James Edward Barber v. Governor of the State of Alabama

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12242
Non-Argument Calendar
____________________
JAMES EDWARD BARBER,
Plaintiff-Appellant,
versus
GOVERNOR OF THE STATE OF ALABAMA,
COMMISSIONER, ALABAMA DEPARTMENT OF
CORRECTIONS,
WARDEN, HOLMAN CORRECTIONAL FACILITY,
ATTORNEY GENERAL, STATE OF ALABAMA,
JOHN DOE 1,
JOHN DOE 2,
JOHN DOE 3,
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Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:23-cv-00342-ECM
____________________
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.
BRANCH, Circuit Judge:
James Edward Barber is an Alabama death row inmate
scheduled to be executed by lethal injection on July 20, 2023. On
May 25, 2023, Barber filed a 42 U.S.C. § 1983 complaint asserting
that the manner in which Alabama executes its lethal injection
protocol violates the Eighth Amendment’s prohibition against
cruel and unusual punishments. Specifically, he takes issue with
the manner in which the execution team attempted to secure IV
access1 in the inmates during the preceding three executions that
1 It is undisputed that a central component of Alabama’s lethal injection
protocol is establishing IV access to the inmate’s veins so that the necessary
drugs can be administered. See Redacted Execution Procedures (March 2023)
ANNEX C (attached as Exhibit B to complaint). The protocol requires that
“two (2) intravenous infusion devices [be] placed in veins of the condemned
inmate” by the “IV Team.” Id. All members of the IV Team must “be
currently certified or licensed within the United States.” Id. The protocol
further provides that “[t]he standard procedure for inserting IV access will be
used. If the condemned inmate’s veins make obtaining venous access difficult
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occurred in 2022, two of which were canceled due to the execution
team’s inability to secure the necessary IV access after making
numerous attempts over an extended period of time. Despite the
fact that Alabama has since conducted a full review of its execution
procedures, Barber maintains that there is no evidence that the
issues “that derailed the prior executions” have been fixed, and that
he is at substantial risk of serious harm and “torture” because he
“will likely be repeatedly punctured for hours with needles all over
his body” while the execution team attempts to gain IV access.
Relatedly, Barber filed a motion for a preliminary injunction
on the same grounds seeking to enjoin Alabama from executing
him by any method other than nitrogen hypoxia.2 Following
additional briefing and an evidentiary hearing, the district court
denied the motion.
or problematic, qualified medical personnel may perform a central line
procedure to obtain venous access.” Id.2 In 2018, Alabama added nitrogen hypoxia as a statutorily available execution
method. See Ala. Code § 15-18-82.1(a) (2018). Barber acknowledges that
inmates like himself who were sentenced prior to this statutory change were
given a window of time in which to elect nitrogen hypoxia as their method of
execution, and it is undisputed that Barber did not elect this option during the
designated time frame. Alabama law provides that where, as here, an inmate
fails to elect nitrogen hypoxia as their method of execution within the
designated time frame, he waives the election. Id. § 15-18-82.1(b)(2).
Nevertheless, Barber asserts that nitrogen hypoxia is an available alterative for
purposes of his Eighth Amendment claim, and the State does not contest this
assertion on appeal. Accordingly, for purposes of this appeal, we accept that
notwithstanding Barber’s failure to timely elect nitrogen hypoxia as his
method of execution, it is an available alternative in this case.
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Barber appeals the denial of that motion,3 arguing that the
district court abused its discretion in denying his motion because it
clearly erred (1) in finding that he was not likely to succeed on his
claim; (2) in finding that his claim was speculative; (3) in crediting
the last-minute affidavit of Warden Terry Raybon; and (4) in
finding that certain aspects of his claim were time-barred. After
review and with the benefit of oral argument, we affirm.
I. Facts and Procedural History
Barber was convicted of the 2001 murder of Dorothy Epps.
Barber v. Comm’r, Ala. Dep’t of Corr., 861 F. App’x 328, 329–30 (11th
Cir. 2021), cert. denied 142 S. Ct. 1379 (2022). Barber knew his
victim. Id. He had performed repair work on her home and “had
a social relationship” with one of Epps’s daughters. Id. at 330. At
the advanced age of 75, Epps was murdered in her home after
Barber, in an apparent attempt to rob her, 4 “struck [her] in the face
with his fist, and at some point thereafter, obtained a claw hammer
that he used to cause multiple blunt force injuries.” Id. Epps’s
death was not a quick one—the autopsy revealed “bruises, cuts and
fractures, bleeding over the brain, multiple injuries in [her] hand
3Barber has also filed an accompanying motion for stay of execution in this
Court.
4 Barber confessed to police, “admitting that he struck Mrs. Epps with a claw
hammer, grabbed her purse, and ran out of the house.” Barber v. State, 952 So.
2d 393, 402 (Ala. Crim. App. 2005). “There was no evidence of a forced entry
by [Barber] into the Epps home, and it is more likely than not that [he] gained
access to the home easily because of his acquaintance with Mrs. Epps.” Id. at
401.
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and arms, rib fractures and bruising in the front of her body, and
bruising and rib fractures in the back of the body,” as well as
“nineteen different lacerations in the head and seven fractures in
the head or skull, injuries to the neck and mouth and left eye . . .
and her tongue was bruised and injured from a blow or blows to
the head.” Id. Evidence established that the attack “occurred over
several parts of [her] house,” and she had numerous defensive
wounds from where she had tried to protect herself from the blows
Barber inflicted. Id. The medical examiner testified that she would
have been conscious when she received the injuries and defensive
wounds. Id. at 331. The jury recommended 11 to 1 that Barber be
sentenced to death, and the trial court followed that
recommendation.5 Id. at 333.
The Alabama Court of Criminal Appeals affirmed his
conviction and sentence. Barber v. State, 952 So. 2d 393, 464 (Ala.
Crim. App. 2005). The United States Supreme Court denied his
petition for a writ of certiorari. Barber v. Alabama, 549 U.S. 1306(2007). Following his direct appeal, Barber exhausted fully both his
state and federal avenues for habeas relief. See Barber, 861 F. App’x
at 333–37.
In February 2023, the State moved the Alabama Supreme
Court to set an execution date for Barber, which the court granted,
and Alabama Governor Kay Ivey set Barber’s execution date for
5 The trial court found two aggravating circumstances: (1) that the murder was
committed during a robbery and (2) that the murder was especially heinous,
atrocious, or cruel. Barber, 861 F. App’x at 333.
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July 20, 2023, beginning at 12:00 a.m. and expiring at 6:00 a.m. on
July 21, 2023.
On May 25, 2023, Barber filed the underlying § 1983
complaint raising his Eighth Amendment challenge to his
execution by lethal injection. Eleven days later, on June 5, 2023,
Barber filed a motion for a preliminary injunction, seeking to
enjoin his execution by lethal injection. Barber’s motion focused
on the three allegedly “botched” execution proceedings performed
by Alabama in 2022 due to protracted, repeated attempts to obtain
IV access in the condemned inmate. The first of these execution
proceedings was that of Joe Nathan James in July 2022. According
to Barber, the IV Team in James’s case tried to access James’s veins
for more than three hours, puncturing various places on James’s
body. Then, so Barber argues, unable to obtain IV access, the IV
Team sedated James and performed a “cut-down” procedure6 to
try to obtain a vein.7 When the public curtain opened, James
6 Inthe context of another challenge to execution methodology, we explained
that a “cut-down” procedure involves “making a deep incision into the
subject’s skin to find a blood vessel, which is then cut open to allow for the
insertion of a catheter.” Nance v. Comm’r, Ga. Dep’t of Corr., 59 F.4th 1149, 1156
(11th Cir. 2023) (quotations omitted).
7 As noted at Barber’s evidentiary hearing, two different doctors conducted an
autopsy on James and reached different conclusions. One autopsy found only
two confirmed puncture marks, “no signs of torture or other abuse,” no
evidence of sedation, and no evidence of a cut-down procedure. Another
found multiple needle marks on various parts of James’s body, and evidence
of “[l]inear superficial abrasions” on the “left antecubital fossa and proximal
forearm,” measuring only “1 ¾ inches in length and less than 1/16 inch in
depth.” The district court found that based on these reports Barber’s
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appeared already unconscious, and soon after officials pronounced
him dead. The second execution proceeding cited by Barber was
that of Alan Eugene Miller in September 2022. During this
proceeding, the IV Team attempted unsuccessfully for
approximately 90 minutes to obtain IV access, “slapping” and
puncturing both of Miller’s elbows, his right hand and foot, and
right and left arms. [Id.] Barber included an affidavit from Miller
in which Miller asserted that the process caused him extreme
physical and psychological pain and suffering. 8 Ultimately, Miller’s
execution was called off because the team was not able to obtain
IV access within the execution window. 9 Finally, the third
execution proceeding was that of Kenneth Smith in November
2022. According to Barber, the IV Team spent over two hours
“[a]llegations of a cut-down on James” and his allegations of sedation “[were]
not borne out by either autopsy.”
8 Miller maintained that he “could feel the needle being injected into [his] skin,
and then turned in various directions” in the IV Team’s attempts to find a vein.
He stated that he “could feel [his] veins being pushed around inside [his] body
by needles, which caused him great pain and fear.” And when the IV Team
attempted to insert a needle into Miller’s right foot, it “caused sudden and
severe pain” and “felt like [he] ha[d] been electrocuted in [his] foot.”
9 As the district court noted, the Alabama Department of Corrections
(“ADOC”) had a shorter window in which to complete Miller’s execution
because Miller had pending litigation in federal court seeking to enjoin ADOC
from executing him, which was not resolved until around 9:00 p.m. on the
evening of his set execution with the window expiring at midnight.
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attempting to obtain IV access in Smith before calling off the
execution due to the inability to set IV lines. 10
Following the issues in Smith’s attempted execution,
Governor Ivey asked Alabama’s Attorney General Steve Marshall
to withdraw then-pending motions with the Alabama Supreme
Court to set execution dates 11 for other death row inmates, and for
the Alabama Department of Corrections (“ADOC”) to conduct a
full review of the State’s execution process.
Barber acknowledged in his motion for a preliminary
injunction that the ADOC conducted a review of its execution
processes and procedures between November 2022 and late
February 2023, 12 although he took issue with the length of the
10 Barber also submitted an affidavit from Smith, who stated generally that
“ADOC’s unsuccessful attempts to establish [IV] access caused [him] severe
physical pain and emotional trauma as described” in a complaint Smith filed
in pending litigation of his own. Additionally, as in Miller’s case, the ADOC
also had a shorter window in which to complete Smith’s execution because
Smith also had pending litigation in federal court seeking to enjoin his
execution that was not resolved until 10:20 p.m. on the evening of his set
execution.
11At that time, Barber was one of the condemned inmates for which the State
had a pending motion to set an execution date. Following the Governor’s
order, the State withdrew that motion.
12On February 24, 2023, the Commissioner for the ADOC, John Hamm,
notified Governor Ivey that:
[ADOC had] conducted an in-depth review of [the ADOC’s]
execution process that included evaluating: the Department’s
legal strategy in capital litigation matters, training procedures
for Department staff and medical personnel involved in
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executions, increasing the number of personnel utilized by the
Department for executions, assisting medical personnel
participating in the process, and the equipment on-hand to
support the individuals participating in the execution. During
our review, Department personnel communicated with
corrections personnel responsible for conducting executions in
several other states. Our review also included thorough
reviews of execution procedures from multiple states to
ensure that our process aligns with the best practices in other
jurisdictions.
After discussing the matter with my staff, I am confident that
the Department is as prepared as possible to resume carrying
out executions consistent with the mandates of the
Constitution. This is true in spite of the fact that death row
inmates will continue seeking to evade their lawfully imposed
death sentences.
...
The Department has also decided to add to its pool of available
medical personnel for executions. The vetting process for
these new outside medical professionals will begin
immediately.
...
Finally, Department personnel have conducted multiple
rehearsals of our execution process in recent months to ensure
that our staff members are well-trained and prepared to
perform their duties during the executions process.
Following receipt of this letter, Governor Ivey cleared Commissioner Hamm
to move forward with scheduling executions for eligible death row inmates.
The State then filed a motion with the Alabama Supreme Court to set an
execution date for Barber.
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investigation and the manner in which it was conducted. Barber
asserted that the investigation did not resolve the issues plaguing
Alabama’s lethal injection protocol and the manner in which
Alabama carries out the protocol. He maintained that “he [would]
likely be subject to the same grisly fate” as James, Miller, and Smith
“because [ADOC] ha[d] not made any meaningful changes to their
defective [lethal injection] [p]rotocol” and “[t]he IV Team is still
insufficiently credentialed.” He asserted that a viable, less painful
alternative method of execution was available—namely, nitrogen
hypoxia. Accordingly, he requested that the district court enjoin
Alabama from executing him by lethal injection.
