
Supreme Court briefAug 9, 2026
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No.
IN THE
Supreme Court of the United States
________________
ANTHONY DARRELL DUGARD HINES,
Petitioner,
v.
STATE OF TENNESSEE,
________________
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE TENNESSEE SUPREME COURT
________________
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
EXECUTION SCHEDULED FOR AUGUST 13, 2026 AT 10:00 A.M.
_______________
ELIJAH SWINEY
Research & Writing Specialist
DREW S. BRAZER
KATHERINE M. DIX
MARSHALL A. JENSEN*
Asst. Federal Public Defenders
KIT THOMAS
Deputy Chief, Capital Habeas Unit
Federal Public Defender, Middle District of
Tennessee
164 Rosa L. Parks Blvd
Nashville, TN 37203
Phone: (615) 736-5047
Fax:
(615) 736-5265
Email: Marshall_Jensen@fd.org
*Counsel for Petitioner
2
TABLE OF CONTENTS
Appendix Description
Page No.
A. Aug. 6, 2026 Order denying Special Master .................................................. A-1
B. July 20, 2026 Motion to Amend Order ........................................................... A-8
C. July 27, 2026 State’s Response in Opposition to Motion............................. A-63
D. July 27, 2026 Reply in Support of Motion to Amend Order ........................ A-96
E. Motion to Amend Order, Ex. 2 – Complaint Excerpts ................................A-126
F. Motion to Amend Order, Ex. 5 – Protocol Excerpts ....................................A-160
G. Motion to Amend Order, Ex. 12 and Plaintiff’s Motion to Compel (Chancery
Court for Davidson County, Tennessee), Ex. 2 – Physician Deposition
Excerpts (Redacted) .....................................................................................A-163
H. Motion to Amend Order, Ex. 13 – Declaration of DeLiberato ....................A-173
I. Reply in Support of Motion to Amend Order, Ex. 1 – Declaration of Van
Norman .........................................................................................................A-180
J. State v. Pike, Tennessee Supreme Court No. M2020-01156-SC-DPE-DD, Aug.
10, 2026 Order ..............................................................................................A-223
K. IN RE: Amended of Tennessee Supreme Court Rule 12.4(E), No. ADM202501930 (Dec. 5, 2025) .....................................................................................A-226
APPENDIX A
08/06/2026
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE v. ANTHONY DARRELL DUGARD HINES
Circuit Court for Cheatham County
No. 9852
___________________________________
No. M2025-00221-SC-DPE-DD
___________________________________
ORDER
In June 1989, Anthony Darrell Dugard Hines was sentenced to death for the 1985
murder of Catherine Jean Jenkins.1 Almost four decades later, Mr. Hines is scheduled to
be executed on August 13, 2026. Less than a month before his execution, Mr. Hines has
filed a motion asking this Court either to amend its September 30, 2025 Order setting his
execution date to prohibit the Tennessee Department of Correction (“TDOC”) from
carrying out his execution “without first replacing Physician A with an appropriately
skilled and qualified physician” or to grant him “a special master proceeding so that he
may prove his likelihood of success on the merits of his chancery court Claim 1.2, as it
narrowly pertains to the State’s apparent intention to rely on Physician A in his upcoming
execution.” Upon due consideration, Mr. Hines’s motion is denied.
I. PROCEDURAL BACKGROUND
On March 3, 1985, Anthony Darrell Dugard Hines killed Catherine Jean Jenkins
(“the victim”), a maid at the Ce’Bon Motel in Kingston Springs, Tennessee. The victim
suffered multiple stab wounds to her chest, vagina, and abdominal cavity. Mr. Hines was
charged with murder, and the State sought the death penalty. A jury convicted Mr. Hines
of murder and sentenced him to death based on three statutory aggravating circumstances.
On direct appeal, the murder conviction was affirmed, but the sentence of death was set
aside due to instructional error. State v. Hines, 758 S.W.2d 515, 524 (Tenn. 1988)
(remanding for a new sentencing hearing). After a resentencing hearing in June 1989, a
jury again imposed a sentence of death based on three aggravating circumstances. State v.
Hines, 919 S.W.2d 573, 576–77 (Tenn. 1995), reh’g denied, (Tenn. Mar. 11, 1996), cert.
denied, 519 U.S. 847 (1996). This Court affirmed. Id. at 584. Over the next two decades,
1
Ms. Jenkins’ family informed the State that her name is spelled “Catherine” despite prior
misspellings in various court documents.
A-1
APPENDIX A
Mr. Hines unsuccessfully sought relief from his conviction and sentence in state postconviction and federal habeas corpus proceedings.2
Mr. Hines also filed lawsuits challenging the constitutionality of the method by
which he would be executed. In January 2025, TDOC adopted a revised single-drug lethal
injection execution protocol that utilizes a single dose of pentobarbital (“the 2025
protocol”). On February 14, 2025, the State moved to set an execution date for Mr. Hines,
citing his completion of the standard three-tier review. On March 14, 2025, Mr. Hines and
eight other death-row inmates filed a declaratory judgment action in the Chancery Court
for Davidson County (“the chancery court”) challenging the constitutionality of the 2025
protocol. Complaint, Burns v. Strada, No. 25-0414-IV (Davidson Cnty. Ch. Mar. 14, 2025)
(“Complaint”).3 The inmates raised four claims challenging the constitutionality of the
2025 protocol under the Eighth Amendment to the United States Constitution and Article
I, sections 16 and 32 of the Tennessee Constitution.
On September 30, 2025, this Court entered an order setting Mr. Hines’s execution
for August 13, 2026. Meanwhile, Mr. Hines’s declaratory judgment action remained
pending in the chancery court. A bench trial was set for April 2026 but was cancelled, with
no new trial date set.
On May 21, 2026, TDOC undertook to execute death-row inmate Tony Carruthers
by lethal injection pursuant to the 2025 protocol. Regarding the setting of IV lines, the
2025 protocol provides:
2
See Hines v. State, No. M2002-01352-CCA-R3-PD, 2004 WL 112876, at *1, 39 (Tenn. Crim.
App. Jan. 23, 2004), perm. app. granted, (Tenn. June 28, 2004) (remanding to the Court of Criminal
Appeals to verify that the trial court used the correct version of the “heinous, atrocious, or cruel”
aggravating circumstance in its instruction to the sentencing jury); Hines v. State, No. M2004-01610-CCARM-PD, 2004 WL 1567120, at *1, 37–39 (Tenn. Crim. App. July 14, 2004), perm. app. denied, (Tenn.
Nov. 29, 2004) (affirming jury’s consideration of proper version of aggravating circumstance); Hines v.
State, No. M2006-02447-CCA-R3-PC, 2008 WL 271941, at *1, 8 (Tenn. Crim. App. Jan. 29, 2008), perm.
app. denied, (Tenn. Dec. 8, 2008), cert. denied, 558 U.S. 837 (2009) (affirming denial of petition for DNA
testing); Hines v. Carpenter, No. 3:05-0002, 2015 WL 1208684, at *3–4, 86 (M.D. Tenn. Mar. 16, 2015)
(denying habeas corpus petition following two administrative closures); Hines v. Carpenter, No. 3:05-0002,
2015 WL 5037845, at *3 (M.D. Tenn. Aug. 25, 2015) (denying motion to alter or amend); Hines v.
Carpenter, No. 3:05-0002, 2015 WL 5715453, at *1–5, 7–8 (M.D. Tenn. Sep. 29, 2015) (amending issues
included in the certificate of appealability following remand from Sixth Circuit Court of Appeals); Hines
v. Mays, 814 F. App’x 898, 901 (6th Cir. 2020) (per curiam), rev’d, 592 U.S. 385, 386 (2021) (per curiam)
(reversing grant of relief based on ineffective assistance of counsel).
3
The complaint originally included the following plaintiffs: Kevin Burns, Byron Black, Jon Hall,
Kennath Henderson, Anthony Darrell [Dugard] Hines, Henry Hodges, Farris Morris, William Glenn
Rogers, and Oscar Smith. Plaintiffs Smith and Black have since been executed under the 2025 protocol.
2
A-2
APPENDIX A
IV TEAM
The IV team is responsible for establishing properly functioning IV lines for
administration of the LIC [Lethal Injection Chemicals].
PHYSICIAN
The Physician is responsible for determining that the inmate is deceased
using accepted medical standards and establishing central line IV access if
necessary.
...
1. IV Team: consists of at least two members who are either physicians,
physician assistants, nurses, emergency medical technicians (“EMTs”),
paramedics, military corpsman with relevant medical training, or other
certified or licensed personnel including those trained in the United States
Military. All team members are currently certified, licensed and/or qualified
within the United States to place IV lines. IV Team members are selected by
the Commissioner.
2. The Physician is selected by the Commissioner.
...
5. The IV Team determines the IV sites. The IV Team members insert a
primary IV catheter and a backup IV catheter. The primary IV catheter is
used to administer the LIC. The backup catheter is reserved in case the
primary fails.
6. The Special Operations Team Leader ensures that the catheters are
properly secured, properly connected to the IV lines, and out of reach of the
inmate’s hands. The Special Operations Team Leader opens the IV line to
start a flow of sterile saline solution in each line and administers at a slow
rate to keep the lines open. Any failure of an IV line shall be immediately
reported to the Commissioner.
7. If necessary, the Physician will insert a central line.
2025 Protocol, at 8, 11, 20.
According to the pleadings now before this Court, during the attempted execution
of Mr. Carruthers on May 21, 2026, the IV Team allegedly attempted for thirty minutes to
3
A-3
APPENDIX A
establish a backup IV line. TDOC then called upon Physician A to direct the IV Team’s
efforts. Additional attempts were made to establish a backup IV line, but these efforts were
unsuccessful. Physician A then allegedly attempted to place a central line as provided in
the 2025 protocol but was unable to do so. Approximately one hour into the execution
procedure, counsel for Mr. Carruthers filed an emergency motion for a stay in this Court.
Moments later, Mr. Carruthers received a one-year gubernatorial reprieve, and this Court
subsequently denied the motion for a stay as moot.
On June 17, 2026, Mr. Hines served the defendants in his chancery court declaratory
judgment action with a request for admission, asking TDOC to admit whether it intends to
rely on Physician A for Mr. Hines’s execution. When the defendants lodged objections to
the request for admission, Mr. Hines filed a motion to compel. The chancery court sua
sponte rewrote the request for admission to ask TDOC whether it intended to use the same
physician for Mr. Hines’s execution as it had used for Mr. Carruthers’ attempted execution.
After a hearing on July 16, 2026, the chancery court entered an order on July 17, 2026, that
granted Mr. Hines’s motion as to the modified question but stayed “service of the
[defendants’] response . . . pending resolution of the underlying issues by a higher court
pursuant to an appropriate procedural vehicle” (emphasis added).
Neither Mr. Hines nor the State has pursued an interlocutory or extraordinary appeal
from the chancery court’s order. See Tenn. R. App. P. 9, 10. Instead, on July 20, 2026, Mr.
Hines filed the instant motion in this Court.
Mr. Hines “invites” this Court to review the defendants’ answer to his request for
admission. He moves for a conditional stay of execution if TDOC refuses to replace
Physician A. He states that TDOC should be able to proceed with his August 13, 2026
execution if it replaces Physician A by hiring “an appropriately credentialed replacement
from among the 20,000 active physicians in the State of Tennessee.” Because in his view
his request will not require a stay or delay of his execution, he says no further showing is
required on his part. But if the Court concludes that a further showing is required, Mr.
Hines asserts he can meet the requisite showing if the Court will grant him a special master
proceeding and a conditional stay.
II. ANALYSIS
First, this Court declines Mr. Hines’s invitation to review the chancery court’s
discovery order by exercise of its “inherent power.” As the chancery court recognized, to
the extent its order would be reviewed by a higher court, such review must occur “pursuant
to an appropriate procedural vehicle.” A motion by the prevailing party in the discovery
dispute inviting this Court to exercise inherent authority and review the interlocutory order
is not “an appropriate procedural vehicle.” See Tenn. R. App. P. 9, 10.
Furthermore, to the extent Mr. Hines suggests that Tennessee Supreme Court Rule
4
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APPENDIX A
12(4)(E) creates a “backdoor” avenue for appealing discovery orders issued in lawsuits
challenging the method of execution TDOC has adopted, he is mistaken. Rule 12(4)(E)
states that this Court will not grant an inmate’s motion to stay or delay an execution date
pending resolution of state collateral litigation “unless the prisoner can prove a likelihood
of success on the merits in that litigation.” Tenn. Sup. Ct. R. 12(4)(E). It also provides that,
in certain circumstances, the Court may appoint a special master to conduct fact-finding to
aid the Court in its assessment of a stay motion. See id. (amended Dec. 5, 2025).
Mr. Hines contends the State should be able to accommodate his request for a
physician other than Physician A without delaying his scheduled execution. He says that
he requested a conditional stay only because the Court has indicated that motions under
Rule 12(4)(E) should be accompanied by a motion for a stay. Mr. Hines asserts that he has
shown a likelihood of success on the merits of this claim in the chancery court lawsuit. But
if the Court concludes he has not, Mr. Hines asks for the appointment of a special master
so that he can satisfy the required showing through discovery and litigation in the special
master proceeding. As explained below, we decline to appoint a special master and
conclude that, even taking Mr. Hines’s assertions as true, he has failed to establish a
likelihood of success on the merits or circumstances warranting appointment of a special
master.
A. Likelihood of Success
As stated many times by a multitude of courts, “capital punishment is
constitutional.” Glossip v. Gross, 576 U.S. 863, 869 (2015). And because capital
punishment is constitutional, “there must be a [constitutional] means of carrying it out.”
Id. (alteration in original) (quoting Baze v. Rees, 553 U.S. 35, 47 (2008)). “[T]he Eighth
Amendment ‘does not demand the avoidance of all risk of pain in carrying out
executions.’” Bucklew v. Precythe, 587 U.S. 119, 134 (2019) (quoting Baze, 553 U.S. at
47). “[T]he Eighth Amendment does not guarantee a prisoner a painless death—something
that, of course, isn’t guaranteed to many people, including most victims of capital crimes.”
Id. at 132–33. After all, “[s]ome risk of pain is inherent in any method of execution—no
matter how humane—if only from the prospect of error in following the required
procedure.” Baze, 553 U.S. at 47. If the Eighth Amendment “demand[ed] the elimination
of essentially all risk of pain,” that “would effectively outlaw the death penalty altogether.”
Glossip, 576 U.S. at 869. So, the mere fact that “an execution method may result in pain,
either by accident or as an inescapable consequence of death, does not establish the sort of
‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Baze, 553 U.S.
at 50 (quoting Farmer v. Brennan, 511 U.S. 825, 846 & n.9 (1994)). “To the contrary, the
Constitution affords a ‘measure of deference to a State’s choice of execution procedures’
and does not authorize courts to serve as ‘boards of inquiry charged with determining ‘best
practices’ for executions.’” Bucklew, 587 U.S. at 134 (quoting Baze, 553 U.S. at 51–52 &
nn.2–3). “[W]hen it comes to determining whether a punishment is unconstitutionally cruel
because of the pain involved, the law has always asked whether the punishment ‘superadds’
5
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APPENDIX A
pain well beyond what’s needed to effectuate a death sentence.” Id. at 136–37. “And
answering that question has always involved a comparison with available alternatives, not
some abstract exercise in ‘categorical’ classification.” Id. at 137.
Thus, to bring an Eighth Amendment method-of-execution challenge, a death-row
inmate must: (1) establish that the method of execution “presents a risk that is ‘sure or very
likely to cause serious illness and needless suffering,’ and give[s] rise to ‘sufficiently
imminent dangers,’” Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at 50), and (2)
“identify an alternative [method of execution] that is ‘feasible, readily implemented, and
in fact significantly reduce[s] a substantial risk of severe pain,’” id. (second alteration in
original) (quoting Baze, 553 U.S. at 52). With respect to errors occurring during the
execution process, the United States Supreme Court has remarked that “an isolated mishap
alone does not give rise to an Eighth Amendment violation, precisely because such an
event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise
to a ‘substantial risk of serious harm.’” Baze, 553 U.S. at 50 (quoting Farmer, 511 U.S. at
842). These elements and principles also apply to method-of-execution challenges brought
under article I, sections 16 and 32 of the Tennessee Constitution. West v. Schofield, 519
S.W.3d 550, 567–68 (Tenn. 2017) (first citing Glossip, 576 U.S. at 877; then citing Baze,
553 U.S. at 50, 52); see also State v. Brimmer, 876 S.W.2d 75, 88 (Tenn. 1994).
Mr. Hines argues that he has a likelihood of success sufficient to obtain a stay based
on his claim of an intolerable risk of severe suffering during his execution under the 2025
protocol caused by “TDOC’s culture of noncompliance, recklessness, and secrecy,” which
is “substantially increased if the individuals involved in setting the IV line, preparing the
syringes, or administering the chemicals are not sufficiently trained.” Complaint, Claim
1.2, at 138–139. Mr. Hines submits that a single modification to the 2025 protocol, i.e.,
removal of Physician A and replacement with a “qualified physician,” will eliminate his
constitutional concern about the protocol as written.
We disagree with both assertions. First, the chancery court’s July 17, 2026 order,
which is not before this Court, requires TDOC to respond to a request for admission about
whether Physician A will be part of the team for Mr. Hines’s execution. It does not declare
Physician A unqualified, nor has Mr. Hines established, through anecdotal evidence or
otherwise, that Physician A is unqualified to perform the responsibilities assigned by the
2025 protocol. Accepting Mr. Hines’s allegations as true, he has established at most that
Physician A was unable to place a central IV line for Mr. Carruthers’ attempted execution.
But, as already noted, “an isolated mishap alone does not give rise to an Eighth Amendment
violation, precisely because such an event, while regrettable, does not suggest cruelty, or
that the procedure at issue gives rise to a ‘substantial risk of serious harm.’” Baze, 553 U.S.
at 50 (quoting Farmer, 511 U.S. at 842).