Following the State’s motion in opposition to the
preliminary injunction and Barber’s reply, the district court
conducted an evidentiary hearing on the motion. Thereafter, the
district court denied Barber’s motion. First, the district court
addressed the State’s assertion that Barber’s claims were time-
barred and concluded that “to the extent Barber claim[ed] that
specific provisions of the [lethal injection] protocol violate[d] the
Eighth Amendment,” his claims were barred by the two-year
statute of limitations because “[t]he alleged deficiencies in the
[lethal injection] [p]rotocol about which Barber complain[ed] ha[d]
been present since the last significant change” to the protocol,
which was over two years ago.13 However, the court concluded
13We agree with the district court that Barber’s challenges to specific aspects
of Alabama’s lethal injection protocol are time-barred because they accrued
over two years ago. Specifically, no one disputes that there has been no
substantial change to the medical process outlined in the execution protocol
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that Barber’s as-applied Eighth Amendment challenge to the
manner in which Alabama carries out the protocol—“through an
emerging pattern of prolonged attempts to establish IV access”—
was timely.
The district court then explained that to obtain a preliminary
injunction, Barber bore the burden to demonstrate that he has a
substantial likelihood of success on the merits of his claim. To
succeed on the merits, Barber had to (1) establish that he faced a
substantial risk of serious harm from the challenged method of
execution, and (2) identify an alternative feasible method of
execution that would significantly reduce the substantial risk of
severe pain. The district court found that he had satisfied the
second element by “successfully identify[ing] nitrogen hypoxia as a
feasible, readily implemented alternative method of execution.”
Accordingly, the district court focused its analysis on whether
Barber met his burden to show that he faces a substantial risk of
serious of harm if executed by lethal injection.
The district court noted that in Smith v. Commissioner,
Alabama Department of Corrections, No. 22-13781, 2022 WL 17069492(11th Cir. Nov. 17, 2022), cert. denied sub. nom. Hamm v. Smith, 143
S. Ct. 1188 (2023), we concluded in an unpublished opinion that,
in the last two years, and that the applicable statute of limitations is two years.
Brooks v. Warden, 810 F.3d 812, 823 (11th Cir. 2016). Thus, to the extent that
Barber takes issue with the protocol itself or the alleged lack of clarity or
definitions in the protocol, those deficiencies have been present in the protocol
since the last substantial change more than two years ago, and his claims are
time-barred.
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based on the ADOC’s pattern of difficulty in obtaining IV access,
and the condemned inmate’s specific risk factors related to certain
medical conditions, the condemned inmate had plausibly pleaded
an Eighth Amendment claim for purposes of surviving a motion to
dismiss and the district court should have granted him leave to
amend his complaint. However, the district court also noted that
in Nance v. Commissioner, Georgia Department of Corrections, 59 F.4th
1149, 1157 (11th Cir. 2023), we rejected a condemned inmate’s
Eighth Amendment claim based on allegations that futile attempts
to locate a condemned inmate’s veins would give rise to an
unconstitutional level of pain. The district court then concluded
that Barber’s case was distinguishable from Smith and more like
Nance. Specifically, the district court concluded that “intervening
actions have disrupted the pattern discussed in Smith,” noting that
the ADOC had conducted an investigation, determined that there
were no deficiencies in the protocol itself, and implemented IV
Team “personnel changes.” Indeed, evidence presented during the
evidentiary hearing established that “[n]one of the members of the
current IV [T]eam were involved in the previous three execution
attempts.” Furthermore, the State had since amended its
procedural rules to provide for a longer time frame for executions
than it had before.14 Thus, Barber could not “show that the
14 While the ADOC’s investigation was pending, Governor Ivey requested that
the Alabama Supreme Court amend Alabama Rule of Appellate Procedure
8(d)(1), which at that time provided that “[t]he supreme court shall at the
appropriate time enter an order fixing a date of execution.” See Ala. R. App.
P. 8(d)(1) (1997). Governor Ivey explained that the “execution date” in the
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investigation and corresponding changes [would] not address the
pattern of prolonged efforts to obtain IV access” identified in Smith.
Accordingly, “[i]n light of the investigation conducted by the
ADOC, and [the] actions taken as a result thereof,” the district
court found that “Barber’s allegations [were] too speculative to
give rise to an Eighth Amendment claim upon which he [would be]
substantially likely to prevail.”
Additionally, the district court found that, unlike the
condemned inmate in Smith, Barber made “no allegation in his
complaint that he has a specific, physical condition or infirmity that
makes it more difficult to access his veins.” And although Barber
testified at the hearing that the ADOC had difficulty on occasion
rule encompassed “a single-24 hour period,” meaning that ADOC had to call
off execution attempts at midnight on the set day. This requirement, coupled
with ADOC’s execution protocol that required that executions not start until
6:00 p.m. and last-minute appeals by the condemned inmate which often
pushed the start time even later, created a “time crunch” for the completion
of all of the necessary execution processes and procedures. Accordingly,
Governor Ivey requested that Rule 8 be amended to allow for a longer time
period of time, consistent with longer time periods provided for in some other
states. Upon consideration, the Alabama Supreme Court amended Rule 8 so
that it now provides that “[t]he supreme court shall at the appropriate time
enter an order authorizing the Commissioner of the Department of
Corrections to carry out the inmate’s sentence of death within a time frame
set by the governor.” Ala. R. App. P. 8(d)(1) (2023). Consistent with the new
rule, Governor Ivey set Barber’s execution time frame “to occur beginning at
12:00 a.m. on Thursday, July 20, 2023, and expiring at 6:00 a.m. on Friday, July
21, 2023.”
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accessing his veins,15 he also testified that the ADOC had been able
to access his veins without issue in other instances. Thus, Barber
failed to establish that he presented individualized risks that would
complicate IV access. The district court also concluded that
Barber’s expert medical evidence did not establish that repeated IV
attempts would cause unconstitutional levels of pain. Accordingly,
the district court concluded that Barber’s claim was more similar
to the generic futile-attempts-to-access-veins claim rejected in
Nance. Consequently, the district court concluded that Barber had
not shown a substantial likelihood of success on the merits of his
claim and denied the request for a preliminary injunction.
Two days later, Barber filed an amended complaint in the
district court, incorporating evidence presented at the evidentiary
hearing, and for the first time specifically alleging that he had
individualized risk factors that could complicate vein access,
including a high body mass index (“BMI”) similar to that of inmates
James and Smith, and citing the ADOC’s past difficulties accessing
Barber’s veins on multiple occasions.16
15Specifically, Barber testified to one instance in 2004 when he first entered
prison in which the ADOC had trouble accessing his veins. ADOC personnel
in the infirmary attempted to draw blood and pricked Barber with a needle
eight times but were unsuccessful. Barber said the experience was “pretty
painful.” Barber then stated on cross-examination that, since 2004, he had
trouble giving blood “[a] few times,” but he did not provide any details about
those other instances.
16Because the initial complaint was the complaint before the district court
when it determined whether Barber’s claim had a substantial likelihood of
success on the merits for purposes of a preliminary injunction, like the district
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Two days after filing the amended complaint and four days
after the district court denied the preliminary injunction, Barber
filed a notice of appeal and a motion for stay of execution with this
Court. We ordered expedited briefing and held oral argument.
With this procedural history in mind, we turn to the merits
of Barber’s appeal and his request for a stay of execution.
II. Standard of Review
We review a district court’s decision to deny a preliminary
injunction for abuse of discretion. Scott v. Roberts, 612 F.3d 1279,
1289 (11th Cir. 2010). “In so doing, we review the findings of fact
of the district court for clear error and legal conclusions de novo.”
Id. “This scope of review will lead to reversal only if the district
court applies an incorrect legal standard, or applies improper
procedures, or relies on clearly erroneous factfinding, or if it
reaches a conclusion that is clearly unreasonable or incorrect.”
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir.
2005); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 931–32 (1975)
(“[W]hile the standard to be applied by the district court in deciding
whether a plaintiff is entitled to a preliminary injunction is
court, we focus on the allegations in the initial complaint, rather than the
allegations in the amended complaint that he filed following the evidentiary
hearing. Rosen v. Cascade Int’l, Inc., 21 F.3d 1520, 1524 n.5 (11th Cir. 1994)
(“Because the consolidated amended complaint was not submitted until after
the district court had issued the preliminary injunction at issue in this appeal,
however, our inquiry focuses on whether the district court had the authority
to issue the preliminary injunction predicated upon the claims raised in the six
original complaints . . . .”).
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stringent, the standard of appellate review simply is whether [the
denial of] the injunction in light of the applicable factors
constituted an abuse of discretion.”); Siegel v. LePore, 234 F.3d 1163,
1175 (11th Cir. 2000) (en banc) (explaining that the district court’s
order denying injunctive relief could be reversed on appeal only “if
there was a clear abuse of discretion”).
Importantly, the abuse of discretion standard “recognizes
the range of possible conclusions the [district court] may reach.”
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en
banc). It “allows a range of choice for the district court, so long as
that choice does not constitute a clear error of judgment.” Id.(quotations omitted).
Likewise, when it comes to factual findings, under the
clearly erroneous standard, “[i]f the district court’s view of the
evidence is plausible in light of the entire record, an appellate court
may not reverse even if it is convinced that it would have weighed
the evidence differently in the first instance.” Brnovich v. Democratic
Nat’l Comm., 141 S. Ct. 2321, 2349 (2021). “Where there are two
permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” Id. (quotations omitted). In
other words, under this standard, we may not reverse “simply
because we are convinced that we would have decided the case
differently.” Price v. Comm’r, Dep’t of Corr., 920 F.3d 1317, 1323 (11th
Cir. 2019); see also Cooper v. Harris, 581 U.S. 285, 293 (2017) (“A
finding that is ‘plausible’ in light of the full record—even if another
is equally or more so—must govern.”).
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III. Discussion
Even when life or death interests are at stake, a preliminary
injunction or a stay of execution is an extraordinary remedy “not
available as a matter of right.” Hill v. McDonough, 547 U.S. 573, 584
(2006). Indeed, the issuance of a preliminary injunction is “the
exception rather than the rule.” United States v. Lambert, 695 F.2d
536, 539 (11th Cir. 1983). And “[l]ast-minute stays should be the
extreme exception.” Bucklew v. Precythe, 139 S. Ct. 1112, 1134
(2019). A movant is eligible for a preliminary injunction or a stay
of execution only if he establishes that (1) he has a substantial
likelihood of success on the merits, (2) he will suffer irreparable
injury unless the injunction or stay issues, (3) the injunction or stay
would not substantially harm the other litigant, and (4) if issued,
the injunction or stay would not be adverse to the public interest.
Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271, 1273 (11th Cir. 2014).
The first factor is considered one of “the most critical.” See Nken v.
Holder, 556 U.S. 418, 434 (2009). Where a court concludes that the
movant fails to establish a substantial likelihood of success on the
merits, “it is unnecessary” for the court to determine whether the
movant “satisfied the second, third, or fourth factors.” Grayson v.
Warden, Comm’r, Ala., 869 F.3d 1204, 1238 n.89 (11th Cir. 2017).
Additionally, “a court considering a stay must also 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.” Hill, 547 U.S. at
584 (quotations omitted); see also Bucklew, 139 S. Ct. at 1134(explaining that dilatory tactics and claims that “could have been
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brought earlier . . . may be grounds for denial of a stay” (quotations
omitted)). Like the district court, we agree that this case rises and
falls on the first factor—whether Barber can show a substantial
likelihood of success on the merits of his Eighth Amendment claim.
“The Eighth Amendment, made applicable to the States
through the Fourteenth Amendment, prohibits the infliction of
‘cruel and unusual punishments.’” Glossip v. Gross, 576 U.S. 863,
876 (2015). Capital punishment, however, including capital
punishment by lethal injection, is constitutional. See Baze v. Rees,
553 U.S. 35, 47, 62 (2008) (plurality opinion). 17 As the Supreme
Court has explained “[s]ome risk of pain is inherent in any method
of execution,” and the Eighth Amendment “does not demand the
avoidance of all risk of pain in carrying out executions,” particularly
where the pain results “by accident or as an inescapable
consequence of death.” Id. at 47, 50. Likewise, the Eighth
Amendment does not prohibit procedures that create an
“unnecessary risk” of pain without more. Id. at 51. In other words,
as the Supreme Court has emphasized, “the Eighth Amendment
does not guarantee a prisoner a painless death—something that, of
course, [is not] guaranteed to many people, including most victims
of capital crimes.” Bucklew, 139 S. Ct. at 1124. Instead, what the
Eighth Amendment forbids are those “forms of punishment that
intensif[y] the sentence of death with a (cruel) superaddition of
terror, pain, or disgrace.” Id. (alteration adopted) (quotations
17We have recognized that Chief Justice Roberts’s plurality opinion “contains
the holdings of the Court in [Baze].” Chavez, 742 F.3d at 1271 n.4.
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omitted). Consequently, “[p]risoners cannot succeed on a method-
of-execution claim unless they can establish that the challenged
method presents a risk that is ‘sure or very likely to cause serious
illness and needless suffering, and gives rise to sufficiently imminent
dangers.’” Price, 920 F.3d at 1325 (emphasis in original) (quoting
Glossip, 576 U.S. at 877).
Thus, to prevail on his Eighth Amendment challenge,
Barber has to establish two things: (1) that the method of execution
in question creates “a substantial risk of serious harm, an
objectively intolerable risk of harm that prevents prison officials
from pleading that they were subjectively blameless for purposes
of the Eighth Amendment,” and (2) that there is “an alternative that
is feasible, readily implemented, and in fact significantly reduce[s]
a substantial risk of severe pain.” Id. at 1326 (quotations omitted).
To be clear, Barber’s claim “faces an exceedingly high bar” because
the Supreme Court “‘has yet to hold that a State’s method of
execution qualifies as cruel and unusual.’” Barr v. Lee, 140 S. Ct.
2590, 2591 (2020) (quoting Bucklew, 139 S. Ct. at 1124).
Here, the State does not contest that Barber identified a
feasible alternative method of execution—nitrogen hypoxia.18
18 Given that the State does not contest the district court’s conclusion that
Barber “successfully identified” nitrogen hypoxia as a feasible alternative
method of execution, it is unnecessary for us to address Barber’s points on
appeal that quarrel with the district court’s earlier characterization of his
request for this alternative method as “problematic” because Alabama has not
finalized a nitrogen hypoxia protocol and is not yet ready to proceed with
executions by this method. However, Alabama’s lack of a nitrogen hypoxia
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Accordingly, we focus our analysis on whether the district court
clearly erred in determining that Barber did not show that he faces
a “substantial risk of serious harm” if executed by lethal injection.
Barber argues that the district court erred in finding that he
did not show a “substantial risk of serious harm” in light of his
evidence that Alabama “failed to carry out a lethal injection in a
constitutional manner not once, not twice, but three times in a
row” due to “protracted efforts to establish IV access.” He
maintains that Alabama’s “repeated failures demonstrate a pattern
of superadding pain to the execution.” Further, he alleges that it is
highly likely that he will experience the same “needless suffering”
because under Alabama’s newly amended rules, the State has a
longer execution window—giving them more time to attempt IV
access—and he presented evidence that he suffers from individual
risk factors—namely, that he has a high BMI and that on prior
occasions ADOC has had trouble accessing his veins for
protocol notwithstanding, Barber arguably faces another problem with his
request for nitrogen hypoxia as an alternative method of execution. Barber
failed to show a substantial likelihood that execution by nitrogen hypoxia
would significantly reduce a substantial risk of pain when compared to
execution by lethal injection. And establishing that the alternative method
will “significantly reduce a substantial risk of severe pain” is a key element to
a method-of-execution challenge. See Bucklew, 139 S. Ct. at 1130. “[A] minor
reduction in risk is not enough; the difference must be clear and considerable.”
Price, 920 F.3d at 1329 (quotations omitted). But Barber presented no
information related to execution by nitrogen hypoxia or pain risks associated
with that method. Nevertheless, because the district court did not address this
issue, we do not reach it.
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procedures. But Barber’s arguments suffer from a fatal flaw—they
are premised on the assumption that protracted efforts to obtain IV
access (i.e., “repeatedly pricking him with a needle”) would give
rise to an unconstitutional level of pain. And we expressly
concluded that such efforts would not rise to that level in Nance.
Specifically, the condemned Georgia inmate in Nance argued that,
due to a medical condition, he had “weak veins” that the execution
team would likely have trouble accessing, and that “the state
technicians would subject him to an unconstitutional level of pain
by repeatedly pricking him with a needle.” 59 F.4th at 1157. We
explained that the district court correctly rejected the argument
that “a futile attempt to locate a vein would give rise to a
constitutionally intolerable level of pain,” noting that “‘the Eighth
Amendment does not guarantee a prisoner a painless death.’” Id.
(quoting Bucklew, 139 S. Ct. at 1124).
Barber argues that Nance does not control and that we
should instead follow our unpublished decision in Smith, which
also involved a § 1983 Eighth Amendment challenge to Alabama’s
lethal injection protocol based on protracted IV access issues. Like
Barber, Smith filed a § 1983 action, alleging in relevant part that
ADOC had “substantially deviated from its Execution Protocol to
the point that it would subject Smith to intolerable pain and torture
in violation of the Eighth Amendment.” 2022 WL 17069492, at *1.
The district court concluded that the claim was time-barred and
granted the State’s motion to dismiss. Id. Smith sought to amend
his complaint to focus his Eighth Amendment claim on the
repeated, protracted efforts to obtain IV access in the James and
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Miller execution proceedings, which the district court denied,
finding that amendment would be futile. Id. at *2. Exercising de
novo review on appeal, we concluded that “[b]ecause of the
difficulty in accessing Smith’s veins, Smith plausibly pleaded that,
considering ADOC’s inability to establish difficult IVs swiftly and
successfully in the past, [Smith would] face superadded pain as the
execution team attempts to gain IV access,” and remanded the case
for further proceedings. 19 Id. at *5–6.
Thus, Barber argues that Smith conclusively establishes that
he faces a “substantial risk of serious harm” and superadded pain
due to repeated IV access attempts, particularly in light of
Alabama’s recent track record in execution proceedings. Barber’s
argument is unavailing. Smith is an unpublished case and “[o]ur
19 We also note that, following our decision in Smith, we granted Smith a stay
of execution so that he could further pursue his Eighth Amendment claim in
the district court. Smith v. Comm’r, Ala. Dep’t of Corr., No. 22-13846, 2022 WL
19831029 (11th Cir. Nov. 17, 2022). The State appealed, and the Supreme
Court vacated the stay. Hamm v. Smith, 143 S. Ct. 440 (11th Cir. 2022).
Although we do not know why the stay in Smith was vacated, we do know
that a motion for a stay of execution involves a balancing of equities. See
Brooks, 810 F.3d at 816, 824. By vacating the stay, the Supreme Court implicitly
told us that the balance of equities in Smith weighed in favor of the State’s and
the victim’s “strong interest in enforcing the criminal judgment without
undue interference from the federal courts.” Brooks, 810 F.3d at 824; see also
Hill, 547 U.S. at 584 (“Both the State and the victims of crime have an
important interest in the timely enforcement of a sentence.”). And Smith’s
case was stronger than Barber’s because Smith—unlike Barber—alleged that
it would be difficult to access his veins due to “both general and specific risks.”
Smith, No. 22-13781, 2022 WL 17069492, at *4.
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unpublished opinions are not precedential”; “they do not bind us
or district courts to any degree.” Patterson v. Ga. Pacific, LLC, 38
F.4th 1336, 1346 (11th Cir. 2022). To the extent that Smith may
have constituted persuasive authority on the issue of whether
repeated IV access attempts can constitute superadded pain and
presents a “substantial risk of harm” for purposes of an Eighth
Amendment claim, we squarely rejected that argument in Nance—
a published case which binds us here. United States v. Steele, 147
F.3d 1316, 1317–18 (11th Cir. 1998) (“Under our prior precedent
rule, a panel cannot overrule a prior one’s holding even [if]
convinced it is wrong.”). Under Nance, Barber cannot show that
his method of execution creates a “substantial risk of serious harm”
and without that, he does not have a substantial likelihood of
success on the merits of his Eighth Amendment challenge.20
20 Barber takes issue with the fact that Nance involved a Georgia inmate and
the Georgia Department of Corrections did not have a history of difficulties
with IV access, unlike the ADOC. Thus, he argues that his case is different
from Nance. Likewise, the dissent accuses us of misreading Nance because
“there was no allegation in Nance that Georgia had a track record of past
executions in which it subjected death-row prisoners to lengthy periods of
multiple painful attempts to establish IV lines in the execution chamber”—
and, according to the dissent, that distinction is key and makes Barber’s case
distinguishable. Our conclusion in Nance, however, was based on whether
futile attempts to obtain IV access would cause an unconstitutional level of
pain, and we concluded such attempts would not give rise to an Eighth
Amendment claim, noting that “‘the Eighth Amendment does not guarantee
a prisoner a painless death.’” 59 F.4th at 1157 (quoting Bucklew, 139 S. Ct. at
1124). The cause of the futility—whether it be a medical condition or a
pattern of difficulty by the IV Team in securing vein access—does not matter.
What matters is that Nance held that repeatedly and futilely pricking an inmate
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Accordingly, contrary to Barber’s argument, the district court did
not err in relying on Nance. Nor did it misapply Nance.
Nance notwithstanding, even if repeated, protracted
attempts at IV access on a condemned inmate could create a
substantial risk of serious harm, Smith does not establish that the
district court abused its discretion in denying Barber’s request for a
preliminary injunction. 21 As the district court explained, Smith
identified specific medical conditions and risk factors unique to him
that made IV access difficult. Barber, on the other hand, did not.
Nowhere in his initial complaint did Barber include allegations
with a needle does not rise to an unconstitutional level of pain—i.e., it is not
an Eighth Amendment violation. Id.Additionally, Barber notes that Nance “was decided just months after
Smith and did not purport to overrule Smith or call its holding into question.
In fact, Nance did not even mention Smith.” Barber is correct. Nance did not
address Smith, but it did not have to do so. As noted previously, Smith is an
unpublished case with no precedential value that is not binding on subsequent
panels. Rather, an unpublished opinion is relevant only to the extent of its
persuasive value, and the Nance court did not find Smith persuasive. Thus, the
fact that Nance did not tackle any tension with Smith is inconsequential.
21 We also note that Smith’s claims came to us in a different procedural posture
and were subject to the lesser de novo review standard. In contrast, Barber’s
claims, are subject to the very deferential abuse of discretion standard. “Our
review under this standard is very narrow and deferential.” Gonzalez v. Gov. of
Ga., 978 F.3d 1266, 1270 (11th Cir. 2020) (quotations omitted). And “[w]e may
reverse the district court’s order only if there was a clear abuse of discretion.”
Siegel, 234 F.3d at 1175 (en banc).
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about his BMI causing issues with vein access 22 or that the ADOC
had past difficulties accessing his veins. Although at the evidentiary
hearing, Barber’s counsel asserted that Barber had a BMI
“identical” to Smith and higher than James, Barber provided no
details during his testimony concerning his BMI, and he presented
no other evidence to establish that a particular BMI presents an
elevated risk of complications with IV access to veins or that
James’s and Smith’s BMIs gave rise to the difficulties in accessing
their veins. Barber also testified at the evidentiary hearing that, on
“a few” occasions23 in the last two decades, the ADOC had issues
accessing his veins and had to prick him multiple times. However,
he also testified that on other occasions the ADOC had no issues
22Barber acknowledged during the evidentiary hearing that the issue of BMI
was “not in the complaint itself,” and that he had raised the issue for the first
time in his reply brief in support of the motion for preliminary injunction.
23 We note that Barber testified that the ADOC first had trouble accessing his
veins in 2004. Therefore, Barber arguably knew about his specific vein access
issue 19 years ago, which would present a time-bar issue because he arguably
could have brought his method-of-execution challenge before now.
Furthermore, Barber acknowledged in his complaint that ADOC attempted
and failed to execute another inmate, Doyle Lee Hamm, in 2018 due to the
same IV access issues of which Barber complains. Thus, Barber’s Eighth
Amendment claim related to ADOC’s potentially protracted efforts to
establish IV access in condemned inmates accrued back in 2018 and is arguably
barred by the two-year statute of limitations. See McNair v. Allen, 515 F.3d
1168, 1174 (11th Cir. 2008) (explaining that “a federal claim accrues when the
prospective plaintiff knows or has reason to know of the injury which is the
basis of the action” (quotations omitted)). Nevertheless, for purposes of this
appeal, we accept the district court’s determination that Barber’s challenge to
the manner in which ADOC carries out its lethal injection protocol is timely.
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23-12242 Opinion of the Court 26
accessing his veins. Based on the testimony and evidence
presented, the district court determined that the evidence was
insufficient to establish that Barber faced individualized risks that
would complicate IV access to his veins, and that Barber’s situation
is therefore distinguishable from that in Smith.
Additionally, the evidence below established that since the
allegedly “botched” executions, ADOC conducted a full review of
its execution processes and procedures, determined that no
deficiencies existed with the protocol itself, 24 and instituted certain
24 Although Barber and the dissent take issue with the ADOC’s determination
that there were no deficiencies with Alabama’s protocol and procedures and
argue that the finding is not reasonable in light of the previous botched
executions, nothing in the record supports the conclusion that the ADOC’s
finding was unreasonable. Rather, Barber and the dissent point to the fact that
the ADOC has not disclosed any information about the investigation and the
related findings; therefore, they argue, it follows that ADOC’s “no
deficiencies” finding is unreasonable. The logic underlying this premise is
flawed. Neither Barber nor the dissent cite to any authority for the proposition
that Barber is entitled to any information concerning the ADOC’s internal
investigation, much less that such a disclosure is constitutionally compelled.