As characterized by the State in its response to the instant motion, Mr. Hines
“guesses that the State might use a physician who might be unqualified to establish a
6
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APPENDIX A
backup central IV line during his execution, if needed.” He further suggests that his
declining health may make it more difficult for the IV team to establish a primary IV line,
thus increasing the likelihood that placement of a central line will be necessary. But mere
possibilities or hypotheticals, like Mr. Hines’s allegations about the “risks of
maladministration,” are not sufficient to establish a substantial risk of severe pain. West,
519 S.W.3d at 564–65 (quoting Baze, 553 U.S. at 62). Accordingly, Mr. Hines’s
maladministration claim is “all but foreclosed,” Cooey v. Strickland, 589 F.3d 210, 225
(6th Cir. 2009), as a matter of law because an alleged “potential flaw” in administration is
too speculative “to state an Eighth Amendment claim,” Zink v. Lombardi, 783 F.3d 1089,
1101 (8th Cir. 2015). Additionally, Mr. Hines’s assertion that he is not relying on
speculation but on the events that occurred at Mr. Carruthers’ execution does not elevate
his claim beyond the speculative risk of maladministration, which is not sufficient as a
matter of law.
III. CONCLUSION
For all these reasons, this Court declines Mr. Hines’s invitation to review the
chancery court’s discovery order and denies his request for a special master proceeding
and a conditional stay of execution. Accordingly, his motion is denied in all respects.
This order is not subject to rehearing under Rule 39 of the Tennessee Rules of
Appellate Procedure, and the Clerk is directed to certify this order as final and to
immediately issue the mandate. As provided by this Court’s order of September 30, 2025,
the Warden of the Riverbend Maximum Security Institution, or his designee, shall carry
out the execution of Anthony Darrell Dugard Hines in accordance with Tennessee law on
the 13th day of August, 2026, unless a stay is entered by this Court or by a federal court.
Counsel for Anthony Darrell Dugard Hines shall provide to the Office of the Appellate
Court Clerk in Nashville a copy of any order of stay. The Clerk shall expeditiously furnish
a copy of any stay order to the Warden of the Riverbend Maximum Security Institution.
This order is designated for publication pursuant to Rule 4 of the Rules of the
Tennessee Supreme Court.
PER CURIAM
7
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APPENDIX B
FILED
JUL 1 0 2026
Clerk of the Appellate Courts
REc'd By
DEATH PENALTY CASE
EXECUTION DATE: AUGUST 13, 2026
Case No. M2025-00221-SC-DPE-DD
IN THE TENNESSEE SUPREME COURT
AT NASHVILLE
STATE OF TENNESSEE
v.
ANTHONY DARRELL HINES
MOTION TO AMEND ORDER SETTING EXECUTION DATE, TO
APPOINT SPECIAL MASTER, AND FOR CONDITIONAL STAY
OF EXECUTION
FEDERAL PUBLIC DEFENDER
MIDDLE DIST. OF TENNESSEE
CAPITAL HABEAS UNIT
The Berger Building
164 Rosa L. Parks Blvd.
Nashville, TN 37203
Office: (615) 736-5047
Fax: (615) 736-5265
Email: amy_harwell@fd.org
ELIJAH SWINEY
Research & Writing Specialist
DREW BRAZER
KATHERINE DIX
MARSHALL JENSEN
Asst. Federal Public Defenders
KIT THOMAS
Dep. Chief, Capital Habeas Unit
AMY D. HARWELL
First Asst. Fed. Public Defender
A-8
APPENDIX B
In January 2025, the Tennessee Department of Correction
("TDOC") finalized and released a redacted version of its current lethal
injection protocol CProtocon. Movant Darrell Hines promptly filed a
grievance raising various concerns about the Protocol, and on March 14,
2025—the day after his grievance was exhausted—he joined several
other plaintiffs in filing suit regarding several problematic aspects of the
Protocol and TDOC's capacity to carry it out. On September 30, 2025,
with that lawsuit pending, this Court entered an Order setting an
execution date for Mr. Hines of August 13, 2026.
On May 21, 2026, TDOC attempted—and ultimately failed—to
execute Tony Von Carruthers. It appears, from all available evidence,
that a central actor in the lengthy, excruciating, and ultimately
unsuccessful attempt to execute Mr. Carruthers was a TDOC-selected
execution physician, "Physician A,"1- who tried and failed for nearly 45
minutes to obtain intravenous access.
1 This individuaPs name is public knowledge, and he has personally spoken to the
press. However, the Davidson County Chancery Court has requested that Mr. Hines
refer to him by a pseudonym when including his name on its public docket, and Mr.
Hines will continue that practice here. He has redacted attachments accordingly.
2
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APPENDIX B
As part of his ongoing, preexisting litigation, Mr. Hines served a
request for admission (RFA No. 1) on TDOC, asking the agency to admit
or deny that it intends to rely on Physician A for Mr. Hines' scheduled
execution. TDOC refused to answer. After a July 16, 2026 hearing on the
matter, the Davidson County Chancery Court granted the motion, made
several on-the-record findings in support of that conclusion, and ordered
TDOC to answer Mr. Hines' RFA No. 1, but stayed service of that answer
pending consideration of the relevant issues by a higher court.2 Ex. 1
(Order of July 17, 2026).
Mr. Hines therefore invites this Court to review Defendants'
answer to RFA No. 1 and moves for a conditional stay of execution if
TDOC refuses to replace Physician A. Because Mr. Hines assumes—and
common-sense dictates—that TDOC should be able to proceed with Mr.
Hines' execution on August 13, 2026, by hiring an appropriately
credentialed replacement from among the 20,000 active physicians in the
2 It appears that the Chancery Court selected this language, rather than the ordinary
approach of staying an order pending an appeal, because the court recognized that
this Court's procedural framework for considering requests for equitable relief in
connection with executions meant that there was a meaningful likelihood that the
matter might be resolved through a mechanism other than an appeal.
3
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APPENDIX B
State of Tennessee, Mr. Hines maintains that addressing this issue is
well within this Court's inherent authority, without the need for
significant additional litigation. However, insofar as this Court concludes
that Mr. Hines must establish a likelihood of success on the merits in
collateral litigation in order to obtain his requested conditional stay of
execution, he can meet that standard for the reasons set forth herein and
requests the appointment of a special master for the appropriate
consideration of his request.
I.
BACKGROUND
A.
Mr. Hines has alleged an intolerable risk that he will
experience severe suffering due to the 2025 Protocol's
allowance for the use of insufficiently qualified
medical personnel and has pursued his claim
expeditiously.
On March 14, 2025, several Tennessee death row prisoners,
including Mr. Hines, filed a Complaint in Davidson County Chancery
Court seeking a declaratory judgment regarding the legality of TDOC's
plans for carrying out their executions pursuant to the then newly
unveiled Protocol. Ex. 2 (Complaint, Burns v. Strada, No. 25-0414-IV
(Davidson County Ch.)). The Complaint contained four claims—Claims
1.1 through 1.4—based on the Eighth Amendment prohibition on cruel
4
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APPENDIX B
and unusual punishment and the corresponding protections of Article I,
§§ 16 and 32 of the Tennessee Constitution. The Complaint also set forth
claims based on the First Amendment that, while mostly still pending,
are minimally relevant to the current Motion. Id.
Defendants moved the chancery court to dismiss all of the plaintiffs'
claims. The court granted that motion in part—dismissing Claim 1.3,
which challenged the constitutionality of lethal injection generally, as
time-barred; and dismissing most plaintiffs' Claim 1.4, which involved
individual medical conditions, as unripe. See Ex. 3 (Order on Motion to
Dismiss) at 23-24. Since that time, the two plaintiffs with surviving
Claim 1.4 claims—Mr. Byron Black and Mr. Oscar Smith—were
executed. Consequently, there remain two sets of Eighth Amendment
claims pending in the plaintiffs' case—Claim 1.1 and Claim 1.2.
The claim more relevant to this matter, Claim 1.2, alleges that the
plaintiffs face an intolerable risk of severe suffering due to TDOC's
current inability to perform executions in a reliable, consistent, and
appropriately humane manner under the Protocol in light of TDOC's
culture, practices, and policies, as well as the unusual amount of
discretion afforded by the Protocol's vague and undemanding terms. For
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APPENDIX B
example, under the Protocol, intravenous catheterization is attempted,
in the first instance, by an "IV Team." The previous protocol had required
that intravenous catheterization be performed by certified EMTs. See Ex.
4 (Second 2018 Protocol) at 31, 42. The current Protocol, by contrast,
replaces that clear requirement with a vague, open-ended set of
qualifications copied nearly verbatim from the now-abandoned lethal
injection protocol of Commissioner Strada's former employer, the Arizona
Department of Corrections:
IV Team: consists of at least two members who are either physicians,
physician assistants, nurses, emergency medical technicians ("EMTs"),
paramedics, military corpsman with relevant medical training, or other
certified or licensed personnel including those trained in the United
States Military. All team members are currently certified, licensed
and/or qualified within the United States to place IV lines. IV Team
members are selected by the Commissioner.
Compl. ¶ 335 (quoting Ex. 5 (Protocol) at 11); compare Ex. 6 (2022
Arizona Protocol) at 6.
As Plaintiffs warned in their Complaint, those requirements are
functionally meaningless, because they provide no limitation on the type
of license sufficient for participation and set out no limitations on the
form of "certification" or "qualifications" sufficient for an unlicensed
individual to participate. Accordingly, the Protocol permits reliance on
6
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APPENDIX B
both meaningless pay-to-play certifications and licenses to perform
services with no meaningful connection to intravenous catheterization.
See, e.g., Tenn. Code Ann. § 63-18-116 (granting a healthcare license for
message therapy); Att'y Gen. of Conn., Attorney General Warns of Bogus
Medical Board Certification Scam Targeting Immigrant Doctors (Apr. 8,
2009).3 The Protocol, moreover, offers no explanation of what it means to
be "certified, licensed and/or qualified within the United States to place
IV lines." There is, to undersigned counsel's knowledge, no nationwide
(or statewide) regime for specifically authorizing individuals "to place IV
lines." See Compl. ¶¶ 335-50.
Based on that unnecessary vagueness and other instances of
insufficiently defined safeguards, the plaintiffs alleged in their
Complaint that the terms of the revised Protocol, combined with other
risk factors, "create a significant, unnecessary, and avoidable risk that
errors will occur in an execution performed pursuant to [the Protocol]."
Id. ¶ 367. They likewise asserted that:
3 Available at https://portal.ct.gov/AG/Press-Releases-Archived/2009-Press-
Releases/Attorney-General-Warns-Of-Bogus-Medical-Board-Certification-ScamTargeting-Immigrant-Doctors.
7
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APPENDIX B
The risk of a [torturous] death by pentobarbital poisoning is
also increased if the individuals charged with . . . setting the
intravenous ("IV") line . . . are incompetent, insufficiently
trained, insufficiently dedicated to doing their jobs properly,
and/or insufficiently attentive.
Ex. 2 (Complaint) ¶ 315; see also id. at Ili 324, 325, 332, 342, 348, 644.4
The plaintiffs pursued their concerns regarding IV catheterization
zealously and expeditiously by, among other things, propounding
Interrogatory No. 6 and Request for Production No. 11 on April 8, 2025,
and July 1, 2025, respectively. Interrogatory No. 6 asked Defendants to
"identify all forms of licensure, certification, or qualification that you
consider sufficient for an individual to serve as one of the licensed,
certified, or qualified members of the IV Team under the 2025 Protocol."
Ex. 7 (Pl. Interrog. No. 6). Plaintiffs also asked that, "[f]or any form of
qualification that does not involve the issuance of a license or certification
confirming a satisfactory completion of requirements, [Defendants]
identify the standard by which the adequacy of the team member's
qualification will be assessed." Id.
4 Plaintiffs likewise alleged that TDOC suffers from a culture of recklessness with
regard to the retention of demonstrably unreliable participants in executions. Id. ¶¶
176, 181, 378.
8
A-15
APPENDIX B
In response to the interrogatory, Defendants lodged no specific
objection, but instead chose to "answer" the interrogatory by copying and
pasting the very language that the plaintiffs were seeking to clarify:
Qualified IV Team members must be either physicians,
physician assistants, nurses, emergency medical technicians,
paramedics, military corpsman with relevant medical
training, or other certified or licensed personnel including
those trained in the United States Military. All IV team
members are currently certified, licensed, and/or qualified
within the United States to place IV lines.
Ex. 8 (Def. Resp. to Interrog. No. 6) (emphasis added).
Request for Production No. 11 asked Defendants to produce "all
documents, policies, guidelines, memoranda, communications, training
materials, protocols, or other records that describe, reflect, or relate to
the forms of licensure, certification, or other qualifications considered
sufficient for an individual to serve as a licensed, certified, or otherwise
qualified member of the IV Team under the 2025 Execution Protocol." Ex.
9 (Pl. Req. for Prod. No. 11). Defendants objected to this request on the
grounds that
the information sought
might identify execution
participants. Ex. 10 (Def. Resp. to Req. for Prod. No. 11).
On October 7, 2025, the plaintiffs filed a Motion to Compel, covering
several issues raised by Defendants' aggressive stonewalling of discovery.
9
A-16
APPENDIX B
They specifically alleged that Defendants' responses to Interrogatory No.
6 and Request for Production No. 11 were inadequate, Ex. 11 (Oct. 2025
Mot. to Compel) at 20, and argued that Defendants were not entitled to
withhold this information under the court's protective order. The
plaintiffs likewise contended that the risk of severe suffering due to
TDOC's reliance on insufficiently qualified medical personnel was not
merely "speculative," as Defendants alleged:
A sufficiently qualified IV Team is indispensable to the
reliability of any lethal injection protocol. IV errors have led
to earlier botched executions . . . See Compl. ¶¶ 334— 54; 36167. . . . ['Mere is no reasonable basis for disputing that a
botched IV catheterization can lead to a prolonged, torturous
execution. At most, Defendants can simply suggest that there
is no such risk here—a question of fact on which discovery is
necessary. And there is no more important issue underlying
that question of fact than what TDOC considers to be the
minimum requirements for serving on the IV Team.
Id. at 20. The plaintiffs therefore asked the chancery court to compel
defendants to substantively respond to Request for Production No. 11 and
Interrogatory No. 6. Id.
The chancery court has yet to rule on this outstanding discovery
motion. There is, accordingly, very little evidence by which to judge most
of TDOC's intravenous catheterization personnel beyond the thin
10
A-17
APPENDIX B
requirements for their selection and their track record. The qualifications
of one team member responsible for IV catheterization, however, are
known—that of Physician A.
Physician A is, or at least was, the State's execution physician,
whom the Protocol entrusts with "establishing central line IV access if
necessary" due to an inability to set a peripheral line. Ex. 5 at 8.
Physician A was deposed in Mr. Hines' chancery court litigation on
October 27, 2025. During the deposition, Physician A seemed unaware
that the 2025 Protocol required him to be able to set a central line, until
that requirement was pointed out to him by undersigned counsel:
Q. Okay. Can you tell me what you believe your role to
be under that protocol as the physician?
A. Certify the death of the inmate.
Q. Okay. Anything else?
A. That's it.
MR. BRAZER: . . . [Physician A], I'm directing you to
Page 8 of the 2025 Lethal Injection Protocol. . . .
[Physician A], would you mind reading the paragraph
under the word physician on Page 8?
A. "The physician is responsible for determining that the
inmate is deceased using acceptable -- acceptable
medical standards and establishing central IV access if
necessary.',
11
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APPENDIX B
Ex. 12 (Redacted Deposition) at 29. Physician A—having apparently
learned for the first time that the State of Tennessee was expecting him
to be capable of setting a central line—testified that he had not done so
since 2013 and that, of the roughly twelve times he had performed the
procedure, he erroneously inserted a guide wire into a patient's carotid
vein during one such instance:
Q. . . . How many times have you placed a central IV
line?
A. A dozen or more.
Q. Okay. When was that?
A. When I was in the emergency room, primarily.
Q. Okay. So when was the last time you placed a central
IV line?
A. Probably somewhere close to the last aspect of my
tenure in the emergency room.
Q. Okay. So if I could have here, let me just refer back
to your CV. So that would be around 2013; is that
correct?
A. Yes, sir.
Q. Okay. And you stated that you never had any
complications establishing a central IV line in those
cases?
A. I didn't say that.
12
A-19
APPENDIX B
Q. Okay. Did you ever have complications
establishing a central IV line in those cases?
in
A. Just one time.
Q. Could you tell me what happened?
A. The guide wire wound up in the carotid vein, which
is an undesirable placement, but you can reverse that
fairly quickly.
Id. at 32.
B.
Mr. Hines' fears regarding TDOC's reliance on
insufficiently qualified medical personnel were
realized during the botched execution of Tony
Carruthers.
The concerns raised by Claim 1.2 and the plaintiffs' October 7, 2025
Motion to Compel were, unfortunately, realized on May 21, 2026, when
Defendants attempted, and ultimately failed, to execute Tony Von
Carruthers.5 According to Mr. Carruthers' attorney witness, Maria
DeLiberato, members of the IV Team tried and failed for approximately
30 minutes to establish a back-up peripheral IV line—puncturing Mr.
Carruthers six to seven times in his left arm and hand. See Ex. 13 (Decl.
of Maria DeLiberato).
5 Mr. Carruthers is represented by the undersigned in some matters but is not a
plaintiff in the chancery court litigation in which Mr. Hines is a plaintiff.
13
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APPENDIX B
After failing to obtain peripheral IV access in Mr. Carruthers' left
arm and hand, TDOC called upon Physician A to assist. Upon entering
the execution chamber, Physician A identified himself by name and
proceeded to direct the IV Team's efforts to obtain peripheral IV access
in Mr. Carruthers' feet. Id. This effort also failed, whereupon Physician
A began his attempts to place a central line. Id.
Physician A first attempted to place a central line in Mr.
Carruthers' jugular vein. He asked whether any of the members of the IV
Team had experience with jugular access and one of the members said
that they did. Physician A and the IV Team member then assessed Mr.
Carruthers' neck using an infrared vein finder (a device which cannot, in
fact, be used to locate the internal jugular vein). Id. After the IV Team
member who had volunteered expressed his misgivings about attempting
the jugular placement, they abandoned this effort. Id.
Physician A then attempted to set a central line in Mr. Carruthers'
chest—specifically his subclavian vein (under the right collar bone). Id.
Before proceeding with the insertion, Physician A asked if Mr.
Carruthers was allergic to lidocaine. No one in the room knew the
answer. Id. Physician A nevertheless injected Mr. Carruthers' shoulder
14
A-21
APPENDIX B
with lidocaine and proceeded to wait five minutes for the lidocaine to take
effect.
Concerned about the already harrowing ordeal that Mr. Carruthers
was undergoing, Ms. DeLiberato used this opportunity to call
undersigned counsel, Amy Harwell, from a wall phone in the Death
Watch Area. Ms. Harwell informed Ms. DeLiberato that undersigned
counsel had deposed Physician A and that Physician A was not qualified
to place a central line. Id.