Cf. Bucklew, 139 S. Ct. at 1125 (noting that “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” (quotations omitted)). Indeed, Barber’s counsel conceded at
oral argument that she was unaware of any such authority. Regardless, the
dissent maintains that “[i]t is difficult to see how personnel changes would cut
off the pattern [of difficulty obtaining IV access] given the defendants’
insistence that their review found “[n]o deficiencies,” in personnel or
otherwise.” Thus, the dissent concludes that “[i]n the absence of any evidence
about what caused the [prior] failures, there is simply no basis for concluding
that any given changes will alleviate the failures.” We disagree. Despite
ADOC’s “no deficiencies” finding, ADOC made changes to ensure that it
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changes to help ensure successful constitutional executions. These
changes included amending Alabama’s procedural rules to allow
for an extended time frame for the execution to help avoid time
pressure issues, 25 expanding the pool of medical personnel eligible
could carry out successful executions, including implementing new
certification requirements, expanding the pool of eligible medical personnel,
and hiring a new IV Team. Thus, the no deficiencies finding is of no
consequence. And, even without knowing the cause of the previous IV access
failures, it was entirely reasonable for the district court to infer that these
changes will have an effect and alleviate the IV access related issues—after all
the changes were focused on the IV Team, and the IV Team is the one
responsible for setting the IV lines in the inmate.
Additionally, Barber notes that “failed protocol and practices that the
IV Team will presumably follow during the execution do not include the
‘important safeguards’ that the Supreme Court identified in Baze,” which
included, among other things, a requirement that members of the IV Team
have a certain number of years of experience and practice sessions and a time
limit on how long the team can take to attempt to establish an IV line. But
the Supreme Court did not hold in Baze—nor in any case that followed—that
such safeguards are constitutionally required.
25Barber and the dissent allege that this expanded time frame simply “affords
the IV team six additional hours to attempt to establish an IV line, making it
more, not less, likely that [he] would suffer additional pain. . . .” But there is
much more to the required execution protocol than just setting an IV line. For
instance, the equipment and supplies to be used in the lethal injection
procedure must be inspected and the lethal injection solution must be
prepared; an inventory of the condemned inmate’s property must be
conducted; the condemned inmate is permitted to make a will and have
visitors; “the Warden and/or Commissioner will meet with the victims of the
condemned inmate’s crime”; a physical examination of the condemned
inmate must occur prior to the execution; and the inmate must be escorted to
the execution location, secured to the gurney, and a heart monitor applied.
See Redacted Execution Procedures (March 2023) at 6, 9–10 (attached as
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to serve on the IV Team, requiring that all members of the IV
Team be currently certified or licensed in the United States, and
hiring a new IV Team that was not involved with any of the three
preceding executions to conduct Barber’s execution.26
Exhibit B to complaint). All of that takes time and must happen even before
the IV Team attempts to secure vein access. Id. at 10. And those events must
necessarily be performed in conjunction with any time delays that occur as a
result of pending litigation by the condemned inmate (which we know more
often than not is a factor at play). Thus, contrary to Barber’s and the dissent’s
assertion, the expanded time frame for the execution merely means that
ADOC has more time to complete all of the steps and acts in the protocol
which are necessary to carrying out a successful constitutional execution.
26 During the evidentiary hearing, Barber’s expert nurse reviewed redacted
certifications and licensures for the new IV Team and testified that just
because a person is certified or licensed as a paramedic, EMT personnel, or a
nurse, does not mean that they know how to start IV lines properly, and that
licensure or certification “does not equal competency.” In response, the State,
for the first time, proffered a sworn affidavit from Warden Terry Raybon.
Warden Raybon averred in the affidavit that (1) he “participated in the
interviews with candidates for the expanded pool of medical personnel”;
(2) the “candidates were asked about their relevant experience, licenses, and
certifications”; and (3) “[t]he candidates selected all had extensive and current
experience setting IV lines.” Barber objected to the admission of this affidavit,
arguing that he had requested similar information in his discovery requests
and the State had objected on privilege grounds. The State explained that it
did not produce the information or the affidavit because at the time it provided
its responses, it did not have the affidavit. Further, it only became necessary
for the State to introduce the affidavit belatedly at the evidentiary hearing to
counter Barber’s witness’s speculative testimony that the members of the IV
Team may have no training or experience setting IV lines. The district court
admitted the affidavit, finding that any prejudice Barber would suffer from
receiving the affidavit a few days after the State’s responses to Barber’s
discovery requests did not “counsel against admission of the information that’s
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23-12242 Opinion of the Court 29
Accordingly, based on the evidence presented, the district court did
not clearly err in finding that the intervening changes made by the
ADOC “have disrupted the pattern discussed in Smith,” rendering
Barber’s claim that the same pattern would continue to occur
purely speculative. 27
Accordingly, based on the evidence presented, the district
court did not abuse its discretion in determining that Barber did not
have a substantial likelihood of success on the merits of his Eighth
probative in this case.” Barber challenges on appeal the district court’s
decision to credit Warden Raybon’s belated self-serving affidavit, but we need
not concern ourselves with the district court’s admission of the affidavit. As
detailed in this opinion, even without the affidavit, the district court did not
abuse its discretion in denying the motion for a preliminary injunction.
27 The dissent takes issue with this conclusion but fails to explain how the
district court’s findings were clearly erroneous based on the record before it
or how the district court’s decision constitutes a clear abuse of discretion.
Brnovich, 141 S. Ct. at 2349 (“If the district court’s view of the evidence is
plausible in light of the entire record, an appellate court may not reverse even
if it is convinced that it would have weighed the evidence differently in the
first instance.”); Price, 920 F.3d at 1323 (explaining that we may not reverse
“simply because we are convinced that we would have decided the case
differently”). And those are the standards we are judicially tasked with
applying in this case.
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Amendment claim and in denying the motion for a preliminary
injunction. 28 Consequently, we affirm the district court.29
28 We also note that Barber waited until May 25, 2023, to file the underlying
complaint, even though nothing prevented him from doing so prior to that
date. Barber was aware that the State was prepared to execute him because
the State had a pending motion in November 2022 to set his execution date at
the time Governor Ivey requested ADOC review its execution process. Barber
could have brought his challenge then, but he did not. The State then filed a
renewed motion to set his execution date on February 24, 2023. Barber could
have brought his challenge then, but he did not. Although the district court
did not reach the issue of whether Barber’s delay in bringing his challenge was
the type of last-minute application that the Supreme Court strongly disfavors,
we note that this delay also weighs in favor of denying Barber’s request for a
stay. See Bucklew, 139 S. Ct. at 1134 (“Courts should police carefully against
attempts to use such challenges as tools to interpose unjustified delay. Last-
minute stays should be the extreme exception, not the norm, and 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.”
(quotations omitted)); Woods v. Comm’r, Ala. Dep’t of Corr., 951 F.3d 1288, 1293
(11th Cir. 2020) (“The Supreme Court has unanimously instructed the lower
federal courts on multiple occasions that we must apply a strong equitable
presumption against the grant of a stay where a claim could have been brought
at such time as to allow consideration of the merits without requiring entry of
a stay.” (quotations omitted)).
29 Because Barber cannot satisfy the first preliminary injunction factor, we
need not consider the other factors. Grayson, 869 F.3d at 1238 n.89.
Nevertheless, those factors also weigh in the State’s favor. See Ray v. Comm’r,
Ala. Dep’t of Corr., 915 F.3d 689, 701 (11th Cir. 2019) (explaining that “[t]he
remainder of the factors we apply when considering a stay amount to a
weighing of the equitable interests of the petitioner, the government, and the
public”). Because Barber cannot show that he faces a substantial risk of serious
harm if he is executed by lethal injection, he cannot show that he faces an
irreparable injury if the stay is not granted. And, if a stay is issued, it would
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23-12242 Opinion of the Court 31
AFFIRMED.
substantially impair the State’s strong interest in seeing Barber’s lawfully
imposed sentence carried out in a timely manner, and it would be adverse to
the public’s interest in seeing the sentence carried out as well. See id. (“[A]s
the Supreme Court has recognized, the [S]tate, the victim, and the victim’s
family also have an important interest in the timely enforcement of [the
inmate’s] sentence.”). Thus, the district court did not clearly abuse its
discretion in denying Barber’s request for a preliminary injunction. Finally,
because the test for a preliminary injunction and a motion for stay of execution
mirror one another, we DENY Barber’s motion for a stay of execution from
this Court.
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23-12242 JILL PRYOR, J., Dissenting 1
JILL PRYOR, Circuit Judge, Dissenting:
Eight months ago, the State of Alabama botched the
execution of Kenneth Eugene Smith. As the State would tell it,
history showed this was an aberration—a regrettable, but isolated,
event. Regrettably, the State is wrong. Mr. Smith’s horrifying
experience was not a singular event; it was just the latest incident
in an uninterrupted pattern of executions by Alabama’s
Department of Corrections (“ADOC”) that involved protracted,
severely painful, and grisly efforts to establish the intravenous lines
necessary to carry the lethal injection drugs into his body. Mr.
Smith asked a panel of this Court—including myself—to stay his
execution because he feared he would be subjected to superadded
pain and terror as the State carried out his death sentence. The
State called his claim speculative and asked us to trust that ADOC
was prepared to perform the execution without incident. We now
know that Mr. Smith was right. Alabama’s last three consecutive
executions, including his, went so badly that Governor Kay Ivey
halted all executions and ordered ADOC to investigate the cause of
the failures. After a three-month “review” of its procedures—
conducted entirely internally, entirely outside the scope of any
court’s or the public’s scrutiny, and without saying what went
wrong or what it fixed as a result—ADOC swears it is ready to try
again, with Mr. Barber as its guinea pig.
The district court gave ADOC the green light because Mr.
Barber cannot know that the pattern will continue with him. After
all, the State made some personnel changes after the review—
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23-12242 JILL PRYOR, J., Dissenting 2
though it was careful to deny that its previous personnel caused or
contributed to the prior failures. Today the panel majority waves
away Mr. Barber’s request that we stay his execution, denying him
a yellow light to press his serious constitutional claim that the State
will violate his Eighth Amendment rights. I dissent. In my view,
Mr. Barber is entitled to a stay of execution. The district abused its
discretion in denying him a preliminary injunction by finding that
the unbroken pattern of botched executions has been interrupted,
without evidence to support that inference. I believe that Mr.
Barber is likely to succeed in his appeal and should be permitted to
return to the district court for some discovery—which he has thus
far largely been denied—into what has been causing ADOC to
systematically botch executions, whether the changes ADOC has
made actually address the cause of the problems, and what changes
could be made to avoid an imminent violation of his Eighth
Amendment right to be executed free of cruel and unusual
treatment.
I. BACKGROUND
A jury convicted Mr. Barber of capital murder based on the
brutal robbery and murder of Dorothy Epps in 2001. The jury
recommended by a vote of 11 to 1 a sentence of death, and the trial
judge adopted the jury’s recommendation. The Alabama Court of
Criminal Appeals affirmed Mr. Barber’s conviction and sentence.
Both the Alabama Supreme Court and the United States Supreme
Court denied certiorari.
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23-12242 JILL PRYOR, J., Dissenting 3
In 2019, a district court denied Mr. Barber’s federal habeas
corpus petition. This Court affirmed the district court’s denial. The
Supreme Court denied certiorari.
In this case, Mr. Barber challenges not his conviction and
death sentence, but the lethal-injection method Alabama will use
to execute him. He claims that Alabama’s method of execution
violates his Eighth Amendment rights. His claim is based on a
recent pattern in which ADOC officials have struggled for
prolonged periods of time to establish intravenous (IV) lines when
attempting to execute death-row prisoners via lethal injection.
Alabama executed Joe Nathan James, Jr. on July 28, 2022.
The execution lasted more than three hours, as ADOC’s IV team
struggled to establish IV lines with which to administer the lethal-
injection drugs. By the time ADOC opened the curtain between
the execution chamber and the observation room for Mr. James to
say his final words, he appeared to be unconscious because he “did
not open his eyes or move and did not respond when asked if he
had any last words,” even though he allegedly had planned on
making a final statement. Doc. 50-13 at 19. 1 Because Mr. James’s
execution was completed, and the process of setting his IV lines
took place behind the curtain hiding the proceedings from the view
of witnesses, no one apart from the ADOC personnel in the
chamber knows for certain what happened during the execution.
But a State autopsy of Mr. James’s body confirmed that he was
1 “Doc.” numbers refer to the district court’s docket entries.
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23-12242 JILL PRYOR, J., Dissenting 4
punctured multiple times, including in his elbow joints, right foot,
forearm, both wrists and both hands during that three-hour
period. 2 Following the execution, Commissioner Hamm told
reporters that “nothing out of the ordinary” happened, but ADOC
later acknowledged that it struggled to establish IV lines in Mr.