Ms. DeLiberato immediately returned to the execution chamber,
where she objected to Physician A's attempts to place a central line in
Mr. Carruthers, arguing that he was insufficiently qualified. Id.
Physician A snapped back that he was qualified and proceeded with his
attempts. Id.
Physician A then poked Mr. Carruthers with a needle in the area
where he had administered the lidocaine and asked Mr. Carruthers if it
hurt. Mr. Carruthers replied that it did. Id. However, instead of
administering a second dose of lidocaine, as is the proper standard of
care, Physician A proceeded with his attempts to place the subclavian
central line. According to Ms. DeLiberato, Mr. Carruthers groaned in
15
A-22
APPENDIX B
pain during these attempts and said "it hurts, it hurts." Later, a tearful
Mr. Carruthers told Ms. DeLiberato that Physician A "was hurting me
and he knew he was hurting me." Id.
During this time, undersigned counsel communicated with
Assistant Attorney General John W. Ayers, counsel for TDOC, to express
their own objections to the State's use of Physician A for central line
placement. Undersigned counsel reminded Mr. Ayers that Physician A
had admitted under oath that he had not placed a central line in over 13
years and did not have privileges to do so at any hospital in the United
States. Indeed, Mr. Ayers' team and TDOC were aware of this
information because they had defended Physician A's deposition.
Nevertheless, Mr. Ayers expressed that Defendants "could not agree"
that Physician A was not qualified to place a central line. Undersigned
counsel thereafter requested that the Attorney General's office stop the
execution, to give them time to litigate whether Physician A was qualified
to proceed. Mr. Ayers stated that he would "run that request up."
At 11:40 AM, after over an hour of failed IV catheterization
attempts—wherein Mr. Carruthers was subjected to over a dozen
puncture wounds, potential internal injuries, extreme terror, pain, and
16
A-23
APPENDIX B
humiliation—Governor Lee intervened to stop the execution and granted
Mr. Carruthers a one-year reprieve. See Ex. 14 (Reprieve).
C.
Mr. Hines established in Davidson County Chancery
Court that any protection that would prevent TDOC
from confirming whether it intends to rely on
Physician A for Mr. Hines' execution has been waived.
Mr. Hines hoped and expected that TDOC would expeditiously
announce that it would no longer rely on Physician A for executions.
When it failed to do so, Mr. Hines issued a June 17, 2026 request for
admission (RFA No. 1) in Burns v. Strada, asking TDOC to admit
whether it expects to continue to rely on Physician A for Mr. Hines'
scheduled execution on August 13, 2026. The defendants refused to
answer and responded with objections—arguing that the State has a
confidentiality interest in Physician A's identity as a future execution
participant. The plaintiffs filed a motion to enforce the request, and,
before the scheduled hearing on that motion, the Davidson County
Chancery Court sua sponte proposed a revision to RFA No. 1 to remove
Physician A's name and to instead ask whether TDOC intended to use
the same physician as they did for Mr. Carruthers' attempted execution.
Defendants reiterated their objections. After a hearing on July 16, 2026,
the chancery court granted Mr. Hines' motion with regard to the
17
A-24
APPENDIX B
reformulated question but stayed service of Defendants' response
pending resolution of the underlying issues by a higher court through an
appropriate mechanism. See Ex. 1 (Order).
The chancery court made several specific holdings, including that
TDOC had sufficiently waived any protection owed to Physician A to
support the granting of the motion. Id. Defendants themselves first
inadvertently disclosed Physician A's identity to media witnesses orally
during the execution of Byron Black on August 5, 2025. See Steve
Cavendish, Podcast: Exploring the Unusual Execution of Byron Black,
Nashville
Aug.
Banner,
10,
2025,
https://nashvillebanner.com/2025/08/10/execution-tennessee-byronblack-defibrillator/. Based on the resultant reporting, id., undersigned
counsel noticed Physician A for deposition. Shortly thereafter, the
defendants filed a Motion to Quash directed at other noticed depositions,
and included Physician A's full, unredacted name in an exhibit. See Ex.
15 (Motion to Quash and Redacted Exhibit).
In the hearing on that motion, counsel for the plaintiffs pointed out
the fact that the defendants had, in so doing, published the full,
unredacted name of a direct execution participant on the public docket.
18
A-25
APPENDIX B
Counsel for the defendants immediately objected—not to complain about
the plaintiffs' drawing attention to the apparent error, but to dispute any
suggestion that there had even been an error at all. Counsel for the
defendants explained that the name was unredacted because the
defendants were being "very judicious with their redactions" and did "not
make redactions where they don't have a supportable interest and
supportable justification in asserting that redaction." Ex. 16 (Chancery
Court Transcript) at 45.
Protection for Physician A's identity was affirmatively waived
again in connection with his deposition. Early in the deposition,
Physician A expressed a mistaken belief that the deposition was being
taken "under seal." Undersigned counsel informed him that he was
mistaken and, following a brief exchange and a short period of going off
the record, confirmed Physician A's understanding of that fact:
Q. Okay. So I -- are you aware that this deposition is not
being conducted under seal?
A. I am now.
Q. Okay. All right, [Physician A], I'd like to proceed with
the questions if that's okay.
A. Sure.
19
A-26
APPENDIX B
Ex. 12 at 23-25.
With full knowledge that the deposition was not under seal,
Physician A testified regarding what he "believe [d] [his] role to be under
the protocol as the physician," id. at 29, thereby acknowledging that he
had not merely been the execution physician in the past, but was, in fact,
serving in that role on a continuing basis.
The chancery court's protective order expressly permits the
designation of deposition testimony as "Protected Material" "within
thirty (30) days of receipt of the final transcript." Ex. 17 at 9. The
defendants could have designated Physician A's deposition as Protected
Material, but did not avail themselves of that process.
Finally, during the botched execution attempt of Tony Carruthers,
as noted supra, Physician A affirmatively identified himself to Mr.
Carruthers' attorney witness, Ex. 13 (Decl. of Maria DeLiberato), and he
later confirmed his involvement by choosing to speak to an NBC News
reporter to defend the quality of the work he performed. Erik Ortiz and
Abigail Brooks, Doctor in failed Tennessee execution says he didn't want
prisoner
to
suffer,
News
NBC
(June
1,
2026),
20
A-27
APPENDIX B
https://www.nbcnews.com/news/us-news/te nnesse e -exe cution-botche dde ath-penalty-lethal-injection-rcna347362.
Mr. Hines therefore argued that the defendants repeatedly waived
their confidentiality interest in Physician A's identity pursuant to the
framework set out in Castillo U. Rex, 715 S.W.3d 321, 337-38 (Tenn.
2025), and the chancery court agreed. In light of that waiver, the
chancery court ordered the defendants to answer Mr. Hines' RFA No. 1,
but stayed the service of that answer pending the opportunity for review
by a higher court.6
D.
Mr. Hines has already suffered due to the
incompetence of TDOC's contracted medical
personnel and reasonably fears that he will endure
additional suffering if TDOC is allowed to use
Physician A for his scheduled execution.
Between the filing of Mr. Hines' Complaint in Burns v. Strada and
the failed attempt to execute Mr. Carruthers, Mr. Hines' health
aggressively deteriorated—in significant part due to TDOC's failure to
The Chancery Court's decision to phrase its stay in that manner—rather than
simply staying pending an interlocutory appeal—appears to have been a recognition
of the unique structure of Rule 12.4(E) and the likely need for the relevant issues to
be raised directly before this Court, in order for all issues to be resolved in a timely
manner.
6
21
A-28
APPENDIX B
provide him with necessary medical care. As Mr. Hines' medical records
indicate, Mr. Hines suffered an ischemic stroke in early December 2025,
whereupon an ambulance was called to Riverbend Maximum Security
Institution to transport him for treatment at an outside hospital. Ex. 18
(Hines Medical Records) at 1. An employee with TDOC's contracted
medical provider, Centurion, however, turned the ambulance away,
writing that "urgent imaging is warranted, but not ER transfer."
Although imaging could be performed "in house" at the prison's
DeBerry Special Needs Facility, TDOC's medical contractor inexplicably
failed to perform Mr. Hines' CT scan until three weeks later, on
December 22, 2025—at which point they confirmed that Mr. Hines had
indeed suffered an ischemic stroke. Id. at 2, 5. The physician then waited
another two weeks (until January 6, 2026) to prescribe Mr. Hines
aspirin—which, according to the standard of post-stroke care, should
have been given to Mr. Hines daily within 24 hours of his stroke. Id. at
3, 5. The physician likewise prescribed Mr. Hines an anti-coagulant
medication, Eliquis, which Centurion subsequently denied because the
drug was not in their formulary. Id. at 6-8. Centurion made no effort to
provide Mr. Hines with a comparable medication. Unsurprisingly then,
22
A-29
APPENDIX B
Mr. Hines appeared to suffer a second stroke a week later (on January
13, 2026)—collapsing in his cell and hitting his head. Id. at 4. He has
since been in the infirmary, and is paralyzed on his left side, with partial
left-sided blindness and muscular atrophy.
Having already suffered the trauma of a debilitating stroke due to
the negligence of TDOC's contracted medical personnel, Mr. Hines
reasonably fears that he will suffer like Mr. Carruthers did if TDOC is
allowed to use insufficiently qualified medical personnel—such as
Physician A—for his scheduled execution. In support of this concern, Mr.
Hines notes that, in addition to the facts stated supra regarding
Physician A's qualifications, actions, and performance, Physician A,
according to Mr. Carruthers' attorney witness, made no effort to place
Mr. Carruthers in Trendelenburg position prior to attempting to place a
central line in Mr. Carruthers' jugular and subclavian veins—which
further calls into question his familiarity with accepted practices for
central line catheterization.
23
A-30
APPENDIX B
Trendelenburg position
Head is lower
than feet
Patient laying
flat on their back
r
Cleveland
Clinic
Figure 1 "Trendelenburg Position," Cleveland Clinic,
https://my.clevelandclinic.org/he altb/procedure s/trendel
enburg-position
It is the medical standard of care to place a patient in
Trendelenburg position (where the feet are raised above the head) prior
to attempting subclavian or jugular central line placement. Ex. 19 (Decl.
of Dr. Sina Khoshbin). When a patient is in Trendelenburg position,
gravity causes their blood to pool in the upper body, which dilates the
subclavian and jugular veins. This dilation makes the blood vessels
significantly easier to locate, puncture, and cannulate. Id. The headdown tilt position also elevates the patient's right atrium above the
puncture site, which ensures that any atmospheric-to-venous pressure
24
A-31
APPENDIX B
gradient favors bleeding out, as opposed to air being sucked into the
patient's venous system. Id.
If a patient is not placed in Trendelenburg position, there is a risk
of venous air embolism—wherein air is sucked into the IV line and enters
the patient's venous system. Id. Trendelenburg position ensures that
even if air enters the venous system, it will rise to the patient's feet, not
their head. Id. If the patient is not in Trendelenburg position, however,
an air embolism could enter the patient's vein and travel to the heart. If
the patient has a patent foramen ovale (PFO)—a small hole between the
left and right atria of the heart that is present in approximately 25% of
individuals—the air embolism could cross over into the patient's arterial
system, whereupon it could rise to the patient's brain and potentially
cause a stroke. Id.
A reasonable physician would have either tilted the execution
gurney to ensure that Mr. Carruthers was in Trendelenburg position or,
in the event that the gurney does not tilt, notified the Department ahead
of time that they would need to bring in a gurney from the prison
infirmary with such capability. Id. If the Department, for whatever
reason, was unable to use a gurney that tilts, a reasonable physician
25
A-32
APPENDIX B
might have attempted central line placement in the person's femoral vein
instead—which does not require Trendelenburg position. Physician A's
failure to take these reasonable steps—despite being put on notice by
undersigned counsel that he might be called on to place a central line,
Ex. 12 at 29—evinces his recklessness and inexperience. So too does the
fact that, despite not having placed a central line in over 13 years (and
having only limited experience before then), Physician A attempted to
place a central line in Mr. Carruthers' subclavian vein (which carries the
highest risk of complications), without the use of an ultrasound (which is
recommended), and ultimately failed to do so, despite his lengthy efforts.
These facts strongly suggest that Mr. Hines will suffer greatly if TDOC
is allowed to use Physician A for Mr. Hines' scheduled execution.
Finally, the risk that TDOC will be unable to establish either the
primary or secondary peripheral IV lines and will be forced to resort to a
central line during Mr. Hines' scheduled execution is not speculative. Mr.
Hines is 66 years old, extremely thin, and has suffered significant
muscular atrophy as a result of his stroke—all of which will complicate
peripheral IV access. Mr. Carruthers, by contrast, is nearly a decade
younger than Mr. Hines and had no foreknown medical issues that could
26
A-33
APPENDIX B
complicate vascular access. Nevertheless, TDOC's IV team was incapable
of establishing secondary peripheral IV access in Mr. Carruthers and was
forced to resort to a central line.
II.
JURISDICTION
This Court has held that it possesses exclusive authority over all
requests for equitable relief that would "effectively and practically
operate 0 as a stay" of a pending order scheduling an execution. Black v.
Strada, 721 S.W.3d 223, 228 (Tenn. 2025). The Court has interpreted
that requirement to extend not only to stay requests or requests for
injunctive relief forbidding or postponing an execution, but also to
requests for relief that would give rise to a violation of the obligation
imposed if the State went forward with the execution without complying.
Id.
Mr. Hines is aware of no reason why the narrow issues he raises
here should or will necessitate a postponement of the scheduled
execution. Nevertheless, it is true that, if he were granted his requested
relief by a trial court, and the State simply refused to comply and went
forward with Mr. Hines' execution, that would be a violation of the trial
27
A-34
APPENDIX B
court's order. Accordingly, this Court provides the only forum in which
he can seek relief in Tennessee state courts.
Requests for execution-related relief from this Court while an
execution date is pending are largely governed by this Court's Rule
12.4(E).7 This Court has suggested that a motion seeking relief pursuant
7 On December 5, 2025, the Tennessee Supreme Court amended Rule 12.4 to adopt a
framework for "commenc[ing]" "any state court collateral litigation that would
potentially affect the method or timing of execution" "[a]fter a date of execution is
set." Tenn. R. Sup. Ct. 12.4(E) ("December 2025 Amendment"). As has been raised to
this court in other currently pending litigation, the December 2025 Amendment was
unlawful because it (1) improperly amends Tenn. R. Civ. P. 3 ("All civil actions are
commenced by filing a complaint with the clerk of the court.") without following the
procedures set out in Tenn. Code Ann. § 16-3-404; (2) improperly amends the Rules
of this Court without following the procedures set out in Tenn. Code Ann. § 16-3-404;
(3) violates the edict, in Article VI, § 2 of the Tennessee Constitution, that this Court's
"jurisdiction . . . shall be appellate only"; (4) violates Tenn. Const. art. II, §§ 1-2 by
"`creat[ing], defin[ing], and regulat[ing] the rights, duties, and powers of parties,"
Willeford v. Klepper, 597 S.W.3d 454, 475 (2020) (Kirby, J., concurring) (citation
omitted), without legislative authorization; (5) violates Tenn. Code Ann. § 16-3-403
by "abridg[ing], enlarg[ing] or modify[ing]" existing rights; (6) permits this Court to
extinguish vested causes of action without either due process or compensation; (7) is
unconstitutionally vague in its scope; and (8) violates due process by failing to provide
notice regarding the procedures that will govern the consideration of claims
commenced through the Rule 12.4(E) process. The infirmities in the December 2025
Amendment, however, do not preclude the relief that Mr. Hines seeks because (1) Mr.
Hines filed a Complaint encompassing the underlying concerns well before his
execution date was set and (2) all of the relief that he requests would be within the
Court's power regardless of the December 2025 Amendment. Mr. Hines notes these
objections, however, to preserve them, should the Court construe the December 2025
Amendment as bearing on these proceedings.
28
A-35
APPENDIX B
to Rule 12.4(E) must incorporate a request for a stay of execution. See Ex.
20 (Pike order). Mr. Hines has therefore styled this motion as
incorporating a request for a conditional stay, not because he anticipates
the need for such a stay but because this Court requires him to take that
formal step in order to seek relief. Mr. Hines stresses, however, that there
has been no showing—and Mr. Hines highly doubts that the State could
make a showing—that complying with his request would require the
postponement of an execution.
III. LEGAL STANDARD
For reasons set out infra, this Court has broad discretion to address
the issues raised by and underlying this motion. To the extent that Mr.
Hines' request requires him to establish a likelihood of success on the
merits regarding a pending claim in collateral litigation, the relevant
claim is Claim 1.2 of Burns v. Strada, as limited to the specific possibility
of an execution going forward with Physician A serving as TDOC's
execution physician. That claim alleges that TDOC's plans for carrying
out Mr. Hines' execution are inconsistent with the Eighth Amendment in
light of (1) the breadth of discretion granted to TDOC by revisions to
Tennessee's protocol; (2) the specific risks and demands of performing an
29
A-36
APPENDIX B
execution by lethal injection of pentobarbital; and (3) TDOC's established
culture of recklessness and noncompliance surrounding executions,
including, in particular, its refusal to part ways with execution
participants whose actions and/or statements have proven them to be
unreliable. See Ex. 2 (Complaint) TT 176, 181, 309-11, 369-401, 426-87,
684-94.
To succeed on the merits of an Eighth Amendment claim involving
an anticipated execution, a plaintiff typically must make two showings.
First, he must show that the challenged course of action poses an
"'objectively intolerable risk of harm' that qualifies as cruel and unusual."
Baze v. Rees, 553 U.S. 35, 50 (2008) (quoting Farmer v. Brennan, 511 U.S.
825, 846 (1994)). Although Eighth Amendment cases routinely discuss
such harm using the shorthand of "pain," it is well-established that,
consistent with the Framers' expectations, the Eighth Amendment
encompasses more than what modern medicine would classify as physical
pain. Rather, the Eighth Amendment considers all forms of sufficiently
severe "needless suffering," Glossip, 576 U.S. at 877 (quoting Baze, 553
U.S. at 50), including the "`superadd[ition]' of 'terror, pain, or disgrace,'
Bucklew, 587 U.S. at 133 (quoting Baze, 553 U.S. at 48).
30
A-37
APPENDIX B
Second, when an individual challenges some aspect of his proposed
execution, "the Eighth Amendment requires [him] to plead and prove a
known and viable alternative." Glossip, 576 U.S. at 880. If there is no
viable alternative method of execution, the reasoning goes, then the
challenge is to the sentence, not the method, and should be treated
accordingly. Id. at 879-80.