James’s body. 3
Despite ADOC’s acknowledgement that Mr. James’s
execution was significantly delayed due to its inability to set the IV
lines, the defendants forged ahead with lethal injections. Just eight
days later, Attorney General Marshall moved the Alabama
Supreme Court to set Mr. Barber’s execution date. Mr. Barber
immediately opposed the motion, arguing that “[t]he
uncertainties” around Mr. James’s execution “demand[ed] that—
before any additional executions are scheduled—the [S]tate
conduct a thorough and complete investigation to determine what
happened, or implement prophylactic measures to ensure it does
not happen again.” Doc. 1-11 at 2. No investigation occurred.
2 The State actually had two forensic pathologists perform autopsies on Mr.
James’s body. The first pathologist found evidence of multiple punctures. The
second pathologist was able to positively identify only two needle punctures.
3 Evan Mealins, Joe Nathan James’ Execution Delayed More than Three Hours by IV
Issues, ADOC Says, Montgomery Advertiser, July 29, 2022,
https://www.montgomeryadvertiser.com/story/news/2022/07/29/joe-
nathan-james-execution-alabama-delayed-iv-issues/10187322002/
[https://perma.cc/N9ZE-XQ65].
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23-12242 JILL PRYOR, J., Dissenting 5
While Attorney General Marshall’s motion to set Mr.
Barber’s execution date was pending, the State tried—and failed—
to execute two more death-row prisoners.
On September 22, 2022, the State attempted to execute Alan
Eugene Miller. It failed, and, according to ADOC, “terminated its
execution efforts because it had problems accessing” Mr. Miller’s
veins. Miller v. Hamm, No. 22-cv-506-RAH, 2022 WL 16720193, at
*1 (M.D. Ala. Nov. 4, 2022). Before ADOC abandoned its attempt
to execute Mr. Miller, ADOC personnel “slapp[ed]” his arms “for
long periods of time” as the IV team tried to locate a vein and
“punctured [his] right elbow pit” in multiple different points trying
to find a vein; he could feel the needle as they “turned [it] in various
directions” to obtain access. Doc. 50-10 at 2–3; see Doc. 51 at 4. Mr.
Miller felt his “veins being pushed around inside [his] body by
needles, which caused [him] great pain and fear.” Doc. 50-10 at 3.
After several attempts with needles “going deeper into [his] body
than ever before, which caused intense physical pain,” Mr. Miller
told the IV team “that [he] could feel that they were not accessing
[his] veins, but rather stabbing around [his] veins.” Id. The IV team
moved on to different parts of his body and “attempted multiple
punctures to his right hand, his left elbow, and his right foot.” Doc.
51 at 4. As the district court in this case noted, Mr. Miller described
how one attempt to access a vein in his foot “caused sudden and
severe pain like he had been electrocuted” because they likely hit a
nerve, and his entire body shook in the restraints. Id. (alterations
adopted) (internal quotation marks omitted). This process
continued for one-and-half hours until the IV team abandoned the
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23-12242 JILL PRYOR, J., Dissenting 6
attempt because the execution had been “postponed.” Doc. 50-10
at 5.
This ordeal occurred despite Commissioner Hamm’s prior
assurance—in a sworn affidavit in Mr. Miller’s lawsuit attempting
to stop his execution based on what happened to Mr. James—that
ADOC was “ready to carry out [Mr. Miller’s] sentence by lethal
injection.” Doc. 50-11. The day after Mr. Miller’s botched
execution, the district judge in his case held an emergency hearing.
At the hearing, ADOC’s counsel represented that “there just was
not sufficient time to gain vein access in the appropriate manner in
this case, and we just ran out of time.” Doc. 38-3 at 20. Yet, just 12
days later, Attorney General Marshall moved the Alabama
Supreme Court to reset Mr. Miller’s execution on an expedited
basis. Miller, 2022 WL 16720193, at *1.
Next, on November 17, 2022, the State attempted to execute
Kenneth Eugene Smith. ADOC strapped Smith to the execution
gurney for four hours beginning at 8:00 p.m.—despite Mr. Smith’s
pending motion before this Court to stay his execution. Beginning
at approximately 10:20 p.m.—two hours after they first strapped
him to the gurney—the ADOC team spent approximately an hour
inserting needles into Mr. Smith’s body to establish IV lines,
including multiple attempts in each of his elbows, arms, and hands,
as well as repeated “stabbing” in his collarbone area. 4 Doc. 50-13 at
4 The State’s lethal-injection protocol authorizes two methods to establish IV
access: “[t]he standard procedure,” or “if the condemned inmate’s veins make
obtaining venous access difficult or problematic, qualified medical personnel
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23-12242 JILL PRYOR, J., Dissenting 7
5. Just before midnight, Commissioner Hamm announced that the
execution had been called off because ADOC personnel failed to
establish IV access after “several” attempts, including by a “central
line.” Id. at 43. 5 Afterward, in his federal lawsuit, Mr. Smith stated
under oath that he experienced “severe physical pain and
emotional trauma” during the attempts to access his veins. Doc.
50-14 at 1.
In response to the three executions with documented
failures, Governor Ivey ordered ADOC to conduct a “top-to-
bottom review” of the lethal-injection execution process. Doc. 51
at 5 (internal quotation marks omitted). She simultaneously asked
Attorney General Marshall to withdraw all pending motions to set
execution dates, including Mr. Barber’s, while ADOC conducted
the investigation. Attorney General Marshall withdrew the
motions. Commissioner Hamm stated that he “agree[d] with
Governor Ivey that” ADOC had to “get [the lethal-injection
protocol] right” and that “[e]verything [was] on the table” for
review,” including “train[ing] and prepar[ation]” and “personnel
and equipment.” Doc. 1-3 at 2.
may perform a central line procedure to obtain venous access.” Doc. 1-2 at 18.
The district court found that the medical personnel’s attempt at a central line
procedure on Mr. Smith was “in line with Alabama’s execution protocol.”
Doc. 51 at 5.
5 See Jarvis Robertson, Another Execution Halted Because of Difficulties with
Intravenous Lines, WVTM, (Nov. 18, 2022),
https://www.wvtm13.com/article/stay-of-execution-granted-to-kenneth-
smith/41999280 [https://perma.cc/QK6D-WBUX].
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23-12242 JILL PRYOR, J., Dissenting 8
A little less than three months later, on February 24, 2023,
Commissioner Hamm sent Governor Ivey a one-and-a-half-page
letter announcing that ADOC’s review was “complete” Doc. 1-5 at
2. The letter stated that ADOC had investigated its own execution
process. It reported that the review included “evaluating” its “legal
strategy in capital litigation matters, training procedures for
[ADOC] staff and medical personnel involved in executions,
increasing the number of medical personnel utilized by [ADOC]
for executions, assisting medical personnel participating in the
process, and the equipment on-hand to support individuals
participating in the execution.” Id. The letter did not reveal
anything about the review’s methodology or results. Without
describing any weaknesses or deficiencies or providing any
explanation for the prior failures, the letter represented that ADOC
had “decided to add to its pool of available medical personnel for
executions” and had “ordered and obtained new equipment . . . for
use in future executions.” 6 Id. at 3. No other changes to the lethal-
injection protocol or processes were noted.
On the same day Commissioner Hamm sent his letter to the
governor, Attorney General Marshall moved for the second time
to set an execution date for Mr. Barber. Mr. Barber immediately
requested discovery from the defendants about ADOC’s review.
6 According to the defendants’ limited discovery responses in this case, the
only new equipment obtained was “[a]dditional straps for securing an inmate
on the execution gurney.” Doc. 38-1 at 8.
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23-12242 JILL PRYOR, J., Dissenting 9
The defendants responded that “there will be no substantive
response to your request[s].” Doc. 1-19 at 3.
Mr. Barber then filed a response in the Alabama Supreme
Court opposing their motion to set his execution. He argued that
ADOC’s perfunctory investigation into its own execution process
was too brief to meaningfully assess the deficiencies; that ADOC
failed to disclose any results from the investigation beyond
Commissioner Hamm’s conclusory letter; and that ADOC made
no meaningful changes to prevent, in Mr. Barber’s execution, the
prolonged, painful efforts to establish IV access experienced by Mr.
James, Mr. Miller, and Mr. Smith. Concurrently, he filed a motion
to stay his execution, a motion to compel the defendants to
respond to his discovery requests, and a motion to preserve
evidence of his own execution.
The Alabama Supreme Court denied without opinion or
oral argument all of Mr. Barber’s motions and granted Attorney
General Marshall’s motion for an execution warrant. The May 3
order authorized ADOC, under a newly-amended Alabama Rule
of Appellate Procedure, to execute Mr. Barber “within a time frame
set by the Governor.” Doc. 1-7 at 2. 7
7 Before ADOC’s investigation was completed, Governor Ivey sent a letter to
the Alabama Supreme Court, urging that court to amend Alabama Rule of
Appellate Procedure 8(d)(1) to expand the time in which ADOC could
complete an execution. The letter included proposed new language that
would allow ADOC more time, specifically if a prisoner’s litigation—like Mr.
Barber’s constitutional challenge, and those filed by Mr. Miller and Mr. Smith
in advance of their failed executions last fall—delayed the execution’s
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23-12242 JILL PRYOR, J., Dissenting 10
Mr. Barber sued the defendants in district court on May 25,
2023, asserting under 42 U.S.C. § 1983 an as-applied Eighth
Amendment challenge to Alabama’s lethal-injection method of
execution. Mr. Barber’s Eighth Amendment claim alleged that he
would experience prolonged, severe, added pain if the State were
permitted to execute him by lethal injection because, among other
reasons:
Despite their repeated failure to establish IV access,
Defendants have not instituted any known and
meaningful safeguards to date. Nor have they
undertaken any effort to ensure that the impending
execution of Mr. Barber does not result in another
prolonged, severely painful, and ultimately botched
attempt. The key problems causing the repeated
failures therefore remain in effect, which places Mr.
Barber in substantial risk of serious harm.
progress. The Court responded by amending the rule. It removed the
provision that “[t]he supreme court shall at the appropriate time enter an
order fixing a date of execution,” Ala. R. App. P. 8(d)(1) (1997), and replaced it
with the following language:
The supreme court shall at the appropriate time enter an order
authorizing the Commissioner of the Department of
Corrections to carry out the inmate’s sentence of death within
a time frame set by the governor . . . .
Ala. R. App. P. 8(d)(1) (2023). Thus, the Alabama Supreme Court would no
longer set a date of execution when issuing an execution warrant; instead, the
amended rule authorized the governor to set a “time frame” for the execution.
Id.USCA11 Case: 23-12242 Document: 27-1 Date Filed: 07/19/2023 Page: 42 of 70
23-12242 JILL PRYOR, J., Dissenting 11
Doc. 1 at 23.
Five days after Mr. Barber filed his complaint alleging that
Alabama’s lethal injection would be unconstitutional as applied to
him, Governor Ivey set Mr. Barber’s execution for the 30-hour
period between July 20, 2023 at 12:00 a.m. and July 21, 2023 at 6:00
a.m.—less than two months away.
As soon as Governor Ivey set the execution date, making
clear that the State would proceed to carry out Mr. Barber’s
execution by lethal injection despite his pending legal challenge,
Mr. Barber sought a preliminary injunction on June 5. He did not
seek to stay his execution but instead sought an order enjoining the
State from executing him by lethal injection and requiring it to
carry out his execution by nitrogen hypoxia. 8
Two days after filing his preliminary injunction motion, Mr.
Barber served his first set of requests for production and
interrogatories in the federal case. The defendants agreed to
expedite discovery due to the compressed timeline. Among other
things, Mr. Barber posed interrogatories concerning ADOC’s
review of its execution procedures in Commissioner Hamm’s
letter and requested documents regarding the same. When the
defendants responded on June 23, the bulk of their responses were
8 The district court construed Mr. Barber’s motion as a motion that “for all
intents and purpose . . . operates as a motion to stay his execution” because
“such an order would effectively stay his execution for an indefinite period
since the Defendants are not prepared to conduct executions by this method.”
Doc. 51 at 9.
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23-12242 JILL PRYOR, J., Dissenting 12
privilege-based objections.9 They did, however, include a response
stating that the investigation found “[n]o deficiencies.” Doc. 45-3 at
2. On June 30, Mr. Barber’s attorneys filed a motion to compel
responses to their discovery requests. That motion is still pending
before the district court.
On July 5, 2023, the district court heard oral argument “on
all pending motions,” including Mr. Barber’s motion for a
preliminary injunction, the defendants’ motion to dismiss, and Mr.
Barber’s motion to compel. Doc. 53 at 4. At the hearing, in support
of the motion for a preliminary injunction, Mr. Barber presented
live testimony from one witness, an experienced registered nurse,
and also introduced sworn affidavits from two additional
witnesses, as well as dozens of exhibits.
At the hearing, the defendants introduced a single piece of
evidence to oppose Mr. Barber’s motion: an affidavit by Warden
Raybon dated June 29, 2023. This was the first time Mr. Barber
learned about the affidavit or its contents, and he moved to strike
it. He argued that the defendants had “not previously produced
information [] contained in th[e] affidavit that should have been
produced before today” in response to their discovery requests. Id.
at 118. Further, by introducing the surprise affidavit—without any
supporting information—he argued, the defendants were “gaining
an advantage from selectively disclosing pieces of their
9 Mr. Barber has repeatedly and consistently offered to agree to enter a
protective order with the defendants to mitigate security and confidentiality
concerns.