A plaintiff can establish that his challenge is to a method or
circumstance, rather than the death penalty itself, by establishing that
there exists at least one alternative course of action that "`is feasible,
readily implemented, and in fact significantly reduce [s]' the risk of harm
involved." Nance v. Ward, 597 U.S. 159, 164 (2022) (quoting Glossip, 576
U.S. at 877); see also Abdur'Rahman v. Parker, 558 S.W.3d 606, 616
(Tenn. 2018). ("[U]nder the federal or state constitution, a deathsentenced inmate must establish . . . that the risk is substantial
compared to the known and available alternatives."). As long as that
plausible alternative course of action exists, then the plaintiff's challenge
does not allege, either explicitly or by implication, that "the death penalty
is categorically unconstitutional." Glossip, 576 U.S. at 880.
31
A-38
APPENDIX B
IV. ARGUMENT
A.
This Court has authority to resolve the present
dispute through its inherent powers and should do so
by requiring Physician A not to be used in the
carrying out of its Order setting Mr. Hines' execution.
This Court, as the "repository of the inherent power of the judiciary
in this State," Petition of Burson, 909 S.W.2d 768, 772 (Tenn. 1995)
(collecting cases), possesses "broad authority over the Tennessee Judicial
Department," Moore-Pennoyer v. State, 515 S.W.3d 271, 276 (Tenn.
2017), that is "inherent" and "not a matter of legislative largess but
derive [s] from the common law as it existed at the time of the adoption of
the constitution of Tennessee and of the power inherent in a court of last
resort," id. (cleaned up).
The Court's power in the area of pending executions is particularly
strong for at least three reasons. First, because this Court enters the
underlying order setting an execution date, see Tenn. Sup. Ct. R. 12.4, it
possesses the inherent power to amend that order pursuant to its "power
to supervise and control [its own] own proceedings." State v. Welch, 586
S.W.3d 399, 404 (Tenn. Crim. App. 2019) (citing State v. Bragan, 920
S.W.2d 227, 239 (Tenn. Crim. App. 1995)). Second, as a matter of both
judicial policy and substantive rule, this Court possesses a recognized
32
A-39
APPENDIX B
particular interest in the administration of a sentence of death during
the period after the entry of such an order. See Black v. Strada, 721
S.W.3d 223, 228 (Tenn. 2025). Third, this Court has recognized that "the
penalty of death is qualitatively different from any other sentence and
this qualitative difference between death and other penalties calls for a
greater degree of reliance when the death sentence is imposed." Van Tran
v. State, 66 S.W.3d 790, 807 (Tenn. 2001) (cleaned up). The unique nature
of the death penalty also makes its proper administration uniquely
important to public faith in the broader legal system and, therefore,
uniquely important to this Court.
As Tenn. Code Ann. § 16-3-401 permits, this Court has promulgated
certain rules guiding its own power to intervene in issues surrounding in
executions—most prominently, Rule 12.4(E) and its limitations on the
Court's power to "stay or delay of an execution date pending resolution of
collateral litigation" (emphasis added). By the Rule's plain language, this
request falls outside those restrictions. First, while the State will
undoubtedly take the position that Mr. Hines' request is, in practical
effect, a request for a potential delay, the State has not established that
any delay would be necessary or even likely, and Mr. Hines doubts their
33
A-40
APPENDIX B
ability to do so, for the reasons stated infra. Second, the relevant Rule
12.4(E) restrictions, on their face, apply only to delays "pending
resolution of collateral litigation." Any delay in this case would be during
the time it takes TDOC to hire an appropriately qualified physician, not
during the pendency of collateral litigation.
Nevertheless, in litigation surrounding the execution of Byron
Black, this Court elected to apply the likelihood of success standard,
notwithstanding the fact that Mr. Black had not sought a stay "pending
resolution of collateral litigation." See Ex. 21 (Order of August 1, 2025,
Black v. State, No. M2000-00641-SC-DPE-CD (Tenn.)) at 4. Mr. Hines
does not dispute that the Court had the power to do so. Indeed, as far as
Rule 12.4(E) is concerned, this Court may, within its equitable discretion,
analyze a request that is not "pending resolution of collateral litigation"
by whatever standard it chooses, so long as that standard comports with
34
A-41
APPENDIX B
due process8 and any other non-dischargeable legal obligation. Mr. Hines
suggests, however, that his situation is materially distinguishable from
Mr. Black's in ways that would support a conditional stay pursuant to a
standard that would forgo a need for a lengthy inquiry into Mr. Hines'
claims in chancery court.
Mr. Black's request involved the need for a specialized, preexecution medical procedure that plausibly could have led to a relatively
open-ended stay. Mr. Hines, by contrast, is aware of no reason why the
narrow issues he raises here should or will necessitate a postponement
of the scheduled execution. The defendants did not establish in chancery
court that complying with Mr. Hines' request would require the
postponement of his execution. And Mr. Hines sincerely doubts that they
8 To that end, Mr. Hines does raise and preserve an objection that it is inconsistent
with due process to treat all requests for injunctive relief bearing on an execution as
requests for a stay as a matter of law, without any requiring of a factual showing that
a delay is actually likely. Mr. Hines does not dispute the well-settled caselaw
establishing the relatively disfavored status of "last-minute" requests for relief that
would delay an execution. However, he contests any suggestion that it comports with
due process to treat every request for relief as a "last-minute request for delay," by
operation of law, with no reference to the reality of the underlying situation. He also
disputes whether it is consistent with due process to attribute culpability for risk of
delay in such a situation to the movant, regardless of the actions, policies, or litigation
conduct of the respondent.
35
A-42
APPENDIX B
could have made such a showing. There are nearly 20,000 active
physicians in Tennessee, see KFF, State Health Facts / Providers &
Service
Use / Physicians,
https://www.kff.org/state-he alth-policy-
data/state-indicator/total-active-physicians/. A substantial subset of
those 20,000 physicians (which include anesthesiologists, ER doctors,
trauma surgeons, etc.) undoubtedly have substantially more experience
in central line placement than Physician A and privileges to do so at
hospitals in the United States. Tennessee's lethal injection protocol
requires no complex or lengthy process for replacing the execution
physician—the choice is made entirely at the discretion of the
Commissioner. See Ex. 5 (Protocol) at 11. Defendants therefore failed to
establish that they could not proceed with Mr. Hines' scheduled execution
by simply hiring a different physician. 9
9 Were it not for the extreme secrecy that TDOC maintains regarding its staffing of
executions, Mr. Hines would readily engage in discovery to further support the fact
that TDOC could easily find a new execution physician. In light of that secrecy,
however, Mr. Hines can, at this point, appeal only to the Court's common sense and
the public record. If the Court appoints a special master, however, that special master
may be able to use appropriate procedures to better assess the likelihood of an actual
delay, including, as needed, by relying on ex parte and under seal procedures to
evaluate the State's factual assertions regarding logistical aspects of the execution
process.
36
A-43
APPENDIX B
Mr. Black's situation, moreover, arose ultimately out of a genuinely
challenging feature of Mr. Black's medical condition—his ongoing need
for an implanted cardioverter defibrillator (ICD)—that was not, in the
first instance, a result of any fault of TDOC. Meanwhile, the present risks
to Mr. Hines are entirely of the State's own making.
Finally, while Mr. Black maintained that he pursued his issues
expeditiously, it is undeniable that the time pressures facing Mr. Hines
have been more significant, and any argument that he engaged in some
manner of culpable delay is strikingly weak. While Mr. Hines has long
had concerns about TDOC's execution personnel—and, later, specific
concerns about Physician A based on facts revealed in Physician A's
deposition—the true extent of the risks that Mr. Hines faces were not
apparent until the failed attempt to execute Mr. Carruthers on May 21,
2026. Even then, Mr. Hines hoped that TDOC would part ways with
Physician A after Physician A's prolonged and embarrassing failure to
perform the functions that had been entrusted to him by the State on
behalf of the people of Tennessee. Mr. Hines has acted as expeditiously
as could reasonably be expected to have this matter addressed.
37
A-44
APPENDIX B
Mr. Hines is well aware of the consistent laments that this Court
and others have made about the demands of "last-minute" litigation
surrounding executions. What is required here, however, is not complex,
demanding litigation. What is needed is an entity with appropriate
authority to step in to fix a small, but extremely important, defect in
Tennessee's current plans to execute Mr. Hines. This Court can and
should do so by relying on its inherent authority to forbid reliance on
Physician A without an unnecessary detour into the more complex forms
of litigation required when an individual seeks a delay pending the
resolution of ongoing collateral litigation.10
B.
Insofar as Mr. Hines is required to prove a likelihood
of success on the merits of his underlying
constitutional claim, he can do so, if granted a special
master proceeding.
If the Court does conclude that the "likelihood of success on the
merits" stay-of-execution standard applies to this Motion, Mr. Hines can
prove a likelihood of success on the merits of his underlying
10 Indeed, such an order would obviate any need for an expedited consideration of
whether or not Physician A's participation in upcoming executions is shielded by the
state's secrecy laws, because this Court can forbid reliance on Physician A regardless
of whether or not TDOC was actually intending to rely on him in the first place.
38
A-45
APPENDIX B
constitutional claim. To be clear, Mr. Hines does not here assert that he
can presently establish a likelihood of success on his entire chancery
court lawsuit or even the entirety of the relevant claim, Claim 1.2. Mr.
Hines asserts only that he can establish a sufficient likelihood of success
on the merits with regard to Claim 1.2 as it applies to TDOC's apparent
intention to rely on Physician A in his upcoming execution, particularly
if granted the opportunity to do so in a special master proceeding.
To that end, Mr. Hines contends that Defendants' apparent
intention to rely on Physician A for his scheduled execution on August
13, 2026 is "very likely to cause . . . needless suffering," Baze, 553 U.S. at
50 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)), for the
reasons set forth supra.
Physician A is insufficiently qualified to perform one of the two
duties assigned to him by the Protocol—namely, the placement of a
central intravenous line. As noted above, Physician A has not placed a
central line in over 13 years, does not have privileges to do so at any
hospital in the United States, and, of the dozen or so central lines he
placed in the distant past, at least one involved significant complications.
Nevertheless, Physician A recklessly tried and failed repeatedly to place
39
A-46
APPENDIX B
a central line in Mr. Carruthers on May 21, 2026, after having tried and
failed to assist in the placement of a peripheral line as well. Physician
A's inexperience in central line placement was evidenced not only by his
repeated failures, but also by the fact that he attempted to place the
central line in Mr. Carruthers' subclavian vein (which carries the highest
risk of complications), using the landmark method (i.e., without the use
of an ultrasound—which is recommended), and without first placing Mr.
Carruthers in what is called "Trendelenburg position" (an inclined
position, where the patient's feet are above their head—which is the
standard of care). These facts, as well as others that Mr. Hines intends
to develop in a special master proceeding, establish that TDOC is very
likely to cause Mr. Hines to endure needless suffering if they rely on
Physician A for his execution.
It is not merely speculative that Physician A will be called on to
place a central line in Mr. Hines or will otherwise participate in
peripheral IV catheterization attempts—as he did in the attempted
execution of Mr. Carruthers, well before he was called on to attempt a
central line. See Ex. 13 (Decl. of Maria DeLiberato) TT 32-43. Indeed, it
is substantially likely that TDOC's IV team will be unable to obtain
40
A-47
APPENDIX B
primary and/or secondary peripheral IV access in Mr. Hines—requiring
the placement of a central line by the Physician, pursuant to the Protocol.
See Ex. 5. Mr. Hines is 66 years old, is extremely thin, and has suffered
from extensive muscular atrophy as a result of a stroke—all of which will
complicate finding a suitable peripheral vein.
Moreover, while it is difficult to fully assess the competency of
TDOC's other IV team members (i.e., the non-Physician members
responsible for obtaining peripheral IV access) due to Defendants'
invocation of state secrecy protection with respect to their qualifications,
the available evidence strongly suggests that they will be unable to
establish peripheral IV access in Mr. Hines. TDOC's IV Team proved
incapable of establishing secondary peripheral IV access in Mr.
Carruthers, notwithstanding the fact that Mr. Carruthers is roughly a
decade younger than Mr. Hines and had no foreknown medical conditions
that would make vascular access difficult. While Defendants might argue
that the IV Team was able to establish peripheral IV access during the
executions of Oscar Smith (1Vlay 22, 2025), Byron Black (August 5, 2025),
and Harold Nichols (December 11, 2025), Defendants have not
established that the individuals who served on the IV Team for those
41
A-48
APPENDIX B
executions were same individuals who served on the IV Team for Mr.
Carruthers' attempted execution on May 21, 2026. It is distinctly possible
that TDOC's current IV Team has a 0 for 1 track-record with respect to
establishing both primary and secondary peripheral IV access.
Finally, insofar as the likelihood that the physician will need to
place a central line is uncertain, Mr. Hines asserts that it is appropriate
to commit that question to a special master who can, if necessary,
consider the sufficiency of TDOC's planned IV Team. Mr. Hines and his
co-plaintiffs have been diligent in seeking information about the
reliability of TDOC's IV Team for over a year. They served an
interrogatory seeking clarification regarding the team's qualifications in
April 2025. See Ex. 7 (Pl. Interrog. No. 6). They filed notices seeking to
perform anonymized depositions of IV Team members in October 2025.
See Ex. 22 (Notice of Depositions). These requests have been disputed,
briefed, and argued for months, and the chancery court has yet to rule. A
special master could consider the sufficiency of the IV Team—with
42
A-49
APPENDIX B
appropriate procedures for maintaining confidentiality—and evaluate
the actual likelihood of the underlying risks."
Mr. Hines therefore maintains that he is likely to require the
placement of a central line and that TDOC's reckless reliance on
Physician A would subject him to an intolerable risk of severe suffering,
in violation of the Eighth Amendment. With respect to the second prong
of Baze / Glossip / Bucklew test, he proposes the obvious alternative: The
use of a physician other than Physician A who is appropriately
credentialed in the placement of central intravenous lines.
Mr. Hines points out that Rule 12.4(E) does not require a likelihood
of success on the merits to be "overwhelming," or even "substantial."
11 Indeed, Mr. Hines would welcome a special master who could review the IV Team's
qualifications and competency, and recommend any appropriate steps if it is, in fact,
shown that any member of that team is unqualified. Judicial tools for handling
confidential information are routinely recognized as sufficient to protect information
that is no less sensitive—and oftentimes far more valuable—than would be at issue
in such an inquiry. See, e.g., Doe v. Sarah Lawrence Coll., No. 19-CIV-10028-PMHJCM, 2021 WL 197132, at *5 (S.D.N.Y. Jan. 20, 2021) (using protective order to
facilitate disclosure of mental health records of sexual assault victim); United States
v. Concord Mgmt. & Consulting LLC, 404 F. Supp. 3d 67, 75 (D.D.C. 2019) (collecting
cases in which protective orders were used to facilitate discovery of national securityrelated information); Takata v. Hartford Comprehensive Emp. Ben. Serv. Co., 283
F.R.D. 617, 622 (E.D. Wash. 2012) (using protective order to facilitate disclosure of
trade secrets involving the internal operations of multi-billion-dollar insurance
company).
43
A-50
APPENDIX B
Rather, the Rule directly mirrors the well-worn language of the
established temporary/preliminary injunction standard that has been
interpreted to require only that the movant establish "at a minimum,
serious questions going to the merits" of his claim. Luxshare, Ltd. v. ZF
Auto. US, Inc., 15 F.4th 780, 783 (6th Cir. 2021) (quoting Mich. Coal. of
Radioactive Material Users v. Griepentrog, 945 F.2d 150, 153-54 (6th Cir.
1991)).
Mr. Hines anticipates that the State will argue that his claim is
categorically bound to fail because it is based on a risk of execution errors,
which, the State will assert, are so disfavored by current caselaw as to be
effectively foreclosed. Such arguments, however, ignore the wellestablished caselaw distinguishing between claims based on the generic
risk of negligence and claims based on specific, identified risk factors that
are being knowingly and recklessly disregarded. Plaintiffs do not dispute
that the former type of claim is highly disfavored. However, the relevant
caselaw clearly distinguishes between the two categories of claims and
recognizes that the latter must be evaluated based on the facts at issue,
not dismissed out of hand. See Cooey v. Strickland, 589 F.3d 210, 224 (6th
Cir. 2009) ("Consequently, Biros's general claim that the possibility of
44
A-51
APPENDIX B
maladministration of the IV could lead to severe pain is without merit.
To demonstrate a likelihood of success on this ground, therefore, Biros
must distinguish his maladministration claims from those rejected in
Baze.").
The concern that Mr. Hines has raised—Physician A's potential
participation in his execution—is neither generic, speculative, nor
limited to fears about mere negligence. Physician A is an individual who
participated in executions without bothering to learn that he might be
expected to place a central line, was informed of that fact in litigation,
and yet still proved incapable of doing so when the time arrived. TDOC,
in turn, affirmatively chose to retain Physician A after his deposition
revealed his lack of preparation or appropriate qualifications. That those
knowing,
reckless
decisions
were
bound
to
result
in
serious
maladministration is not speculative. It actually happened.
Mr. Hines also expects that the State will argue that his claims are
foreclosed by West v. Schofield, 460 S.W.3d 113 (Tenn. 2015), in which
this
Court
held,
among
other
things,
that
the
particular
maladministration-focused claim presented in that case—which was
based on bare speculation "that one or more individuals may cause the
45
A-52
APPENDIX B
Protocol to be carried out in an unconstitutional manner in the future"—
did not present a "justiciable controversy." Id. at 131. The Court,
however, appended a footnote to that analysis stating that its "holding in
this interlocutory proceeding does not preclude appropriate as-applied
challenges to the Protocol that may arise in the future."12 Id. at 132 n.12.
Moreover, the holding in West was expressly premised on the
principle that "public officials in Tennessee are presumed to discharge
their duties in good faith and in accordance with the law." Id. at 131. That
presumption, however, is rebuttable. See, e.g., State v. Mangrum, 403
S.W.3d 152, 165 (Tenn. 2013) (recognizing the presumption of regularity
as merely placing a burden on the party asserting otherwise); City of Oak
Ridge v. Brown, No. E2004-01574-COA-R3CV, 2005 WL 1996620, at *1
(Tenn. Ct. App. Aug. 19, 2005) (finding "a presumption of regularity and
validity" that is "rebuttable"); Tremewan v. State, No. 71, 1989 WL 76319,
Mr. Hines anticipates that the State may, based on this language from West,
suggest that Mr. Hines is foreclosed from relief because he has not expressly styled
Claim 1.2 as being "as applied." Any such suggestion would be baseless. The question
of whether a claim based on a risk of maladministration that is specific to certain
conditions but not necessarily limited to a specific individual is an "as applied" claim
may pose an interesting terminological puzzle, but it has no bearing on Mr. Hines'
right to relief. "The label is not what matters," but rather a plaintiff s "claim and the
relief that would follow." John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010).