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23-12242 JILL PRYOR, J., Dissenting 13
investigation.” Id. at 120. Essentially, they were saying that Barber
did not need to worry about the “three consecutively botched
executions” because of the investigation while “not providing any
discovery whatsoever . . . about what happened in that
investigation unless it is a selective waiver to their benefit.” Id.Despite describing the defendants’ choice to “spring” the
affidavit on Mr. Barber “in the middle of a hearing” as “purposeful,”
the district court admitted the affidavit. Id. at 122. In the affidavit,
Warden Raybon averred that the personnel who would perform
Mr. Barber’s execution “did not participate in the preparations for”
the executions of Mr. James, Mr. Miller, and Mr. Smith. Doc. 50-27
at 2. Warden Raybon represented that he “participated in the
interviews with candidates for the expanded pool of medical
personnel” and in the interviews “candidates were asked about
their relevant experience, licenses, and certifications.” Id. at 1–2. He
also stated in conclusory fashion that those selected “had extensive
and current experience with setting IV lines.” Id. at 2. There was
no additional supporting detail, even though such information was
covered by Mr. Barber’s discovery requests about the credentials
and qualifications of the IV team members. Warden Raybon was
not present at the hearing; Mr. Barber’s attorneys had no
opportunity to cross-examine him.
After the hearing, the district court denied Mr. Barber’s
motion for a preliminary injunction. The district court found that,
following its internal review, ADOC made “meaningful” changes
to the execution protocol and procedures including “a longer time
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23-12242 JILL PRYOR, J., Dissenting 14
frame for the execution set by the Governor and a new IV team
consisting of individuals who did not participate in any prior
execution or execution attempt.” Doc. 51 at 6, 22. The district court
concluded that, as a result, ADOC’s “intervening actions have
disrupted the pattern” of prolonged execution attempts, and
therefore Mr. Barber could not demonstrate a substantial risk of
serious harm warranting a preliminary injunction. Id. at 16–17. The
district court did not address the remaining preliminary-injunction
factors.10
Mr. Barber filed a notice of appeal challenging the district
court’s denial of his motion for a preliminary injunction. He moves
this Court to stay his execution pending appeal.
II. LEGAL STANDARD
We review the district court’s denial of a motion for
preliminary injunction for abuse of discretion. See Long v. Sec’y,
Dep’t of Corr., 924 F.3d 1171, 1175 (11th Cir. 2019). “A district court
abuses its discretion if, among other things, it applies an incorrect
legal standard, follows improper procedures in making the
10 To succeed on a motion for a preliminary injunction, a movant must show:
“(1) a substantial likelihood of success on the merits; (2) that the preliminary
injunction is necessary to prevent irreparable injury; (3) that the threatened
injury outweighs the harm the preliminary injunction would cause the other
litigant; and (4) that the preliminary injunction would not be averse to the
public interest.” Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271 (11th Cir. 2014).
Having concluded that Mr. Barber failed to satisfy the first requirement, the
district court was not required to address the other three factors. See Schiavo
ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. 2005).
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23-12242 JILL PRYOR, J., Dissenting 15
determination, or makes findings of fact that are clearly
erroneous.” Id. (internal quotation marks omitted). “A finding is
clearly erroneous when, although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” Ferguson
v. Comm’r, Ala. Dep’t of Corr., 69 F.4th 1243, 1254 (11th Cir. 2023)
(alteration adopted) (internal quotation marks omitted). We have
explained that under this standard, “[a]t a minimum, there must be
substantial evidence” to support a finding. United States v. Ellisor,
522 F.3d 1255, 1273 n.25 (11th Cir. 2008).
In deciding a motion to stay execution, we must determine
whether the movant has established that “(1) he has a substantial
likelihood of success on the merits; (2) he will suffer irreparable
injury unless the injunction issues; (3) the stay would not
substantially harm the other litigant; and (4) if issued, the
injunction would not be adverse to the public interest.” Price v.
Comm’r, Dep’t of Corr., 920 F.3d 1317, 1323 (11th Cir. 2019)
(emphasis omitted) (internal quotation marks omitted). “The first
and most important question regarding a stay of execution is
whether the petitioner is substantially likely to succeed on the
merits of his claim.” Id. (internal quotation marks omitted).
III. DISCUSSION
Mr. Barber argues on appeal that the district court abused its
discretion by denying his motion to preliminarily enjoin the
defendants from executing him by lethal injection because the
court relied on clearly erroneous factual findings to conclude that
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23-12242 JILL PRYOR, J., Dissenting 16
he had not demonstrated a substantial likelihood of success on the
merits. And in his motion to stay his execution pending appeal, Mr.
Barber argues that he is likely to succeed on the merits of his Eighth
Amendment claim, that the other stay-of-execution factors also
weigh in his favor, and that he has not caused unnecessary delay
that weighs against his entitlement to a stay.
Because I agree with Mr. Barber that the district court’s
findings—that the changes ADOC made after its investigation
interrupted the pattern of botched executions on which Mr.
Barber’s claim relies—were clearly erroneous, I would reverse the
district court’s order denying the motion for a preliminary
injunction. Further, because I agree with Mr. Barber that he has
satisfied the stay-of-execution factors and has not caused
unnecessary delay, I would grant his motion to stay his execution.
I first address the merits of Mr. Barber’s appeal. Next, I
consider each of the stay-of-execution factors.
A. The district court abused its discretion in denying Mr.
Barber’s motion for preliminary injunction.
In his § 1983 lawsuit, Barber claims that his impending
execution by lethal injection is substantially likely to violate the
Eighth Amendment’s prohibition on cruel and unusual
punishment. To succeed on his claim, Mr. Barber must show, first,
that the method of execution he challenges poses “a substantial risk
of serious harm,” meaning “an objectively intolerable risk of harm
that prevents prison officials from pleading that they were
subjectively blameless for purposes of the Eighth Amendment.”
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23-12242 JILL PRYOR, J., Dissenting 17
Baze v. Rees, 553 U.S. 35, 50 (2008) (internal quotation marks
omitted). Second, he must identify “a feasible and readily
implemented alternative method of execution that would
significantly reduce a substantial risk of severe pain.” Bucklew v.
Precythe, 139 S. Ct. 1112, 1125 (2019). Because Mr. Barber has
shown a substantial likelihood that he will succeed on this claim,
the district court abused its discretion by denying his motion for a
preliminary injunction.
The district court concluded that Mr. Barber had not shown
a substantial likelihood of success on the merits of his Eighth
Amendment claim because he failed to establish the first element
of his Eighth Amendment method-of-execution claim, a substantial
risk of serious harm. The district court’s denial of Mr. Barber’s
motion for a preliminary injunction rested on its finding that
“ADOC’s investigation and the corresponding changes were
designed to address the issues seen in the previous three execution
attempts and demonstrate an attempt to remedy the emergent
pattern recognized in” Smith v. Commissioner, Alabama Department
of Corrections, No. 22-13781, 2022 WL 17069492 (11th Cir. Nov. 17,
2022) (unpublished). Doc. 51 at 17; see id. at 16–17 (finding that “in
Barber’s case, intervening actions have disrupted the pattern
discussed in Smith”); see also id. at 18 (finding that ADOC’s
“investigation interrupt[ed] the emergent pattern seen in recent
execution attempts”). Thus, the court concluded, Mr. Barber failed
to establish the first prong of his Eighth Amendment claim because
he “cannot show the investigation and corresponding changes will
USCA11 Case: 23-12242 Document: 27-1 Date Filed: 07/19/2023 Page: 49 of 70
23-12242 JILL PRYOR, J., Dissenting 18
not address the prolonged efforts to obtain IV access detailed in
Smith.” Id. at 17.
As I explain below, the district court relied on clearly
erroneous factual findings that ADOC’s “intervening actions have
disrupted the pattern discussed in Smith” in concluding that Mr.
Barber cannot demonstrate a substantial risk of serious harm. Doc.
51 at 16–17.
1. Mr. Barber faces a substantial risk of serious harm.
A “substantial risk of serious harm” for Eighth Amendment
purposes can involve “a lingering death,” Baze, 553 U.S. at 49(internal quotation marks omitted), or the “superaddition of terror
[or] pain” to the death sentence. Bucklew, 139 S. Ct. at 1124(alteration adopted) (internal quotation marks omitted). Mr.
Barber maintains that he faces such a risk because ADOC’s three
previous attempts to carry out executions by lethal injection have
suffered from serious problems that will also plague his own
execution: “protracted efforts to establish IV access.” Appellant’s
Br. at 19 (internal quotation marks omitted).
We recognized in Smith that a prolonged period of painful,
unsuccessful attempts to obtain IV access could amount to cruelly
“superadd[ing] pain to the death sentence” in violation of the
Eighth Amendment. 11 Bucklew, 139 S. Ct. at 1127; Smith, 2022 WL
11 Mr. Barber also argues that a prolonged execution attempt including
unsuccessful multiple attempts to access his veins will likely cause him to
suffer a “lingering death.” Baze, 53 U.S. at 49 (internal quotation marks
USCA11 Case: 23-12242 Document: 27-1 Date Filed: 07/19/2023 Page: 50 of 70
23-12242 JILL PRYOR, J., Dissenting 19
17069492, at *4. In my view, given the pattern that has emerged
from Alabama’s last three executions of protracted, painful, and in
two of the three cases, ultimately unsuccessful attempts to
establish IV access, Mr. Barber has shown a substantial likelihood
of success on the merits. I would reach this conclusion for the
reasons set forth in this Court’s recent unpublished opinion in
Smith. In that case, we held that Mr. Smith stated an Eighth
Amendment claim based on the same pattern of lethal-execution
failures—a pattern which now includes Mr. Smith’s own failed
execution attempt since our Smith decision issued.
Mr. Smith appealed the district court’s dismissal of his § 1983
Eighth Amendment challenge to Alabama’s lethal-injection
method of execution. Smith, 2022 WL 17069492, at *5. In his
proposed amended complaint, he alleged that Alabama’s
“Execution Protocol [did] not expressly prevent the hours-long
attempt to establish intravenous access that allegedly resulted in
superadded pain during James’s execution and Miller’s attempted
execution.” Id. at *3. A panel of this Court reversed the district
court’s denial of Mr. Smith’s motion for leave to amend. We
explained that the allegations in the proposed amended complaint
“show[ed] a pattern of difficulty by ADOC in achieving IV access
with prolonged attempts.” Id. at *4. Based on the pattern of
ADOC’s failures, and Mr. Smith’s allegations that his body mass
index, among other things, would make establishing IV access
omitted). Establishing either a substantial risk of superadded pain or a
lingering death will suffice; he is not required to establish both.
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23-12242 JILL PRYOR, J., Dissenting 20
difficult, we concluded that he had “plausibly pleaded that,
considering ADOC’s inability to establish difficult IVs swiftly and
successfully in the past, he will face superadded pain as the
execution team attempts to gain IV access.” Id. at *5. I acknowledge
that as an unpublished opinion, Smith is not binding precedent, and
unlike this case, it was at the motion to dismiss stage. But Smith is
highly persuasive authority on whether prolonged attempts to gain
IV access through standard IVs or through a central-line procedure
can rise to the level of an Eighth Amendment violation given that
Mr. Barber makes essentially the same claim.12
12 Following Mr. Smith’s failed attempted execution, the defendants in
Mr. Smith’s § 1983 case moved to dismiss his complaint, arguing that
“difficulty establishing IV access and the pain resulting from being poked and
prodded with needles [did] not rise to the level of cruel and unusual
punishment.” Smith v. Hamm, No. 2:22-CV-497-RAH, 2023 WL 4353143, at *7
(M.D. Ala. July 5, 2023). District Judge Austin Huffaker denied the motion to
dismiss and rejected this argument, observing that Mr. “Smith d[id] not claim
that the use of needles to establish venous access is per se cruel and unusual
punishment.” Id. at *7. Instead, the court explained that Mr. Smith was
claiming that “multiple needle insertions over the course of one-to-two hours
into muscle and into the collarbone in a manner emulating being stabbed in
the chest . . . goes ‘so far beyond what is needed to carry out a death sentence
that it could only be explained as reflecting the infliction of pain for pain’s
sake.’” Id. at *7 (alterations adopted) (quoting Bucklew, 139 S. Ct. at 1124).
Judge Huffaker concluded that these allegations were sufficient to state a claim
for relief. Id. Using reasoning similar to Judge Huffaker’s, I would conclude,
based on Mr. Barber’s evidence showing a pattern of multiple executions
involving painful protracted efforts to establish IV access, that he has shown a
substantial likelihood of success on his claim.
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23-12242 JILL PRYOR, J., Dissenting 21
The majority concludes that Mr. Barber cannot carry his
burden of showing that he faces a substantial risk of serious harm
during his execution because our decision in Nance v. Commissioner,
Georgia Department of Corrections, 59 F.4th 1149 (11th Cir. 2023),
forecloses the claim that a prolonged period of unsuccessful
attempts to obtain IV access amounts to cruelly superadding pain
to the death sentence. See Maj. Op. at 23–24 & n.20 (“What matters
is that Nance held that repeatedly and futilely pricking an inmate
with a needle does not rise to an unconstitutional level of pain . . . it
is not an Eighth Amendment violation.”). The majority misreads
Nance.
Michael Nance, a Georgia death-row prisoner, filed a § 1983
action challenging the constitutionality of Georgia’s lethal-
injection protocol as applied to him. 59 F.4th at 1152. In his
complaint, Mr. Nance alleged, among other things, that his veins
were compromised and that, as a result, when the Department of
Corrections prepared him for execution by lethal injection, he
might “blow” a vein “and leak the drug into the surrounding
tissue.” Id. He also alleged that the Department’s “repeated[]
attempt[s] to insert needles into unidentifiable and/or inaccessible
veins” would subject him to an unconstitutional level of pain. Id. at
1156 (internal quotation marks omitted). This Court reversed the
district court’s dismissal of his claim that due to the poor condition
of his veins, lethal injection was likely to cause him serious pain. Id.
But we concluded that the district court properly rejected Nance’s
claim that he would be subjected to an unconstitutional level of
pain if he were “repeatedly prick[ed] with a needle.” Id. at 1157. We
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said, “Nance did not plausibly allege that a futile attempt to locate
a vein would give rise to a constitutionally intolerable level of
pain.” Id.
Importantly, there was no allegation in Nance that Georgia
had a track record of past executions in which it subjected death-
row prisoners to lengthy periods of multiple painful attempts to
establish IV lines in the execution chamber. Nance merely
recognized that, without more, a bare allegation that a death-row
prisoner would be subjected to a constitutionally intolerable level
of pain due to repeated attempts to establish an IV line is not
plausible. See id. Here, though, we have more. Mr. Barber alleged
in his complaint—and later came forward with evidence of—a
pattern based on previous executions in which ADOC superadded
pain through its prolonged attempts to establish IV access.
Because there was no allegation of such a pattern in Nance,
there was no holding that controls this case. See United States v.
Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (explaining that
“[t]he holdings of a prior decision can reach only as far as the facts
and circumstances presented to the Court in the case which
produced that decision” (internal quotation marks omitted)); see
also United States v. Files, 63 F.4th 920, 929 (11th Cir. 2023)
(explaining that “legal conclusions predicated on facts that aren’t
actually at issue” are dicta); Edwards v. Prime, Inc., 602 F.3d 1276,
1298 (11th Cir. 2010) (“We have pointed out many times that
regardless of what a court says in its opinion, the decision can hold
nothing beyond the facts of that case.”).
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Here, the district court’s order and the evidence in the
record undoubtedly show that there is a pattern of ADOC
superadding pain during executions throughout its prolonged
attempts to establish IV access. The unrebutted evidence from Mr.
Barber’s three expert witnesses establishes that IV access should
take only a few minutes and never more than an hour, even with a
resisting and uncooperative subject. The defendants offered no
evidence to refute this testimony. And the essential facts of the
execution failures in the cases of Mr. James, Mr. Miller, and Mr.
Smith are largely undisputed. In each case, there were prolonged
attempts—spanning from one to several hours—to gain IV access
that were made in various parts of the prisoners’ bodies, resulting
in multiple, visible injuries. Mr. Miller testified by affidavit in this
case that during the repeated, protracted efforts, he felt his “veins
being pushed around inside [his] body by needles, which caused
[him] great pain and fear.” Doc. 50-10 at 3. One of the many
attempts to access a vein in in his foot likely hit a nerve and “caused
sudden and severe pain” like he “had been electrocuted,” which
made his “entire body shake in the restraints.” Id. at 4. And Mr.
Smith described (under oath) that he experienced “severe physical
pain and emotional trauma” during the attempts to access his veins.
Doc. 50-14 at 1. Those efforts included including repeated needle
insertions in his collarbone area to gain access through a central
line which he said felt like “stabbing.” Doc. 50-13 at 5. As members
of the IV team moved on from attempts in his extremities to the
collarbone-area insertions, Mr. Smith was “very fearful because he
did not know what was happening.” Id. at 38. These collarbone
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“needle jabs . . . caus[ed] him severe pain.” Id. Given this pattern,
any difficulty establishing IV access in Mr. Barber’s execution could
not be described as an “isolated mishap” that is merely
“regrettable.” Baze, 553 U.S. at 50. Rather, the pattern
demonstrates that Alabama’s procedure “gives rise to a substantial
risk of serious harm” in Mr. Barber’s case. Id. (internal quotation
marks omitted).
The district court found that Mr. Barber failed to
demonstrate a substantial risk of serious harm because he could not
“show that the investigation and corresponding changes will not
address the pattern of prolonged efforts to obtain IV access detailed
in Smith.” Doc. 51 at 17. In the district court’s and the defendants’
view, ADOC’s review of its own execution protocol and
procedures and the subsequent changes ADOC made have
intervened and disrupted the pattern of prolonged execution
efforts.
Mr. Barber’s execution is the first that Alabama will attempt
since its failed executions of Mr. Miller and Mr. Smith. As the
district court explained, after Mr. Smith’s execution was called off,
Governor Ivey called for a “top-to-bottom’ review” of the State’s
legal injection policies and procedures to determine what had gone
wrong and how to fix it. Id. at 5 (internal quotation marks omitted).
In addition, Commissioner Hamm promised that “[e]verything
[was] on the table for review.” Doc. 1-3 at 2. And yet the only
information the defendants have disclosed about the review is
Commissioner Hamm’s one-and-a-half-page letter to Governor
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Ivey concluding that he was “confident that the Department is as
ready as possible” to perform executions. Doc. 1-5 at 3. The
defendants’ inexplicable position in this case—despite the pattern
of execution failures so serious that it caused the governor to call
for an investigation and ask the State’s Attorney General to halt
executions pending the outcome—is that “[n]o deficiencies were
found” during the review. Doc. 38-1 at 3.
This denial and conclusory reassurance resemble the
defendants’ public comments made after the execution of Mr.
James and the attempted executions of Mr. Miller and Mr. Smith.
After the State spent three hours trying to gain IV access to execute
Mr. James, Commissioner Hamm told reporters that “nothing out
of the ordinary happened” during the execution. Doc. 50-5 at 2. Of
Mr. Miller’s attempted execution, an ADOC representative told the
district judge in his case that “there just was not sufficient time to
gain vein access.” Doc. 38-3 at 19. This failure occurred after
Commissioner Hamm assured the court, in a sworn affidavit, that
ADOC was “ready to carry out [Mr. Miller’s] sentence by lethal
injection on September 22, 2022.” Doc. 50-11. And when ADOC
tried and failed to set Mr. Smith’s IV lines, Commissioner Hamm’s
press conference again explained that the IV team simply ran out
of time.13
13 See Video of Defendant Hamm’s press conference, available online at
https://twitter.com/i/broadcasts/1YqJDorPpmwGV.
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Given the minimal evidence that ADOC provided about its
review beyond its position in this case that “[n]o deficiencies were
found,” Doc. 38-1 at 3, and ADOC’s own refusal to link the changes
to any findings in its review, there was no reasonable basis for the
district court to find that the investigation and subsequent changes
by ADOC severed the causal chain between the lethal-injection
procedures and the pattern of botched execution efforts. The first
change the district court identified was “a personnel change.” Doc.
51 at 6. ADOC represented that “no person who will be responsible
for setting IV lines during Mr. Barber’s execution participated in
any previous execution.” Id. (alteration adopted) (internal
quotation mark omitted). The district court also credited and relied
upon Warden Raybon’s statements in the affidavit the defendants
introduced for the first time at the hearing, that he “participated in
the interviews with candidates from an expanded pool of medical
personnel eligible to place the IV.” Id. (internal quotation marks
omitted). The second change was that the governor is now
permitted “to set an extended time frame to conduct executions.”
Id. at 7. The district court found that this change was significant
because “[t]he extended time permits the medical personnel to set
the IV without the time pressure caused by legal challenges on the
execution date.” Id. The district court found that together “[t]hese
intervening actions cut off” the pattern of executions requiring
protracted efforts to establish IV access. Id. at 22.
The district court clearly erred because there was no
evidence in the record to support its inference that the
investigation led to any meaningful change in Alabama’s practices
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and procedures that would disrupt the pattern of prolonged efforts
to obtain IV access. I address in more detail why, for each
purported change, the record does not support the district court’s
causal inference.
a. Personnel Changes
After finding “[n]o deficiencies” with the execution protocol,
Doc. 38-1 at 3, and without saying what weaknesses the changes
were designed to address, ADOC maintains that it made some
personnel-related changes to the IV team for lethal-injection
executions that the district court found made Mr. Barber’s
allegations that he will suffer the same fate as Mr. James, Mr. Miller,
and Mr. Smith “speculative.” Doc. 51 at 22. Thus, Mr. Barber has
failed to meet his burden to establish a substantial risk of serious
harm.14 The defendants concede that the new IV team “could
possibly encounter similar difficulties,” Doc. 35 at 12 (emphasis
omitted), during Mr. Barber’s execution; however, they maintain
that this possibility does not present a substantial risk. I disagree.
To prove the changes ADOC made after its review, the
defendants introduced only a single piece of evidence: a two-page
affidavit—never disclosed to Mr. Barber’s counsel—by Warden
Raybon containing four paragraphs about the personnel changes.
The affidavit stated that the personnel who would be responsible
14 The district court’s order describes “three meaningful changes” made by
ADOC. Doc. 51 at 6. The list includes changes in personnel and changes in the
selection of personnel as two separate changes. For clarity, we address the
district court’s findings regarding personnel together.
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23-12242 JILL PRYOR, J., Dissenting 28
for setting the IV lines for Mr. Barber’s execution “did not
participate in the preparations for” the executions of Mr. James,
Mr. Miller, or Mr. Smith; that Warden Raybon “participated in the
interviews with candidates for the expanded pool of medical
personnel”; that in the interviews “candidates were asked about
their relevant experience, licenses, and certifications,” and that
those selected “had extensive and current experience with setting
IV lines.” Doc. 50-27 at 1–2. The district court admitted the affidavit
over Mr. Barber’s objections that he previously was unaware of the
affidavit and in fact had requested in discovery and moved to
compel the defendants to produce the very information it
contained. Based on the affidavit, the district court inferred that the
new IV team and Warden Raybon’s participation in the interviews
with candidates cut off the pattern we described in Smith. But in
the absence of any evidence about the cause of the prior failures, in
the affidavit or anywhere in the record, the district court’s finding
that the change in the IV team interrupted the pattern was clearly
erroneous.
As an initial matter, it is difficult to see how personnel
changes would cut off the pattern given the defendants’ insistence
that their review found “[n]o deficiencies,” in personnel or
otherwise. Doc. 38-1 at 3. In the absence of any evidence about
what caused the failures, there is simply no basis for concluding
that any given changes will alleviate the failures. Here, for example,
there is no evidence in the record from which this Court or the
district court could glean whether the “expanded pool of medical
personnel” have the same or similar credentials as the former IV
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23-12242 JILL PRYOR, J., Dissenting 29
team members who participated in the previous execution
attempts. 15 Hiring a new IV team does not ensure a more effective
team without knowing facts about the old team for comparison.
And Warden Raybon’s representation that the expanded pool of
personnel all had “extensive . . . experience in setting IV lines”
proves nothing unless we know how their experience compares to
that of the former team, or even whether a lack of experience
contributed to the prior problems. And no evidence reveals
whether the ADOC Commissioner previously participated in
interviews for the IV team pool. And as far as I can tell from the
record, Commissioner Hamm is not a medical professional or
expert; there is no evidence to suggest that his participation in
personnel interviews was likely to have any meaningful impact.
Ultimately, the Raybon affidavit raises more questions than
it purports to answer. And it is worth mentioning that we lack
answers to these questions because the defendants refused to
produce documents or information regarding the investigation, the
selection process for the new IV team, or details about the group’s
qualifications compared with former team members. Neither Mr.
Barber nor any court has had the chance to test Warden Raybon’s
15 The defendants produced in discovery redacted copies of licenses and
certifications as emergency medical technicians (EMTs), paramedics, and one
registered nurse. This documentation said nothing about their experience in
setting IV lines, and Mr. Barber’s unrebutted expert testimony established that
although nurses and EMTs might be qualified to set IV lines, whether they
were qualified would depend on their individual training and experience, none
of which is revealed in the documents the defendants produced.