12
46
A-53
APPENDIX B
at *2 (Tenn. Crim. App. July 12, 1989) ("In the first place, any
presumption of regularity . . . was obviously rebutted by the record and
the testimony in this case."). Any presumption of regularity originally
owed regarding Physician A has been thoroughly rebutted by (1) the fact
that he apparently participated in executions without realizing the
extent of his responsibilities, which he later learned during a deposition;
(2) the fact that he has conceded that he had not performed a successful
central line placement in over thirteen years; and (3) the fact that he
actually botched an execution, after having been alerted to these issues.
Mr. Hines also anticipates that the State will argue that, because
courts have sometimes held that prolonged executions and repeated
catheterization attempts do not, in and of themselves, automatically
violate the Eighth Amendment, Mr. Hines cannot establish that the
specific risks posed here are sufficient to warrant relief. Mr. Hines,
however, is not asking this Court to make any holding about the general
topic of prolonged executions, or even the general topic of executions
involving multiple attempts at intravenous catheterization. Mr. Hines is
asking this Court only to address the specific risks posed by TDOC's
47
A-54
APPENDIX B
current protocol and personnel—risks that, as Mr. Carruthers' ordeal
showed, are likely to cause terror, pain, suffering, panic, and humiliation.
What Mr. Hines faces is the possibility that he, a severely disabled
victim of two recent strokes, will be pierced over and over again, in
numerous parts of his body, including his chest and neck, while knowing
that each successive stab may be the one that the State uses to kill him.
Then, if an attempt to administer pentobarbital goes forward, Mr. Hines
will face that attempt with full knowledge that, because TDOC's
intravenous catheterization personnel are unreliable, he may receive
only some or none of the poison into his circulatory system due to IV
infiltration or leakage—resulting in a prolonged and agonizing death or
near-death that leaves him further disabled. See Ex. 2 (Complaint) ¶¶
324-33, 357-64. The extraordinary suffering that such an experience will
entail cannot be overstated. See Ex. 23 (Decl. of Kate Porterfield).
Finally, while Rule 12.4(E) does not expressly incorporate the other
equitable
considerations
that
typically
complete
the
temporary/preliminary injunction standard, see Fisher v. Hargett, 604
S.W.3d 381, 394 (Tenn. 2020), there is little doubt that this Court may
and should incorporate such considerations—particularly the public
48
A-55
APPENDIX B
interest—in exercising its equitable powers in response to this request.
See Haley v. Univ. of Tenn.-Knoxville, 188 S.W.3d 518, 523 (2006) ("The
inherent power of the Court consists of all powers reasonably required to
enable a court to perform efficiently its judicial functions, to protect its
dignity, independence and integrity, and to make its lawful actions
effective.") (cleaned up). In this instance, the public interest, the interests
of justice, and the legitimate interests of the parties all point in the same
direction—to the removal of Physician A.
The State's extraordinary intransigence in refusing to replace
Physician A serves no purpose other than to spare certain Tennessee
public officials—particularly TDOC Commissioner Frank Strada—the
short-term embarrassment of implicitly admitting a misstep in relying
on Physician A in the first place. Commissioner Strada—whom
Tennessee's Lethal Injection Protocol grants sole and exclusive authority
to select an execution physician, see Ex. 5 at 11—was appointed by the
Governor as an explicit part of the Governor's efforts to resolve the
problems that led to the rescission of the State's previous lethal injection
protocol. See Ex. 24 (December 28, 2022 Press Release) at 1-2 (identifying
the hiring and onboarding of a new commissioner as part of the state's
49
A-56
APPENDIX B
"decisive actions to ensure that the department adheres to established
protocol"). Commissioner Strada was apparently selected based on his
perceived success as the Arizona official charged with lo]verseeing
executions," including by "[f]ormulating teams" to carry them out. See Ex.
25 (Excerpt of Deposition of Frank Strada) at 19-20.
That appearance of success, however, has since thoroughly
collapsed under the scrutiny of the very Arizona government that once
employed Commissioner Strada. In a letter to the Governor of Arizona on
November 22, 2024—well after Commissioner Strada had procured his
new position overseeing TDOC—Arizona Department of Corrections,
Rehabilitation, and Reentry Director Ryan Thornell explained that his
agency had performed a "full review" of the state's execution policies "in
order to confidently proceed with an execution" and concluded that
numerous "improvements" from the Strada-era status quo were
necessary in order to go forward. See Ex. 26 at 1.
Particularly prominent in Director Thornell's findings was
Arizona's
mishandling
of
procedures
surrounding
intravenous
catheterization. Director Thornell concluded that it was necessary to
overhaul the design and training of Arizona's IV Team and specifically
50
A-57
APPENDIX B
faulted the fact that execution run-throughs did not "include live
insertion of the IV catheter (with saline) to assist in preparing for realtime scenarios." Id. at 4. In Tennessee, however, Commissioner Strada
doubled down on Arizona's discarded approach by (1) weakening
Tennessee's requirements for the IV Team to copy Arizona's pre-revision
requirements virtually verbatim, compare Ex. 6 (2022 Arizona Protocol)
at 6 with Ex. 5 (2025 Tennessee Protocol) at 11, and (2) actually
abolishing Tennessee's pre-existing policv of performing live insertion of
the IV catheter in execution practice sessions, compare Ex. 4 (2018
Tennessee Protocol) at 32 with Ex. 5 (2025 Tennessee Protocol) at 12. It
is, in short, difficult to deny Commissioner Strada's personal interest in
avoiding any impression that errors were made.
What should matter to this Court, however, are the interests of the
State and its people, including the interests of the judicial system that
convicted Mr. Hines, sentenced him, and has now ordered his execution.
The State's use of an incompetent physician during the attempted
execution of Mr. Carruthers and TDOC's refusal to say whether it now
plans to use that same demonstrably under-qualified physician for the
scheduled execution of Mr. Hines has enormously undermined—and
51
A-58
APPENDIX B
continues to undermine—public confidence in Tennessee's judicial
process and executive branch.
In a letter to Governor Lee, several high-ranking Republican
members of the Tennessee General Assembly recently called on Governor
Lee to order an independent review of TDOC's "failed execution of Tony
Von Carruthers"—"including a full accounting of how the personnel
involved were selected, what credentials they held, and whether they
were qualified to perform the procedures the protocol requires." Ex. 27.
The lawmakers stated that every deficiency identified by such a review—
including the use of unqualified personnel—should be made public and
ought to be corrected "before the State attempts another execution." Id.
(emphasis added). According to the representatives, such actions are
necessary to ensure that the law is "carried out as it should be"—the
quintessential public interest. Id.
The State's decision to ignore the legislators' request and to move
forward with Mr. Hines' scheduled execution without replacing Physician
A undermines public confidence in the rule of law. As the lawmakers
themselves stated, if one supports "the lawful administration of the death
penalty," one "cannot accept its incompetent administration." Id. Thus,
52
A-59
APPENDIX B
the interests of the public—and, indeed, the interests of the State itself,
decoupled from the political concerns of individual Tennessee officials—
strongly support Mr. Hines' requested relief.
V.
REQUEST FOR RELIEF
For the reasons set forth herein, Mr. Hines respectfully requests
that this Court grant the following relief:
1.
Amend its Order of September 30, 2025, setting Mr. Hines'
execution date to prohibit the Tennessee Department of
Corrections from carrying out Mr. Hines' scheduled execution
without first replacing Physician A with an appropriately
skilled and qualified physician; or
2.
Grant Mr. Hines a special master proceeding so that he may
prove his likelihood of success on the merits of his chancery
court Claim 1.2, as it narrowly pertains to the State's
apparent intention to rely on Physician A in his upcoming
execution.
Respectfully submitted this the 20th day of July, 2026,
Drew S. Brazer, BPR #042363
Katherine Dix, BPR #22778
Marshall Jensen, BPR #036062
Asst. Federal Public Defender
53
A-60
APPENDIX B
Elijah W. Swiney, BPR#026626
Research & Writing Specialist
Kit Thomas, pro hac vice pending
Deputy Chief, Capital Habeas Unit
Amy D. Harwell, BPR#18691
First Asst. Federal Public Defender
FEDERAL PUBLIC DEFENDER
MIDDLE DISTRICT OF TENNESSEE
The Berger Building
164 Rosa L. Parks Blvd.
Nashville, TN 37203
Phone: (615) 736-5047
Fax: (615) 736-5265
Email: Katherine_Dix@fd.org
.4kkaA.L&-Q_a
.
CA/E
Katherine Dix, BPR #22778
Counsel for Movant
54
A-61
APPENDIX B
CERTIFICATE OF SERVICE
I, Katherine Dix, certify that on July 20, 2026, a true and correct
copy of the foregoing was served via electronic mail to opposing counsel,
Nicholas W. Spangler, Associate Solicitor General.
6 -tuvt)4 m 0-(1
Katherine Dix, BPR #22778
Counsel for Movant
55
A-62
APPENDIX C
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE,
Respondent,
v.
ANTHONY DARRELL
DUGARD HINES,
Movant.
)
)
)
)
)
)
)
)
)
)
No. M2025-00221-SC-DPE-DD
Cheatham County
Circuit Court No. 9852
CAPITAL CASE
Execution: August 13, 2026
STATE’S RESPONSE IN OPPOSITION TO THE MOTION FOR
AN AMENDED EXECUTION ORDER, A SPECIAL MASTER, AND
A CONDITIONAL STAY OF EXECUTION
JONATHAN SKRMETTI
Attorney General and Reporter
MADELINE W. CLARK
Solicitor General
NICHOLAS W. SPANGLER
Special Counsel
Office of the Attorney General
P.O. Box 20207
Nashville, Tennessee 37202
(615) 741-3486
Nick.Spangler@ag.tn.gov
B.P.R. No. 027552
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INTRODUCTION
More than forty-one years ago, Anthony Darrell Dugard Hines
brutally murdered Catherine 1 Jean Jenkins, a maid at the Ce’Bon Motel
off I-40 in Kingston Springs. She died from knife stab wounds to her
chest and vagina.
A Cheatham County jury convicted Hines after
considering overwhelming proof of his guilt, including his admission to
stabbing someone at the motel and his possession of Jenkins’ car and car
keys shortly after her murder. State v. Hines, 758 S.W.2d 515, 518-19
(Tenn. 1988). This Court affirmed Hines’ death sentence in 1995 on the
strength of two aggravating circumstances, including that the stab
wound to Jenkins’ vagina “was sufficient to support a finding that . . .
[her] murder involved torture.” State v. Hines, 919 S.W.2d 573, 581
(Tenn. 1995).
But Jenkins’ family has yet to see justice done. Nearly four decades
after his crime, Hines completed the three-tier appeals process. Mays v.
Hines, 141 S. Ct. 2693 (2021). This Court later set an execution date
under Tenn. Sup. Ct. R. 12(4)(E). Order, State v. Hines, No. M202500221-SC-DPE-DD (Tenn. Sept. 30, 2025).
Now, just twenty-four days before his scheduled execution on
August 13, 2026, Hines seeks a conditional stay, discovery review, and
specific injunctive relief prohibiting the State from employing a
particular physician to attend his execution. Hines only guesses that the
1 Jenkins’ family has assured that this is the correct spelling of her first
name despite prior misspelling in some court documents.
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State might use a physician who might be unqualified to establish a
backup central IV line during his execution. He frets that the physician
might not be able to establish a backup central IV line if needed. And he
wildly suggests—in a desperate attempt to implicate the Eighth
Amendment—that all these stacked, remote possibilities “present[] a risk
that is sure or very likely to cause serious illness and needless suffering
and give rise to sufficiently imminent dangers.” West v. Schofield, 519
S.W.3d 550, 563 (Tenn. 2017) (cleaned up and emphasis added).
But this Court cannot grant discovery or specific injunctive relief in
the first instance, and it “will not grant a stay or delay of an execution
date pending resolution of collateral litigation in state court unless the
prisoner can prove a likelihood of success on the merits.” Tenn. Sup. Ct.
Rule 12(4)(E). And Hines cannot. His claim that the State’s “execution
method may result in pain, either by accident or as an inescapable
consequence of death, does not establish the sort of objectively intolerable
risk of harm that qualifies as cruel and unusual” because “[s]ome risk of
pain is inherent in any method of execution—no matter how humane—if
only from the prospect of error in following the required procedure.” Baze
v. Rees, 553 U.S. 35, 47, 50 (2008) (plurality op.) (cleaned up and
emphasis added). “[M]ere possibilities” or “hypothetical[s]”—like Hines’
allegations about the “risk of maladministration”—“are not sufficient to
satisfy [his] burden to establish a substantial risk of severe pain.” West,
519 S.W.3d at 564-65 (quoting Baze, 553 U.S. at 62).
Thus, Hines’
maladministration claim is “all but foreclosed,” Cooey v. Strickland, 589
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F.3d 210, 225 (6th Cir. 2009), as a matter of law because an alleged
“potential flaw” in administration is too speculative “to state an Eighth
Amendment claim,” Zink v. Lombardi, 783 F.3d 1089, 1101 (8th Cir.
2015).
The U.S. Supreme Court has never struck down a method of
execution as cruel and unusual under the Eighth Amendment. Barr v.
Lee, 591 U.S. 979, 980 (2020) (per curiam). And this Court has upheld
Tennessee’s
lethal-injection
procedures
against
every
challenge.
Abdur’Rahman v. Parker, 558 S.W.3d 606 (Tenn. 2018); West, 519 S.W.3d
550; Abdur’Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005). Hines
has no likelihood of any different outcome with his latest grasping attack.
Jenkins’ family has a constitutional right to “a prompt and final
conclusion of the case after the conviction or sentence.” Tenn. Const. art.
I, § 35. Hines’ delay-seeking motion subverts that grave public interest
in finality. And his egregious delay in filing the motion is reason enough
to deny it.
The Court should deny Hines’ motion.
BACKGROUND
I.
Legal Background
The Eighth Amendment bars the infliction of “cruel and unusual
punishments.”
U.S. Const. amend. VIII.
“Similarly to the federal
constitution, the Tennessee Constitution provides that ‘excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.’” West, 519 S.W.3d at 567 (quoting Tenn. Const.
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art. I, § 16). Because there is “no difference in language” that would
warrant “application of a different standard,” this Court analyzes the two
constitutional provisions using the U.S. Supreme Court’s Eighth
Amendment framework. Id. at 568 n.16; accord Abdur’Rahman, 558
S.W.3d at 616.
A.
The U.S. and Tennessee Constitutions do not demand
avoidance of all pain in executions.
The U.S. “Constitution allows capital punishment.” Bucklew v.
Precythe, 587 U.S. 119, 129 (2019). That approval reflects the death
penalty’s status as an “accepted punishment at the time of the adoption
of the Constitution and the Bill of Rights.” Glossip v. Gross, 576 U.S. 863,
867-68 (2015). This Court, too, “repeatedly has upheld the death penalty
as permissible under the Tennessee Constitution.” West, 519 S.W.3d at
568 n.17 (collecting cases).
“[B]ecause it is settled that capital punishment is constitutional, it
necessarily follows that there must be a constitutional means of carrying
it out.” Glossip, 576 U.S. at 869 (quoting Baze, 553 U.S. at 47). That
“recognition” has “animated” this Court’s and the U.S. Supreme Court’s
interpretation of the cruel-and-unusual punishment prohibition. Id.; see
Abdur’Rahman, 558 S.W.3d at 615 (discussing Baze, 553 U.S. at 47). A
few general principles from the precedents are particularly relevant here.
To begin, “the Eighth Amendment does not guarantee a prisoner a
painless death—something that, of course, isn’t guaranteed to many
people, including most victims of capital crimes.” Bucklew, 587 U.S. at
132-33. After all, “[s]ome risk of pain is inherent in any method of
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execution—no matter how humane—if only from the prospect of error in
following the required procedure.” Baze, 553 U.S. at 47. If the Eighth
Amendment “demand[ed] the elimination of essentially all risk of pain,”
that “would effectively outlaw the death penalty altogether.” Glossip, 576
U.S. at 869. So, the mere fact that “an execution method may result in
pain, either by accident or as an inescapable consequence of death, does
not establish the sort of ‘objectively intolerable risk of harm’ that
qualifies as cruel and unusual.” Baze, 553 U.S. at 50 (quoting Farmer v.
Brennan, 511 U.S. 825, 842, 846, and n.9 (1994)).
Instead, the cruel-and-unusual-punishment provision prohibits
only “long disused (unusual) forms of punishment that intensified the
sentence of death with a (cruel) superaddition of terror, pain, or
disgrace.” Bucklew, 587 U.S. at 133 (citation omitted). That emphasis
on the State’s “malevolence,” Baze, 553 U.S. at 50, in carrying out a
“wanton infliction of pain,” Abdur’Rahman, 181 S.W.3d at 306, reflects
Founding-era history. As ratified, the provision draws from the English
Bill of Rights “to ensure that the new Nation would never resort” to
“certain barbaric punishments” previously practiced. City of Grants Pass
v. Johnson, 603 U.S. 520, 542 (2024). Among them: “disemboweling,
quartering, public dissection, and burning alive,” id., as well as “the use
of the rack or the stake,” “breaking on the wheel, flaying alive, rending
asunder with horses, maiming, mutilating, and scourging to death,”
Bucklew, 587 U.S. at 131 (cleaned up). Uniting these off-limits methods
is their “unnecessary cruelty”—meaning the method chosen “savored of
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torture” and reflected the executioners’ being “pleased with hurting
others.” Id. at 130-31.
To help draw that line, courts look to the modes of execution the
Eighth Amendment was understood to forbid with those it was
understood to permit.
Hanging was the predominant method of
execution at the Founding and for decades thereafter. Glossip, 576 U.S.
at 867. Yet “[m]any and perhaps most hangings were evidently painful
for the condemned person because they caused death slowly.” Bucklew,
587 U.S. at 132 (quoting S. Banner, The Death Penalty: An American
History 48 (2002) (Banner)). But hanging’s use was “virtually never
questioned” under the Eighth Amendment. Id. (quoting Banner, supra,
at 48). As the U.S. Supreme Court observed, hanging’s lawful status
presumably reflects that it was not “intended to be painful”; instead, the
risk of pain involved was considered “unfortunate but inevitable.” Id. at
131 (quoting Banner, supra, at 170).
The U.S. Supreme Court has
employed similar reasoning to uphold death by firing squad, Wilkerson v.
Utah, 99 U.S. 130, 134-135 (1879), the electric chair, In re Kemmler, 136
U.S. 436 (1890); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463464 (1947) (plurality opinion) (upholding electrocution of prisoner despite
initial failed attempt), and lethal injection, Bucklew, 587 U.S. 119;
Glossip, 576 U.S. 863; Baze, 553 U.S. 35.
To sum up: The U.S. and Tennessee Constitutions do not “demand
the avoidance of all risk of pain in carrying out executions,” meaning a
method is permissible even if pain occurs by “accident or as an
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inescapable consequence of death.”
Bucklew, 587 U.S. at 130, 134.
Instead, punishments are constitutionally suspect only when the method
“‘superadds’ pain well beyond what’s needed to effectuate a death
sentence.” Id. at 137. Any other rule would impermissibly coopt “courts
to serve as boards of inquiry charged with determining best practices for
executions,” “with each ruling supplanted by another round of litigation
touting a new and improved methodology.” Id. at 134 (citation omitted);
Baze, 553 U.S. at 101.
B.
Method-of-execution claims face an exceedingly high
bar to prevail.
The U.S. Supreme Court “has yet to hold that a State’s method of
execution qualifies as cruel and unusual.” Lee, 591 U.S. at 980 (quoting
Bucklew, 587 U.S. at 133). “[U]nderstandably so.” Bucklew, 587 U.S. at
133. Tennessee and other States, working “through the initiative of the
people and their representatives,” have historically endeavored to adopt
“less painful modes of execution.” Id.
Courts facing method-of-execution claims like Hines’ apply a “twoprong test” under both the U.S. and Tennessee Constitutions. West, 519
S.W.3d at 567; see Bucklew, 587 U.S. at 133-34. Challengers face an
“exceedingly high bar” to relief. 91 U.S. at 980. The demanding two-step
standard reflects that “the Constitution affords a measure of deference to
a State’s choice of execution procedures.” Bucklew, 587 U.S. at 134. It
also helps prevent “method-of-execution claims from becoming a
backdoor means to abolish the death penalty.” Id. at 137 (cleaned up).
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First, an inmate must establish that a given method “presents a
risk that is sure or very likely to cause serious illness and needless
suffering and give rise to sufficiently imminent dangers.” West, 519
S.W.3d at 563 (cleaned up) (quoting Glossip, 576 U.S. at 877). The
method must “present[] a ‘substantial risk of serious harm’—serious pain
over and above death itself.” Nance v. Ward, 597 U.S. 159, 164 (2022)
(quoting Glossip, 576 U.S. at 877).
“[M]ere possibilities” or
“hypothetical[s]”—like allegations of the “risk of maladministration” or
“improper” handling of drugs—“are not sufficient to satisfy [an inmate’s]
burden to establish a substantial risk of severe pain.” West, 519 S.W.3d
at 564-65 (quoting Baze, 553 U.S. at 62) (collecting cases).
Second, the inmate must “show a feasible and readily implemented
alternative method of execution that would significantly reduce a
substantial risk of severe pain and that the State has refused to adopt
without a legitimate penological reason.” Bucklew, 587 U.S. at 134. “A
minor reduction in risk is insufficient; the difference must be clear and
considerable.” Id. at 143. Further, a challenger must establish that the
State “could carry . . . out” the alternative method “‘relatively easily and
reasonably quickly.’” Id. at 141 (citation omitted).
C.
Tennessee’s uniformly upheld methods of execution.
Tennessee historically executed “by hanging.” Shipp v. State, 172
S.W. 317, 318 (Tenn. 1914) (quoting Shannon’s Code § 6442). Although
never deemed an unconstitutional punishment, Tennessee eventually
followed other States’ lead to replace it with electrocution. Id. Tennessee
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used electrocution as its method of execution for decades, with the
Tennessee Supreme Court holding—time and again—that this was not a
“cruel and unusual punishment.” See, e.g., State v. Suttles, 30 S.W.3d
252, 263 (Tenn. 2000) (collecting cases).
Tennessee adopted lethal injection as a method of execution in
1998, Tenn. Code Ann. § 40-23-114 (Supp. 1998), because it was widely
touted as a “more humane” alternative to “electrocution.”
State v.
Adkins, 725 S.W.2d 660, 664 (Tenn. 1987); see Suttles, 30 S.W.3d at 264
(citing 1998 Tenn. Pub. Acts ch. 982; 2000 Tenn. Pub. Acts ch. 2000). Two
years later, it became the State’s default method of execution and has
remained so ever since. 2
Tenn. Code Ann. § 40-23-114 (Supp. 2000);
State v. Morris, 24 S.W.3d 788, 797 (Tenn. 2000). In 2004, this Court
upheld the use of lethal injection as a constitutionally permissible means
of execution.
State v. Robinson, 146 S.W.3d 469, 529 (Tenn. 2004)
(appendix).
But challenges to the particulars of the State’s lethal-
injection protocols continued to proliferate.
Three-Drug Protocol. At first, Tennessee used a common three-drug
“protocol” (using utilizing sodium pentothal, pancuronium bromide, and
potassium chloride) to effectuate lethal injections. Abdur’Rahman, 181
S.W.3d at 300. The drugs in that protocol “put[] the inmate to sleep,”
2 If lethal injection is held unconstitutional or lethal-injection drugs are
unavailable, then the method of execution shifts to electrocution. Tenn.
Code Ann. § 40-23-114(e). Persons sentenced to death for offenses
committed before 1999 may also choose to be executed by electrocution.
Id. § 40-23-114(b).
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then “stop[ped his] breathing,” then “stop[ped his] heart.” Id. This Court
repeatedly upheld three-drug protocols across multiple challenges. See
id. at 297-98; accord Abdur’Rahman, 558 S.W.3d at 610 (upholding
protocol using midazolam, vecuronium bromide, and potassium chloride).
The U.S. Supreme Court did the same in Baze and Glossip.
But opponents of capital punishment continue to make lethalinjection methods difficult for States to pursue.
States’ need for
injectable drugs made them more dependent upon drug manufacturers,
who in turn were “lobbied” to cease participation in executions by “[a]ntideath-penalty advocates.”
Glossip, 576 U.S. at 871.
States like
Tennessee faced “ongoing difficulty in obtaining” required drugs and had
to continue to revise their protocols accordingly. Abdur’Rahman, 558
S.W.3d at 611-12, 616; see Glossip, 576 U.S. at 869-72 (describing this
widespread problem).
Single-Drug Protocol with Pentobarbital.
In 2013, the State
adopted a single-drug protocol that causes sedation and death through
the injection of pentobarbital. See West, 519 S.W.3d at 552 (citing Tenn.
Code Ann. § 40-23-114(c) (2012)). As used in executions, pentobarbital
works to “repress the brain’s respiratory impulses, causing the body to
become oxygen deficient and resulting in the cessation of cardiac
activity.” West, 519 S.W.3d at 556. But it causes “a quick and complete
loss of consciousness” first. Id. at 557; see id. at 560-61.
Given its efficacy, the “single-dose pentobarbital” protocol has “been
repeatedly invoked by prisoners as a less painful and risky alternative to
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the lethal-injection protocols of other jurisdictions. Lee, 591 U.S. at 980.
That goes for Hines too. See Abdur’Rahman, 558 S.W.3d at 612 (inmates
cited single-dose pentobarbital as “alternative” preferred method). And
Justices of the U.S. Supreme Court have cited single-dose pentobarbital
as a “significantly less risky alternative” method given that pentobarbital
“does not carry the risks” of other drugs and “is widely conceded to be
able to render a person fully insensate.” Zagorski v. Parker, 586 U.S. 938,
939 (2018) (Sotomayor, J., dissenting).
As it stands, pentobarbital “has become a mainstay of state
executions.” Lee, 591 U.S. at 980. As of 2020, it had “been used to carry
out over 100 executions, without incident.” Id. And its use has been
upheld by the U.S. Supreme Court, federal circuit courts, and several
state courts of last resort. See, e.g., Bucklew, 587 U.S. at 119; Whitaker
v. Collier, 862 F.3d 490, 497-99 (5th Cir. 2017); Jones v. Comm’r, 811 F.3d
1288, 1296 (11th Cir. 2016); Zink v. Lombardi, 783 F.3d 1089, 1098-1101
(8th Cir. 2015); Gissendaner v. Comm’r, 779 F.3d 1275, 1283 (11th Cir.
2015); West, 519 S.W.3d at 564-65; State ex rel. Johnson v. Blair, 628
S.W.3d 375, 388-90 (Mo. 2021) (en banc); Owens v. Hill, 758 S.E.2d 794,
802-03 (Ga. 2014); Valle v. Florida, 70 So.3d 530, 541 (Fla. 2011).
This Court, for its part, rejected constitutional challenges to the
State’s 2013 one-drug pentobarbital protocol. In West, the Court applied
the two-prong method-of-execution test to conclude that the use of a
single dose of compounded pentobarbital did not violate the U.S. or
Tennessee Constitutions’ prohibition on cruel and unusual punishments.
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519 S.W.3d at 568. The Court rejected speculations about pain that
might occur if pentobarbital did not work as intended. Id. at 564. It also
rejected the claim that pentobarbital exposed inmates to “an
unacceptable risk of a lingering death” when pentobarbital “causes
unconsciousness within seconds.” Id. at 567. And “mere possibilities” of
protocol maladministration, the Court explained, are “not sufficient to
satisfy the [inmates’] burden to establish a substantial risk of severe
pain.” Id. at 564.
Later and Current Protocols. The shifting availability of lethalinjection drugs has forced TDOC to change its lethal-injection procedures
several times in the past decade.
When pentobarbital became
unavailable, TDOC had to revise procedures again, adopting a new threedrug alternative protocol using midazolam (a sedative in the
benzodiazepine family of drugs) followed by vecuronium bromide (a
paralytic agent) and potassium chloride (a heart-stopping agent).
Abdur’Rahman, 558 S.W.3d at 611, 616. In late 2018, TDOC adjusted
the protocol to make the three-drug alternative “the exclusive method of
execution by lethal injection in Tennessee.” Id. at 611-12. In early 2025,
the State reverted to a pentobarbital protocol.3
II.
Factual Background
On March 3, 1985, Anthony Hines murdered Catherine Jean
Jenkins, a maid at the Ce’Bon Motel off I-40 in Kingston Springs. Hines,
TDOC Completes Lethal Injection Protocol Review, (Dec. 27, 2024),
https://tinyurl.com/2xftey5t
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758 S.W.2d at 517. She died from multiple stab wounds to her chest by
a large knife. Id. She also sustained a stab wound to her vagina, and the
medical examiner described several defensive wounds on her hands and
arms. Id.
Two days earlier, Hines left Raleigh, North Carolina, after his
girlfriend’s mother bought him a $20 bus ticket that he could not afford.
Id. at 517-18. Concealed beneath his shirt was a hunting knife that he
always carried. Id. at 518. Hines checked into the Ce’Bon Motel in the
predawn hours of March 3. Id. Around 9:30 that morning, the motel
manager left Jenkins in charge and gave her a bank bag to make change
for guests. Id. at 517.
That afternoon, a motel guest, Ken Jones, contacted law
enforcement after discovering Jenkins’ body wrapped in a sheet in one of
the motel rooms. Id. Her clothing had been pulled up to her breasts, and
her torn underwear was found elsewhere in the room. Id. Jenkins’
bloody and empty bank bag was also in the room, but her car keys and
billfold were missing. Id. Around the same time Jenkins’ body was
discovered, a motel employee saw a man speed away in Jenkins’ Volvo.
Id. at 518. Stab marks on the walls of Hines’ motel room resembled the
stab wounds on Jenkins’ body. Id. at 518-19.
Later that day, motorists on I-65 near Bowling Green, Kentucky,
offered Hines a ride after finding him with Jenkins’ broken-down Volvo
and dried blood on his shirt. Id. at 518. The group drove Hines to his
sister’s house. Id. When his sister noticed the blood on Hines’ shirt, he
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admitted stabbing someone at the motel but claimed it was a man who
assaulted him. Id. When Hines’ family noticed he had keys to a Volvo,
he said he took them during a struggle with a different man who tried to
rob him.
Id.
Hines also purchased a barbeque grill for his sister,
insisting that he had come into a substantial sum of money despite not
having $20 for a bus ticket just a few days earlier. Id.
After hiding for eight days in the hills of Cave City, Kentucky,
Hines turned himself in and offered up a new story, insisting that he took
Jenkins’ car but did not murder her. Id. He also offered to confess to the
murder if he could be guaranteed a death sentence. Id.
III. Procedural Background
A.
Hines’ death sentence survived exhaustive review.
This Court affirmed Hines’ murder conviction in 1985, Hines, 758
S.W.2d at 524, and it affirmed his death sentence in 1995 after an initial
remand for resentencing, Hines, 919 S.W.2d at 584.
Hines next
unsuccessfully sought state post-conviction relief. Hines v. State, No.
M2004-01610-CCA-RM-PD, 2004 WL 1567120, at *39 (Tenn. Crim. App.
July. 14, 2004), perm. app. denied (Tenn. Nov. 29, 2004).
The U.S.
Supreme Court then denied federal habeas relief after fifteen more years
of litigation. Mays v. Hines, 592 U.S. 385 (2021) (per curiam).
B.
Hines repeatedly attacks execution procedures.
Having failed in overturning his criminal judgment, Hines then
turned to attacking the State’s execution procedures. Eight years ago,
after the State stopped using pentobarbital in executions due to
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unavailability, Hines unsuccessfully sued to force use of that drug for his
execution. Abdur’Rahman, 558 S.W.3d at 612 n.6. Then on March 14,
2025, more than two months after the State reverted to a single-drug
pentobarbital protocol, he filed a second method-of-execution suit in
Davidson County Chancery Court. He attacks that protocol through a
148-page complaint raising seven distinct claims. Mot. Ex. 2.
Relevant here, in Claim 1.2, Hines alleges that even if using
pentobarbital were constitutional, the protocol carries an intolerable risk
of maladministration that inflicts severe suffering. Mot. Ex. 2 at ¶¶ 68494.
He says that the risk of an unconstitutional execution is
“substantially increased” if the protocol is administered by persons “not
sufficiently trained,” Mot. Ex. 2 at ¶ 687, or conducted by persons without
“a consistent, universally shared commitment to complying with all
applicable laws and policies,” Mot. Ex. 2 at ¶ 688. He believes the risk of
a “tortuous death by pentobarbital poisoning” is enhanced “if the
individuals charged with preparing the pentobarbital, setting the
intravenous (‘IV’) line, and administering the pentobarbital are
incompetent, insufficiently trained, insufficiently dedicated to doing their
jobs properly, and/or insufficiently attentive.” Mot. Ex. 2 at ¶ 315. But
he concedes that if execution by pentobarbital is constitutional, it is a
readily available and feasible method of execution “after” TDOC has
taken “adequate remedial steps.” Mot. Ex. 2 at ¶ 691.
In support of Claim 1.2, Hines has repeatedly sought information
about execution participants. The media publicized the name of the
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physician who participated in Byron Black’s execution after a document
from the Davidson County Medical Examiner revealed that information.4
Hines deposed that physician on October 27, 2025. Mot. Ex. 12.
Hines then sought an admission that the deposed physician would
serve the same role in Hines’ execution. Resp. Ex. 1. The State objected,
arguing that the identities of future execution participants are privileged
and confidential under Tenn. Code Ann. § 10-7-504(h)(1), West v.
Schofield, 460 S.W.3d 113, 126 (Tenn. 2015), and a common-law
privilege. Resp. Ex. 2. The State argued that even if the identity of a
past physician was known, protection over the identity of a future
attending physician had not been waived. Resp. Ex. 2. The State also
argued that a future physician’s identity was irrelevant to Claim 1.2.
Resp. Ex. 2.
On July 17, 2026, the chancery court found that any protection of
the physician’s identity had been waived. Mot. Ex. 1. The court also
found that the identity of the physician for Hines’ execution was relevant.
Mot. Ex. 1.
It ordered the State to respond to Hines’ request for
admission but stayed service of that response “pending resolution of the
underlying issues by a higher court pursuant to an appropriate
procedural vehicle.” Mot. Ex. 1 (emphasis added).
Catherine Sweeney, Autopsy sheds light on Byron Black’s painful
execution (Sept. 11, 2025), https://tinyurl.com/7v5xcdba.
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C.
Hines moves for a conditional stay or special master.
On July 20, 2026—sixteen months after filing suit in chancery
court—Hines filed a motion under Tenn. Sup. Ct. R. 12(4)(E) to amend
this Court’s order setting his execution date, to appoint a special master,
and to seek a “conditional stay of execution.” Mot. at 1. He first invites
this Court to review the State’s opposition to his discovery request for the
identity of the physician who will attend his execution. Mot. at 3. He
then demands a “conditional stay of execution” if the State refuses to
replace the physician who participated in a prior aborted execution of
another inmate. Mot. at 3. Finally, he “requests the appointment of a
special master” for the opportunity to prove a likelihood of success on
Claim 1.2 of his pending civil suit.
LEGAL STANDARD
After an execution date is set, “any state court collateral litigation
that would potentially affect the method or timing of execution must
commence with the filing of a motion” in this Court. Tenn. Sup. Ct. R.
12(4)(E). “If the collateral litigation may involve fact-finding, the moving
party must request the appointment of a special master, consistent with
the procedures outlined in Tennessee Rule of Civil Procedure 53.” Id.
“[T]he Court will not grant a stay or delay of an execution date pending
resolution of collateral litigation in state court unless the prisoner can
prove a likelihood of success on the merits in that litigation.” Id.
Hines’ “pending challenge to the lethal injection protocol clearly
constitutes collateral litigation” for the purposes of Rule 12. State v.
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Irick, 556 S.W.3d 686, 689 (Tenn. 2018). So, to receive a stay “he must
prove that he has a likelihood of succeeding on the merits of that
litigation.” Id. “In order to establish a likelihood of success on the merits
of a claim, [Hines] must show more than a mere possibility of success.”
Id. (quoting Six Clinics Holding Corp. II v. Cafcomp Sys., 119 F.3d 393,
402 (6th Cir. 1997)). He must show “a significant possibility of success
on the merits.” Hill v. McDonough, 547 U.S. 573, 584 (2006). That is, he
must “raise questions going to the merits so serious, substantial, difficult,
and doubtful as to make them a fair ground for litigation and thus for
more deliberate investigation.” Six Clinics Holding Corp., II, 119 F.3d at
402.