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assertions. The affidavit offered selective, conclusory statements in
a summary and self-serving fashion while the defendants were
unwilling to provide any supporting information other than
redacted copies of licenses and certifications. Without more, the
statements in the Raybon affidavit simply do not support the
district court’s inference that the personnel changes the defendants
made were likely to break the pattern of execution failures at the
heart of Mr. Barber’s method-of-execution claim.
b. Expanded time frame
The district court also relied upon the expanded time in
which the State may complete the execution (from 6:00 p.m.–12:00
a.m. to 6:00 p.m.–6:00 a.m.) as a factor that cuts off the pattern on
which Mr. Barber’s claim relies. I fail to see how that change
reduces the likelihood that Mr. Barber will suffer a prolonged
period of painful attempts to obtain IV access. To the contrary, I
agree with Mr. Barber that it increases it increases the risk that he
will suffer a constitutional violation. The district court’s inference
was unsupported by the record and thus an abuse of discretion.
Under Alabama’s newly-amended Rule of Appellate
Procedure 8(d)(1), the Alabama Supreme Court no longer sets the
date or time frame for an execution. Instead, the Court authorizes
the governor to set a time frame. Ala. R. App. P. 8(d)(1). Governor
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Ivey set the time frame for Mr. Barber’s execution as July 20, 2023,
at 12:00 a.m. through July 21, 2023, at 6:00 a.m. 16
Mr. Miller and Mr. Smith each recounted their own
experiences during which ADOC personnel spent one hour and
one-and-a-half hours, respectively, attempting to establish IV lines.
They testified by affidavit that they experienced severe pain owing
to the prolonged period and multiple punctures before their
executions were halted as the expiration of their warrants was
approaching.
It may be that the expanded execution time frame will allow
the State to complete Mr. Barber’s execution before the warrant
expires. But it is unreasonable to conclude it will do anything to
prevent Mr. Barber from suffering superadded pain. The expanded
time frame merely affords the IV team six additional hours to
attempt to establish an IV line, making it more, not less, likely that
Mr. Barber will suffer additional pain inflicted through prolonged
attempts to access his veins. This is particularly true given the
evidence in the record in which Mr. Miller and Mr. Smith each
recounted their own experiences during which ADOC personnel
spent 90 minutes and around one hour, respectively, attempting to
establish IV lines. Each alleged he experienced severe pain owing
16 Though the expanded time frame is 30 hours, instead of 24 hours, the
effective scheduled time of Mr. Barber’s execution is the 12-hour period
between July 20, 2023, at 6:00 p.m. and July 21, 2023, at 6:00 a.m. See Doc. 53
at 127 (defendants stating that Commissioner Hamm planned to start
“executions at six p.m.,” and “continuing to no later than . . . six a.m.”).
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to the prolonged period of time spent attempting to establish IV
access through multiple punctures before his execution was halted
as the expiration of his warrant was approaching.
The defendants blame the botched executions on last-
minute legal challenges—which are, of course, commonplace in
the execution-warrant setting. The district court accepted as fact
ADOC’s representation that “single-day execution warrant[s] that
would expire at midnight . . . caused unnecessary deadline pressure
for [ADOC] personnel.” Doc. 1-5 at 2. But ADOC has never said,
and the record contains no evidence, that decreased time pressure
will increase the IV team’s ability to achieve IV access. I see no
evidence of a causal link supporting an inference that making it
“harder for inmates to run out the clock” ensures the IV team will
be able to establish IV access without subjecting the prisoner to
prolonged, painful attempts to do so. Id. The district court clearly
erred by concluding the expanded time frame would alleviate that
problem.
Further, the defendants have taken the position that they
can, consistent with the Eighth Amendment, persist in painful
attempts to establish IV access as long as they find it “necessary”:
THE COURT: Well, would you agree with me that at
some point it could cross the line into an Eighth
Amendment violation? That the attempts to find a
vein to access for IV placement, that there has to be a
line?
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COUNSEL: Hypothetically, Your Honor, you know,
I think that the deciding line is necessity. We heard
some testimony earlier about attempting to gain IV
access in a hospital setting. You don’t stop because
you have to do it.
You know, hypothetically if an inmate was
actually being punctured, quote, all over his body in
locations where you couldn’t obtain IV access, it
wouldn’t be necessary. If we obtained IV access and
we continued puncturing the condemned, that would
not be necessary. But it’s the State’s position that the
attempts to gain IV access necessary—you know, it’s
the necessity that really matters.
I couldn’t possibly speak to the discretion that
resides with Defendant [Commissioner] Hamm to
decide whether it’s possible, and we have certainly in
previous cases decided to cease efforts to obtain IV
access. But I couldn’t speak to where that line would
be as I stand here right now, Your Honor.
Doc. 53 at 131–32. Under the defendants’ view, if they deem it
“necessary,” ADOC could use the additional six hours to attempt
IV access on Mr. Barber.
In the absence of other meaningful changes, the additional
six hours of time for ADOC personnel to attempt to set IV lines,
through the standard procedure or through the more complicated
central line procedure, and administer the lethal injection makes it
more likely that Mr. Barber will experience prolonged, painful
efforts to establish IV lines. The district court’s finding that this
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23-12242 JILL PRYOR, J., Dissenting 34
“meaningful change” disrupts the pattern, defeating Mr. Barber’s
likelihood of succeeding on his Eighth Amendment claim, is not
supported by substantial evidence, and is therefore clearly
erroneous.17
2. Mr. Barber has identified an alternative method of execution.
Mr. Barber has also satisfied the second prong of his Eighth
Amendment claim. I agree with the district court that he
“successfully identified nitrogen hypoxia as a feasible, readily
implemented alternative method of execution.” Doc. 51 at 14. Our
binding precedent in Price establishes that nitrogen hypoxia is an
alternative method of execution in Alabama as a matter of law. 920
F.3d at 1328; see also Smith, 2022 WL 17069492, at *5 (holding
nitrogen hypoxia is an available alternative).
17 The district court made another distinct error in concluding that Mr. Barber
failed to demonstrate a substantial risk of serious harm. The court concluded
that Mr. Barber’s Eighth Amendment claim failed because he made “no
allegation in his complaint that he has a specific, physical condition or infirmity
that makes it more difficult to access his veins.” Doc. 51 at 17–18. Although in
Smith this Court noted Mr. Smith’s allegations that his medical condition
would make IV access more difficult, we have never held that such allegations
are required. Put differently, we have never held that a pattern such as Mr.
Smith and now Mr. Barber alleged would not suffice to state a claim. But, even
assuming Mr. Barber must provide some evidence of personalized risk that the
IV team will struggle to access his veins, he provided documentary evidence
of his own high body-mass index and testimony at the preliminary injunction
hearing that ADOC personnel have struggled in the past to access his veins.
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B. Mr. Barber satisfies the stay-of-execution factors.
I dissent, too, from the majority’s decision to deny Mr.
Barber’s motion to stay his execution. I would conclude that he
satisfied the relevant factors and the equities weigh in favor of
granting him a stay.
1. Mr. Barber is likely to succeed on the merits.
As explained above, I would conclude that the district court
abused its discretion by denying Mr. Barber’s motion to
preliminarily enjoin the State from executing him by lethal
injection. For the same reasons, he is likely to succeed on the merits
of his Eighth Amendment claim. As I see it, this factor weighs
heavily in favor of granting Mr. Barber’s motion to stay his
execution pending the resolution of his constitutional challenge.
2. Mr. Barber faces irreparable injury if a stay is not granted.
Having determined that Mr. Barber faces a substantial risk
of “superadd[ed] pain” if the State attempts to execute him by lethal
injection, I would conclude Mr. Barber would be irreparably
harmed if we do not grant him a stay-of-execution. The defendants
do not contest that this factor weighs in Mr. Barber’s favor.
3. A stay would not substantially injure the defendants.
I also would conclude that a stay would not cause the
defendants substantial injury. Throughout this litigation, Mr.
Barber has sought narrow, limited relief: to stay his execution by
lethal injection until his Eighth Amendment claim is adjudicated.
This means that the defendants remain free to execute him by
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other means, including nitrogen hypoxia, which Commissioner
Hamm and Attorney General Marshall have repeatedly stated is
“close” to being available, perhaps as soon as the end of the year.18
The defendants’ own representations during this litigation have
caused confusion on this very issue. In their brief opposing Mr.
Barber’s motion for a preliminary injunction, the defendants asked
the district court to craft Mr. Barber’s relief such that the State
could still proceed with his execution by nitrogen hypoxia on July
20, 2023. When asked during the preliminary injunction hearing if
the State was, in fact, ready to perform executions using nitrogen
hypoxia, counsel for the defendants demurred and said they were
not.
And the fact that Governor Ivey waited until May 30 and
then chose a 30-hour warrant period commencing on July 20,
knowing that Mr. Barber had filed this lawsuit, demonstrates that
the State’s time frame is arbitrary and the need to execute Mr.
Barber immediately has been manufactured or manipulated. A
minimal delay in the face of a serious constitutional claim does not
amount to substantial injury to the defendants.
4. The public interest weighs in favor of a stay.
The final factor—whether the stay would be adverse to the
public interest—weighs firmly in Mr. Barber’s favor. See Price,
18 See, e.g., Kim Chandler, Alabama ‘Close’ to Finishing Nitrogen Execution
Protocol, Associated Press, Feb. 15, 2023, https://apnews.com/article/crime-
alabama-5818261f3209a332bb4badf280960ca1 [https://perma.cc/4NLY-
6SD9].
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920 F.3d at 1323. We have held that “the public interest is served
when constitutional rights are protected.” Democratic Exec. Comm.
of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019). “[N]either
Alabama nor the public has any interest in carrying out an
execution in a manner that violates . . . the laws of the United
States.” Ray v. Comm’r, Ala. Dep’t of Corr., 915 F.3d 689, 702 (11th
Cir. 2019). The public interest would not be harmed by a delay.
5. Because Mr. Barber has not unreasonably delayed seeking
relief, the equities do not weigh against a stay.
Mr. Barber has pursued his Eighth Amendment claim with
reasonable diligence. The defendants argue that we should deny
Mr. Barber’s stay motion because he “intentionally delayed” suing
the defendants “as long as he possibly could.” Appellees’ Br. at 6.
They contend that delay merits denial of the motion to stay
because “[l]ast-minute stays should be the extreme exception, not
the norm, and 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, 139 S. Ct. at 1134(internal quotation marks omitted). But I am not persuaded that
Mr. Barber has engaged in “dilatory litigation tactics,” Appellees’
Br. at 9, that turn the equities against a stay of execution.
Attorney General Marshall moved the Alabama Supreme
Court to authorize Mr. Barber’s execution on February 24, 2023—
the same day Commissioner Hamm announced that ADOC’s
review was complete. In the defendants’ version of events, Mr.
Barber “did nothing” to challenge his execution by lethal injection
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for three months between February and when he filed his federal
lawsuit on May 25. Id. at 7. But their timeline is misleading. Mere
days after Attorney General Marshall filed his motion to set Mr.
Barber’s execution date as March 31, Mr. Barber opposed the
motion in the Alabama Supreme Court and sought discovery
regarding ADOC’s investigation. The Alabama Supreme Court did
not issue its order authorizing Mr. Barber’s execution until May 3.
Mr. Barber was not doing “nothing” between February and May—
he was litigating his case in state court.
When Mr. Barber initiated this action in district court on
May 25, Governor Ivey had not yet set his execution date. Five days
later, she announced that the State would execute Mr. Barber
during the 30-hour time frame beginning July 20, 2023, at
12:00 a.m. Governor Ivey set that date—less than two months
away—despite knowing that Mr. Barber had sued the defendants
(including Governor Ivey) in federal court. Thus, the compressed
timeline is a result of Governor Ivey’s actions rather than of Mr.
“Barber’s own creation.” Id. at 5.
As to the defendants’ argument that Mr. Barber could have
filed his lawsuit at any time after the failed execution of Mr. Smith
on November 17, 2022, they conveniently ignore Governor Ivey’s
order that the State pause its executions while ADOC conducted a
thorough review of its execution protocol and process. Had Mr.
Barber sued the defendants while the investigation was pending,
the defendants surely would have responded that Commissioner
Hamm’s promise to review the State’s lethal-injection protocol and
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processes would remedy the issues that plagued the executions of
Mr. James, Mr. Miller, and Mr. Smith.
Mr. Barber has diligently pursued his Eighth Amendment
claim such that the equities weigh in his favor.
CONCLUSION
Three botched executions in a row are three too many. Each
time, ADOC has insisted that the courts should trust it to get it
right, only to fail again. Mr. Barber has raised a serious and
substantial Eighth Amendment claim that the pattern will continue
to repeat itself. The district court clearly erred, and therefore
abused its discretion, in finding that changes in IV team personnel
and amendments to the procedural rule giving ADOC extra time
to complete executions will stop this pattern without any evidence
of what caused the past problems or how these changes will
address those specific causes. Meanwhile, ADOC has refused to
answer discovery designed to answer these very questions. I
respectfully dissent because I would stay Mr. Barber’s execution
and reverse the district’s denial of a preliminary injunction so that
the State may not moot his claims before ever having to answer for
its extraordinary and systemic failures.