REASONS TO DENY THE MOTION
I.
Rule 12 Does Not Offer Conditional Stays or Interlocutory
Review of Discovery Orders.
This Court has power under Rule 12 to stay an execution, but it
does not have original jurisdiction to adjudicate the merits of collateral
litigation or resolve discovery disputes. That is what Hines’ “conditional
stay” motion seeks—an order from this Court requiring the State to swap
out the physician that Hines assumes will participate in his execution.
As this Court’s recent orders confirm, Rule 12 authorizes a stay of
execution and nothing more. It does not confer original jurisdiction to
decide the merits of any collateral litigation, let alone the power to issue
specific injunctive relief based on pending state-court claims. And it is
certainly not a backdoor for appealing discovery orders. Hines’ motion
should be denied.
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APPENDIX C
A.
The Court should deny a conditional stay.
Hines’ request for a conditional stay of execution seeks specific
injunctive relief on his original collateral litigation—relief that Rule
12(4)(E) does not offer. Rule 12(4)(E) provides only for a temporary stay
of execution to “facilitate[] existing state collateral proceedings.” Order,
State v. Carruthers, No. W1997-00097-SC-DDT-DD (Feb. 17, 2026).
Hines rightly concedes that his request “falls outside” “Rule[] [12’s]
plain language.” Mot. at 33. He then makes an atextual plea to this
Court’s “inherent authority.” Mot. at 4, 32, 38, 49. But “[t]he inherent
powers of a court do not increase its jurisdiction; they are limited to such
powers as are essential to the existence of the court and necessary to the
orderly efficient exercise of its jurisdiction.” Anderson Cty. Quarterly
Court v. Judges of 28th Judicial Circuit, 579 S.W.2d 875, 879 (Tenn. Ct.
App. 1978) (citing 20 Am.Jur.2d Courts § 78 (1964)). And granting Hines
specific injunctive relief on Claim 1.2 in the first instance would be
contrary to the exercise of the Court’s appellate jurisdiction.
This Court has no original jurisdiction to adjudicate or grant
specific and permanent injunctive relief on Claim 1.2 in the first instance.
The Tennessee Constitution provides that “[t]he jurisdiction of this court
shall be appellate only, under such restrictions and regulations as may
from time to time be prescribed by law.” Tenn. Const. Art. VI, § 2. And
this Court has consistently observed that limitation on its jurisdiction for
more than a century. See Peck v. Tanner, 181 S.W.3d 262, 265-66 (Tenn.
2005) (collecting cases). As the Court recently explained, “the December
20
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APPENDIX C
2025 amendment to Rule 12(4)(E) neither created a new procedural
avenue nor granted this Court original jurisdiction to adjudicate an
eleventh-hour . . . claim.” Order, State v. Carruthers, No. W1997-00097SC-DDT-DD (Apr. 30, 2026).
This Court has now twice held that “a motion under Rule 12(4)(E)
must ‘incorporate [a] . . . motion for a stay of execution.’” Order, Pike v.
Skrmetti, No. M2026-00667-SC-UNK-CV (Jul. 10, 2026) (quoting Order,
Pike v. Skrmetti, No. M2026-00667-SC-UNK-CV (May 12, 2026)). That
is because a stay of execution is the only relief offered by Rule 12.
“[B]ecause [Hines’] motion [essentially] asks this Court to permanently
enjoin state officials from carrying out h[is] execution” unless his
demands are met, the Court should simply “construe h[is] motion as
requesting a stay of execution.”
Id.
And the Court should deny it
because, as explained below, infra Part II, Hines cannot “prove a
likelihood of success on the merits.” Tenn. Sup. Ct. Rule 12(4)(E).
B.
The Court should deny review of a discovery order.
The Court should also deny Hines’ passing invitation to review the
State’s response to his discovery request for the identity of the physician
employed to attend his execution. Mot. at 3. Hines effectively seeks this
Court’s interlocutory review of the chancery court’s discovery order. Mot.
Ex. 1. But nothing in the text of Rule 12 supports that request. And the
Court’s inherent authority does not expand its jurisdiction to directly
evaluate the discovery order outside the recognized avenues for
interlocutory review prescribed by law—avenues Hines has not even
21
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APPENDIX C
pursued. Nor does it allow the Court to order the discovery of irrelevant
information about the identity of a future execution participant.
This Court has no original or appellate jurisdiction to settle Hines’
discovery dispute. Appeals of interlocutory orders like the discovery
order here are “an exception to the general rule that requires a final
judgment before a party may appeal as of right.” State v. Gilley, 173
S.W.3d 1, 5 (Tenn. 2005). Such appeals are generally disfavored and
authorized only under the rules of appellate procedure. Id. (citing United
States v. MacDonald, 435 U.S. 850, 853 (1978)); see also Reid v. State,
197 S.W.3d 694, 699 (Tenn. 2006). Indeed, “[u]nless an appeal from an
interlocutory order is provided by the rules or by statute, appellate courts
have jurisdiction over final judgments only.” Bayberry Assocs. v. Jones,
783 S.W.2d 553, 559 (Tenn. 1990) (citing Aetna Cas. & Sur. Co. v. Miller,
491 S.W.2d 85, 86 (Tenn. 1973)).
The path for Hines to seek an interlocutory appeal is Tenn. R. App.
P. 9(a) and (c), which requires the permission of both the trial court and
appellate court upon application. Or in exceptional circumstances, Tenn.
R. App. P. 10(a) provides that “[a]n extraordinary appeal may be sought
on application and in the discretion of the appellate court alone of
interlocutory orders of a lower court.” But the filing deadlines to this
Court under Rule 9(c) and 10 are jurisdictional. Tenn. R. App. P. Rule 2;
see also In re Malone, 691 S.W.3d 365, 370 (Tenn. 2024) (“[W]ith an
interlocutory appeal, the appellate court’s jurisdiction is limited to the
issues specified in the appellate court’s order granting permission for the
22
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APPENDIX C
appeal, and the balance of the case remains in the province of the trial
court[.]”)
Hines has not sought interlocutory review of the chancery court’s
discovery order under either Rule 9 or 10.
Thus, this Court lacks
jurisdiction—much less inherent authority—to review that order. In re
Estate of Boykin, 295 S.W.3d 632, 636 (Tenn. Ct. App. 2008).
In any event, Hines’ demand for the identity of the attending
physician is contrary to law. Parties have no right to discover privileged
or irrelevant information. Tenn. R. Civ. P. 26.02(1); West, 460 S.W.3d at
121. And the identity of the physician who will attend Hines’ execution
is both privileged and irrelevant.
The identities of past, present, and future execution participants
are privileged, confidential, and not subject to disclosure under Tenn.
Code Ann. § 10-7-504(h)(1). That statute protects the identity of anyone
“who [is] or that has been or may in the future be directly involved in the
process of executing a sentence of death.”
Tenn. Code Ann. § 10-7-
504(h)(1) (emphasis added). When the General Assembly amended § 107-504(h)(1) in 2014, it “intended . . . to protect the identities of all persons
and entities participating in the execution of a convicted murderer
sentenced to death.” West, 460 S.W.3d at 122. That protection extends
over attending physicians.
And that protection was never waived by the State.
A past
attending physician’s identity was first revealed to the public in a
document from the Davidson County Medical Examiner that was
23
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APPENDIX C
reported in the media in September 2025. 5
Later media accounts
attributed the unmasking of the past attending physician to court filings
by the Federal Public Defender’s office. 6 While the media may have outed
that past physician, it is not publicly known whether that same physician
will attend Hines’ future execution—hence Hines’ present illegal
discovery demand.
The identity of any future attending physician is also irrelevant to
Hines’ Claim 1.2, which includes no alleged risk of maladministration
due to contingent physician participation or their contingent procedure
for placing a backup central IV line. Mot. Ex. 2 at 64-69. The complaint
includes no allegation that there is any risk of maladministration due to
the physician or the procedure to place a central line. Mot. Ex. 2. Given
this failure to plead any particular facts about physician participation or
central line placement, discovery about any future physician who may or
may not place a central line is “not relevant.” West, 460 S.W.3d at 126.
Even if this Court finds it has jurisdiction to directly supervise
Hines’ discovery dispute in chancery court, it should conclude that the
identity of the attending physician is privileged, irrelevant, and not
subject to compelled disclosure.
Catherine Sweeney, Autopsy sheds light on Byron Black’s painful
execution (Sept. 11, 2025), https://tinyurl.com/7v5xcdba.
5
6 Steven Hale, Questions Raised About the Doctor Who Was Overseeing
Tony Caruthers’ Execution (May 22, 2026), https://tinyurl.com/3hybpn26.
24
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APPENDIX C
II.
Claim 1.2 Has No Likelihood of Success.
Many courts, including this one, have held that claims merely
speculating about the risks of execution maladministration do not state
Eighth Amendment violation. Claim 1.2 could not be more speculative
or present a more tenuous case for risk of maladministration. It has no
likelihood of success as a matter of law. Thus, it presents no grounds for
a stay—conditional or otherwise—or fact-finding by a special master.
Hines only guesses that the State might use a physician who might
be unqualified to establish a backup central IV line. He frets that the
physician might not be able to establish a backup central IV line if
needed. And he implausibly suggests that all these stacked, remote
possibilities “present[] a risk that is sure or very likely to cause serious
illness and needless suffering and give rise to sufficiently imminent
dangers.” West, 519 S.W.3d at 563 (cleaned up and emphasis added).
All these allegations that the State’s “execution method may result
in pain, either by accident or as an inescapable consequence of death, do[]
not establish the sort of objectively intolerable risk of harm that qualifies
as cruel and unusual” because “[s]ome risk of pain is inherent in any
method of execution—no matter how humane—if only from the prospect
of error in following the required procedure.” Baze, 553 U.S. at 47, 50
(plurality op.) (cleaned up and emphasis added). “[M]ere possibilities” or
“hypothetical[s]”—like
Hines’
allegations
about
the
“risk
of
maladministration”—“are not sufficient to satisfy [his] burden to
establish a substantial risk of severe pain.” West, 519 S.W.3d at 564-65
25
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APPENDIX C
(quoting Baze, 553 U.S. at 62). Thus, Hines’ maladministration claim is
“all but foreclosed,” Cooey v. Strickland, 589 F.3d 210, 225 (6th Cir. 2009),
as a matter of law because an alleged “potential flaw” in administration
is too speculative “to state an Eighth Amendment claim,” Zink v.
Lombardi, 783 F.3d 1089, 1101 (8th Cir. 2015).
“[E]ven proof[] of medical negligence in the past or in the future are
not sufficient to render a facially constitutionally sound protocol
unconstitutional.” Id. at 556 (cleaned up). Courts have consistently held
that problems arising in prior executions do not prove an imminent
future Eighth Amendment violation. See Jackson v. Danberg, 594 F.3d
210, 227 (3d Cir. 2010) (past failures to follow execution protocol did not
establish a constitutional violation); Barber v. Governor of Alabama, 73
F.4th 1306, 1319 (11th Cir.) (rejecting the premise that “protracted
efforts to obtain IV access (i.e., ‘repeatedly pricking [an inmate] with a
needle’) would give rise to an unconstitutional level of pain”); Workman
v. Bredesen, 486 F.3d 896, 907-08 (6th Cir. 2007) (“The risk of negligence
in implementing a death-penalty procedure . . . does not establish a
cognizable Eighth Amendment claim.”).
The panoply of safeguards in the protocol itself renders the risk of
maladministration to almost nothing. For example, the protocol requires
(1) that the IV team consist of two medical professionals certified,
licensed, and/or qualified to place IV lines, (2) that members of the
Special Operations Team receive annual training in vascular access and
IV therapy from a qualified third party, (3) that the execution team read
26
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APPENDIX C
the protocol upon selection and annually thereafter, (4) that the
execution team attend monthly practice sessions with simulations of all
steps of the execution process, and (5) that the execution team attend
additional practice sessions as least twice weekly starting two weeks
before an execution. Mot. Ex. 5 at 11-12.
The execution team must also secure Hines’ arms on the gurney
and confirm both circulation and Hines’ inability to manipulate the IV
lines. Mot. Ex. 5 at 19. The IV team must insert a backup IV line in case
the primary IV fails. Mot. Ex. 5 at 20. And the protocol requires an
initial flow of sterile saline solution in each IV to keep the lines open.
Mot. Ex. 5 at 20; see Raby v. Livingston, 600 F.3d 552, 558 (5th Cir. 2010)
(finding no risk of pain where protocol required IV to flow properly for
several minutes before lethal drugs are administered).
protocol
provides
abundant
safeguards
against
In sum, the
the
risks
of
maladministration.
The Eighth Amendment’s purpose is to prevent cruel and unusual
punishment, “not to substitute the court’s judgment of best practices for
each detailed step in the procedure for that of corrections officials.”
Cooey, 589 F.3d at 225. To avoid “transform[ing] courts into boards of
inquiry charged with determining ‘best practices’ for executions,” Hines
must do more than “merely . . . show[] a slightly or marginally safer
alternative” such as “additional monitoring by trained personnel.” Baze,
553 U.S. at 51.
27
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APPENDIX C
This Court and others have already found speculations like Hines’
insufficient to show an Eighth Amendment violation.
The protocol
contains extensive, well-established safeguards—including qualified
personnel, contingency plans, and rigorous training/practice—to mitigate
any unconstitutional risk of harm. Hines has no likelihood of success on
Claim 1.2 as a matter of law. There is no basis for a stay to facilitate his
collateral litigation or for rushed fact-finding by a special master.
III. Hines’ Objections to Rule 12 Are Waived.
Hines does not properly preserve his cursory objections to Rule 12
by minimally addressing them in footnotes without any developed
argument just twenty-four days before his scheduled execution.
In a single footnote, Hines says that “the December 2025
Amendment [to Rule 12] was unlawful” for eight enumerated reasons.
Mot. at 28 n.7. In another footnote without citation to any authority,
Hines says “it is inconsistent with due process to treat all requests for
injunctive relief bearing on an execution as requests for a stay as a matter
of law, without any requiring of a factual showing that a delay is actually
likely”; “it [does not] comport with due process to treat every request for
relief as a ‘last-minute request for delay,’ by operation of law, with no
reference to the reality of the underlying situation”; and “it is [not]
consistent with due process to attribute culpability for risk of delay in
such a situation to the movant, regardless of the actions, policies, or
litigation conduct of the respondent.” Mot. at 35 n.8.
28
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APPENDIX C
All these undeveloped arguments, raised in footnotes just three
weeks before Hines’ scheduled execution, are waived. “Arguments raised
only in footnotes are waived.” Charles v. McQueen, 693 S.W.3d 262, 273
(Tenn. 2024). Briefs to this Court “shall contain . . . [a]n argument . . .
setting forth the contentions of the appellant with respect to the issues
presented . . . with citations to the authorities and appropriate references
to the record.” Tenn. R. App. P. 27(a). “It is not the role of the courts,
trial or appellate, to research or construct a litigant’s case or arguments
for him or her, and where a party fails to develop an argument in support
of his or her contention or merely constructs a skeletal argument, the
issue is waived.” Yebuah v. Ctr. for Urological Treatment, PLC, 624
S.W.3d 481, 491 (Tenn. 2021) (quoting Sneed v. Bd. of Pro. Resp., 301
S.W.3d 603, 615 (Tenn. 2010)). Hines’ two footnotes “merely mention[]
potential ‘constitutional problems’ [with Rule 12 and its application]
without properly explaining or giving adequate legal support for such
claims.” Id. These “late-raised, minimally addressed” arguments are
waived. In re M.L.P., 281 S.W.3d 387, 394 (Tenn. 2009) (quoting In re
Adoption of Female Child, 42 S.W.3d 26, 32 (Tenn. 2001)).
But if the Court declines to find these issues waived, the State
welcomes the opportunity to address their lack of merit in supplemental
briefing. See Order, State v. Pike, No. No. M2020-01156-SC-DPE-DD
(Tenn. July 10, 2026).
29
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APPENDIX C
IV.
Hines’ Egregious Delay Is Plenty Cause to Deny His Motion.
Hines’ tactical delay in seeking a stay just twenty-four days before
his execution is an affront to the State, the Court, and Jenkins’ family.
It is well known that “capital petitioners might deliberately engage in
dilatory tactics to prolong their incarceration and avoid execution of a
sentence of death.” Rhines v. Weber, 544 U.S. 269, 277-78 (2005). “[I]t is
the same strategy adopted by many death-row inmates with an
impending execution: bring last-minute claims that will delay the
execution, no matter how groundless.” Price v. Dunn, 587 U.S. 999, 1008
(2019) (Thomas, J., concurring in denial of certiorari).
But given the significant interests at stake, “[l]ast-minute stays
should be the extreme exception, not the norm.” Bucklew, 587 U.S. at
150 (cleaned up). “[A] stay of execution is an equitable remedy. It is not
available as a matter of right, and equity must be sensitive to the State’s
strong interest in enforcing its criminal judgments.” Hill, 547 U.S. at
584. Indeed, the State and victims have a “powerful and legitimate
interest in punishing the guilty.” Calderon v. Thompson, 523 U.S. 538,
556 (1998) (cleaned up). They also “have an important interest in the
timely enforcement of a [death] sentence.” Bucklew, 587 U.S. at 149
(cleaned up). Moreover, Tennessee crime victims have the constitutional
right to “a prompt and final conclusion of the case after the conviction or
sentence.” Tenn. Const. art I, § 35. Once post-conviction proceedings
“have run their course . . . finality acquires an added moral dimension.”
Calderon, 523 U.S. at 556. “Only with an assurance of real finality can
30
A-92
APPENDIX C
the State execute its moral judgment in a case” and “the victims of crime
move forward knowing the moral judgment will be carried out.” Id. “To
unsettle these expectations is to inflict a profound injury.” Id.
To avoid such injury, “the last-minute nature of an application that
could have been brought earlier, or an applicant’s attempt at
manipulation, may be grounds for denial of a stay.” Bucklew, 587 U.S. at
150 (cleaned up).
Indeed, federal courts apply “a strong equitable
presumption against the grant of a stay where a claim could have been
brought at such a time as to allow consideration of the merits without
requiring entry of a stay.” Nelson v. Campbell, 541 U.S. 637, 650 (2004).
Unfortunately, tactical delay is commonplace in Tennessee endstage litigation.
It is unsurprising then that Hines follows this
unacceptable trend. After the State’s latest protocol adoption, Hines sued
two months later. He then inexplicably waited around nine months after
this Court’s execution order and after deposing the challenged physician
to seek relief under Rule 12.
“The proper response to this maneuvering is to deny [Hines’]
meritless request[] expeditiously.” Price, 587 U.S. at 1008. After all,
“[t]he people of [Tennessee], the surviving victims of [Hines’] crimes, and
others like them deserve better.” Bucklew, 587 U.S. at 149. The Court
should reset appropriate norms for timely end-stage litigation by citing
Hines’ gross delay as an additional ground for denying his motion.
*
*
*
31
A-93
APPENDIX C
The basis of Hines’ belated motion—a challenge to a mainstaylethal-injection procedure previously espoused by Hines and uniformly
upheld by this Court, the U.S. Supreme Court, and many others—is the
very kind of “[s]erial relitigation” that “undermines the finality . . .
essential to both the retributive and deterrent functions of criminal law.”
Shinn v. Ramirez, 596 U.S. 366, 391 (2022). In the end, Hines’ motion is
nothing
more
than
grasping
speculation
about
the
“risk
of
maladministration,” West, 519 S.W.3d at 564 (quoting Baze, 553 U.S. at
62). But speculation is not proof that Hines’ collateral litigation is likely
to succeed. After more than four long decades of near-constant litigation
scrutinizing and re-scrutinizing Hines’ death sentence and the State’s
execution methods, the Court should give that sentence true meaning by
enforcing the principle of finality and allowing the State to enforce its
lawful judgment without further interference or delay.
CONCLUSION
Hines’ motion should be denied.
Respectfully submitted,
JONATHAN SKRMETTI
Attorney General and Reporter
MADELINE W. CLARK
Solicitor General
s/ Nicholas W. Spangler
NICHOLAS W. SPANGLER
Special Counsel
32
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APPENDIX C
Office of the Attorney General
P.O. Box 20207
Nashville, Tennessee 37202
(615) 741-3486
Nick.Spangler@ag.tn.gov
B.P.R. No. 27552
CERTIFICATE OF REDACTION COMPLIANCE
In accord with Tenn. R. App. P. 20B, undersigned counsel certifies
that this filing submitted to State v. Hines, No. M2025-00221-SC-DPEDD, complies with the omission and redaction requirements of Rule 20B.
The certification is made per review on July 27, 2026.
s/ Nicholas W. Spangler
Special Counsel
33
A-95
APPENDIX D
DEATH PENALTY CASE
EXECUTION DATE: AUGUST 13, 2026
Case No. M2025-00221-SC-DPE-DD
IN THE TENNESSEE SUPREME COURT
AT NASHVILLE
______________________________________
STATE OF TENNESSEE
v.
ANTHONY DARRELL HINES
______________________________________
REPLY IN SUPPORT OF MOTION TO AMEND ORDER
SETTING EXECUTION DATE, TO APPOINT SPECIAL MASTER,
AND FOR CONDITIONAL STAY OF EXECUTION
FEDERAL PUBLIC DEFENDER
MIDDLE DIST. OF TENNESSEE
CAPITAL HABEAS UNIT
The Berger Building
164 Rosa L. Parks Blvd.
Nashville, TN 37203
Office: (615) 736-5047
Fax: (615) 736-5265
Email: amy_harwell@fd.org
ELIJAH SWINEY
Research & Writing Specialist
DREW BRAZER
KATHERINE DIX
MARSHALL JENSEN
Asst. Federal Public Defenders
KIT THOMAS
Dep. Chief, Capital Habeas Unit
AMY D. HARWELL
First Asst. Fed. Public Defender
A-96
APPENDIX D
Mr. Hines files this Reply to address arguments raised in
Defendants’ July 27, 2026 Response in Opposition to Plaintiffs’ Motion to
Amend Order Setting Execution Date, to Appoint Special Master, and for
Conditional Stay of Execution.
I.
Mr. Hines can establish a likelihood of success with
respect to his Eighth Amendment claim.
To succeed on the merits of an Eighth Amendment claim involving
an anticipated execution, a plaintiff typically must make two showings:
First, he must show that the challenged course of action poses an
“‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.”
Baze v. Rees, 553 U.S. 35, 50 (2008) (quoting Farmer v. Brennan, 511 U.S.
825, 846 (1994)). While Eighth Amendment cases routinely discuss such
harm using the shorthand of “pain,” it is well-established that, consistent
with the Framers’ expectations, the Eighth Amendment encompasses
more than what modern medicine would classify as physical pain.
Rather, the Eighth Amendment considers all forms of sufficiently severe
“needless suffering,” Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at
50), including the “‘superadd[ition]’ of ‘terror, pain, or disgrace,’”
Bucklew, 587 U.S. at 133 (quoting Baze, 553 U.S. at 48).
2
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APPENDIX D
Second, when an individual challenges some specific aspect of his
proposed execution, “the Eighth Amendment requires [him] to plead and
prove a known and viable alternative.” Glossip, 576 U.S. at 880. If there
is no viable alternative method of execution, the reasoning goes, then the
challenge is to the sentence, not the method, and should be treated
accordingly. Id. at 879–80.
A plaintiff can establish that his challenge is to a method or
circumstance, rather than the death penalty itself, by establishing that
there exists at least one alternative course of action that “‘is feasible,
readily implemented, and in fact significantly reduce[s]’ the risk of harm
involved.” Nance v. Ward, 597 U.S. 159, 164 (2022) (quoting Glossip, 576
U.S. at 877); see also Abdur’Rahman v. Parker, 558 S.W.3d 606, 616
(Tenn. 2018). (“[U]nder the federal or state constitution, a deathsentenced inmate must establish . . . that the risk is substantial
compared to the known and available alternatives.”). As long as that
plausible alternative course of action exists, then the plaintiff’s challenge
does not allege, either explicitly or by implication, that “the death penalty
is categorically unconstitutional.” Glossip, 576 U.S. at 880.
3
A-98
APPENDIX D
Baze-Glossip Prong 1: Defendants’ plan to rely on
Physician A for Mr. Hines’ upcoming execution poses
an objectively intolerable risk of causing Mr. Hines to
experience severe, needless suffering.
A.
Defendants have not disputed that they intend to rely on Physician
A for Mr. Hines’ upcoming execution—notwithstanding the fact that
Physician A is obviously unqualified to perform one of the two duties
assigned to him under the Protocol (namely, the placement of a central
IV-line). TDOC’s planned reliance on Physician A poses an objectively
intolerable risk of causing Mr. Hines to experience needless suffering, in
violation of the Eighth Amendment. Moreover, this risk is not merely
speculative; it already occurred in TDOC’s last attempted execution on
May 21, 2026. And TDOC has done nothing to address the defects in their
Protocol that led to that botched execution attempt in the first place—
most saliently, the Protocol’s allowance for the selection of a
demonstrably unqualified physician.
1.
TDOC is likely to rely on Physician A for Mr. Hines’
execution.
Defendants argue that Mr. Hines has not established that TDOC
actually intends to rely on Physician A for his upcoming execution. See
Response at 25 (“Hines only guesses that the State might use a physician
4
A-99
APPENDIX D
who might be unqualified. . . .”). Ignoring the fact that Mr. Hines has been
forced to “guess” about Physician A’s involvement because Defendants
have refused to answer Mr. Hines’ RFA No. 1 on this exact issue, it is
incontrovertible that Mr. Hines has already established a reasonable
likelihood that TDOC intends to rely on Physician A for his upcoming
execution. Indeed, after a July 16, 2026 hearing on Mr. Hines’ Motion to
Compel, the Davidson County Chancery Court found that there was a
reasonable likelihood that TDOC intended to rely on Physician A for Mr.
Hines’ upcoming execution and ordered Defendants to answer Mr. Hines’
RFA No. 1, but stayed service of that answer. See Pl. Mot. Ex. 1 (Order of
July 17, 2026). If Defendants’ object to this factual finding, they should
appeal the trial court’s Order. Having failed to do so, they cannot now
complain that Mr. Hines’ has failed to establish a reasonable likelihood
that TDOC intends to rely on Physician A.
Mr. Hines notes that if TDOC does not intend to rely on Physician
A, Defendants surely would have said so in response to Mr. Hines’
request for admission, rather than waste this Court’s and the chancery
court’s time with needless litigation. In any case, Mr. Hines invites this
Court or a special master to review TDOC’s answer to Mr. Hines RFA
5
A-100
APPENDIX D
No. 1, to determine whether TDOC, in fact, intends to rely on Physician
A.
2.
The IV Team will very likely struggle to establish
peripheral IV access---requiring the assistance of
Physician A and/or the placement of a central line.
Defendants suggest that even if TDOC intends to rely on Physician
A for Mr. Hines’ execution, there is no guarantee that he will be called on
to place a central line or assist with peripheral IV catheterization. See
Resp. at 25. Nevertheless, it is highly likely that TDOC’s IV Team will
struggle to obtain peripheral IV access in Mr. Hines—requiring the
assistance of Physician A and/or the placement of a central line.
Dr. Gail Van Norman is a cardiothoracic anesthesiologist and an
expert in IV catheterization—having placed more than 5,000 central IVlines and thousands of peripheral IV-lines over the course of her career.
As Dr. Van Norman explains in her attached Declaration (Ex. 1), in any
given lethal injection execution, it is significantly likely that the IV team
will struggle to place a peripheral IV line. A study she conducted of 29
autopsies reports from lethal injection executions in the United States
between 2001 and 2025 found that there were difficulties establishing
peripheral IV access in over half of executions (56%) and one-quarter
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required placement of a central IV-line. Id. at 6–7. Thus, the baseline
likelihood that TDOC’s IV Team will struggle to obtain peripheral IV
access in Mr. Hines—without any consideration of situation-specific
circumstances—is very high.
But as Dr. Van Norman points out, Mr. Hines has certain medical
conditions that dramatically increase the likelihood that the IV Team will
struggle to obtain peripheral IV access during his upcoming execution.
Id. at 7–9. First, Mr. Hines is 66 years old. Vascular access is often
complicated in people over the age of 65 due to the physiological effects
of aging—“including loss of vein elasticity, weakened vein walls, and
reduced subcutaneous tissue support, which make veins fragile, prone to
“rolling” (which means they slip away when a needle is pressed against
them), and highly susceptible to collapsing or bruising during IV
catheterization.” Id. at 7. Moreover, the rate of difficulty establishing
peripheral IV access is even higher in elderly patients like Mr. Hines who
have required hospitalization. Dr. Van Norman notes that almost 60% of
such patients are classified as having difficult IV access. Id.
Second, Mr. Hines is very thin and has suffered significant
muscular atrophy in the aftermath of his recent strokes—particularly on
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his left side. Decl. of Aly Finn (Ex. 2) at 1–2. As Dr. Van Norman explains,
“[m]uscular atrophy often complicates vascular access because the
patient’s loss of muscle tissue undermines the subcutaneous support
structure that helps keep veins in place. This means that the patient’s
veins in the affected limb might be prone to rolling.” Ex. 1 at 7.
TDOC’s IV Team already demonstrated that they are incapable of
reliably placing both a primary and secondary peripheral IV line when
the prisoner’s veins are prone to “rolling.” As Mr. Carruthers’ attorneywitness, Maria DeLiberato, explained in her declaration, TDOC’s IV
Team struggled to place a peripheral IV line in Mr. Carruthers for
approximately 45 minutes, and complained that Mr. Carruthers’ veins
were “rolling.” Pl. Mot. Ex. 13 at 2. Several times, the IV Team seem to
have inserted the introducer needle into a vein (indicated by a “flash” of
blood), but failed to properly place the catheter (no “flow”). Id. at 2–3.
According to Dr. Van Norman, “[t]his suggests that they were collapsing
or infiltrating Mr. Carruthers’ veins.” Ex. 1 at 8. Thus, the fact that Mr.
Hines’ veins are prone to “rolling” due to his age and muscular atrophy
will very likely cause the IV Team to struggle to obtain peripheral IV
access.
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Third, Mr. Hines suffers from stroke-induced spasticity in his left
arm—wherein his left arm remains bent at the elbow and his left hand is
involuntarily clenched in a fist. Ex. 2 (Decl. of Aly Finn) at 1. Mr. Hines
is unable to unclench his left hand or extend his left arm by himself, and
it is very painful when others try to do so. Id. According to Dr. Van
Norman, “muscle spasticity often complicates vascular access in a strokeaffected limb because contracted muscles compress blood vessels and
reduce blood flow. Moreover, the rigidity of the affected arm can make it
physically challenging to properly position the stroke-affected arm (e.g.,
to access the antecubital fossa), insert the needle, and/or secure the
cannula.” Ex. 1 at 7–8. Thus, the IV Team will very likely be unable to
access Mr. Hines’ left arm—which dramatically reduces the number of
sites available to them for peripheral IV access. Id.
Dr. Van Norman therefore concludes that, based on Mr. Hines’ age,
muscular atrophy, and left-sided muscle spasticity, as well as the IV
Team’s failure to obtain peripheral IV access in Mr. Carruthers, it is
“very likely” that TDOC’s IV Team will struggle to obtain peripheral IV
access in Mr. Hines. Id. at 8. Physician A will therefore very likely be
called on to assist the IV Team in obtaining peripheral IV access and/or
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to place a central IV-line in Mr. Hines—as he was during Mr. Carruthers’
attempted execution.
3.
Physician A is not qualified to place a central line and
will very likely cause Mr. Hines to experience needless
suffering if he attempts to do so.
In his October 27, 2025 deposition, Physician A admitted that he
has not placed a central line in at least 13 years, has only placed a total
of about a dozen central lines in his entire career, has never used
ultrasound to place a central line, and only uses the subclavian
approach—a method that is associated with significantly higher severe
vascular and thoracic complications. Pl. Mot. Ex. 12 (Redacted
Deposition) at 6; Ex. 1 (Decl. of Dr. Van Norman) at 5. Physician A also
admitted that during one of his previous central line placements, he
placed a guidewire into the carotid “vein” 1 —which, as Dr. Van Norman
explains, “is an injury to a ‘great vessel,’ and is considered a major
vascular complication that by itself can cause stroke and death.” Pl. Mot.
Ex. 12 at 6; Ex. 1 at 5.
1 Dr. Van Norman notes that there is no such thing as a carotid “vein.” Physician A
presumably meant carotid “artery.” Ex. 1 at 5.
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Dr. Van Norman oversaw the granting of privileges at the
University of Washington Medical Center for central IV-line placement
for approximately ten years. She explains that “[d]ue to the special skills
needed for central line placement, healthcare systems (including the
University of Washington Medical Center) now generally require proof
that a practitioner has both appropriate training in central line
placement and also recently demonstrated competency in the procedure.”
Id. at 3–4. “By requiring that providers have recent, demonstrated
competency in central line placement (in addition to appropriate
training), healthcare systems minimize the risk that patients will suffer
complications during central line placement due to the provider’s lack of
continued proficiency.” Id. at 4. Dr. Van Norman notes that, having not
placed a central line in at least thirteen years, “Physician A does not have
the current experience or training that would be required to obtain or
retain privileges to place central lines at many, if not most, major
healthcare institutions today.” Id. at 5.
Dr. Van Norman likewise states that “Physician A’s lack of
sufficient qualifications to perform central line placement are evidenced
by his actions on May 21, 2026, during the attempted execution of Tony
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Carruthers.” Id. She explains that during Physician A’s failed attempts
to establish a central line in Mr. Carruthers’ subclavian vein, Physician
A violated the standard of care by failing to use ultrasound guidance and
by failing to place Mr. Carruthers in Trendelenburg position. Id. at 6. She
also notes that Physician A’s apparent attempt to locate Mr. Carruthers’
internal jugular vein using an infrared vein finder (which cannot be used
for that purpose) evinces his lack of knowledge and experience. Id. Thus,
Dr. Van Norman concludes that “[b]ased on Ms. DeLiberato’s recitation
of Physician A’s actions and his ultimate failure to establish central IV
access, as well as the representations that Physician A made during his
deposition about his lack of recent experience in central line placement,
it is my professional and ethical opinion that Physician A lacks the
competency to place central lines of any kind, and that he should not have
attempted to place a central line in Mr. Carruthers.” Id. at 6.
At no point have Defendants offered any information to establish
that Physician A is, in fact, qualified to establish central IV-lines.
Instead, Defendants seem to take the bold position that it does not matter
whether Physician A is qualified to perform one of the two duties
assigned
to
him
under
the
Protocol,
because,
they
argue,
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maladministration claims are simply not cognizable. See Def. Resp. at 25.
This position is absurd and would lead to the wholesale evisceration of
the Eighth Amendment right against cruel and unusual punishment—
effectively granting the State carte blanche to torture people by hiring
patently unqualified individuals to perform complex, painful medical
procedures as part of the lethal injection process.
4.
Mr. Hines will endure not just future physical injury at
the hands of Physician A, but also present
psychological injury—knowing that he is very likely to
suffer due to TDOC’s reckless reliance on Physician A.
Having already suffered extensively due to TDOC’s reliance on
incompetent medical personnel, Mr. Hines reasonably fears that he will
suffer even greater injury due to TDOC’s reckless reliance on Physician
A for his upcoming execution. As Dr. Siddhartha Nadkarni, a neurologist
who examined Mr. Hines on February 2, 2026, explains in his attached
Declaration (Ex. 3), Mr. Hines’ second stroke in January 2026 was
proximately caused by the recklessness of TDOC’s contracted medical
personnel—who unreasonably countermanded Mr. Hines’ transfer to an
ER after his first stroke in early December 2025, unreasonably failed to
perform diagnostic brain imaging for two weeks, unreasonably failed to
administer Mr. Hines aspirin until January 6, 2026, unreasonably
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countermanded
his
physician’s
prescription
for
anticoagulation
medication, and failed to perform necessary cardiovascular testing to
determine the cause of Mr. Hines’ initial stroke. Ex. 3 at 3–4. Dr.
Nadkarni concludes that “[i]n my professional opinion, TDOC’s
contracted medical personnel acted recklessly with respect to Mr. Hines’
care in the aftermath of his stroke in December 2025 and violated
universally accepted standards for stroke and post-stroke treatment.” Id.
at 4.
TDOC has therefore demonstrated that it is more than willing to
recklessly rely on incompetent or willfully negligent medical personnel
both for prisoner medical care and lethal injection executions. Mr.
Hines—who is now paralyzed on one side, partially blind, and cognitively
impaired as a result of TDOC’s recklessness—should not now be forced
to face an intolerable risk of additional severe suffering due to TDOC’s
continued reliance on a demonstrably unqualified execution p
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