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Grayson v. Dunn

United States District Court, M.D. Alabama, Northern Division

October 16, 2017

CAREY DALE GRAYSON, DEMETRIUS FRAZIER, DAVID LEE ROBERTS, ROBIN DION MYERS, GREGORY HUNT, GEOFFREY TODD WEST, TORREY TWANE McNABB, RONALD BERT SMITH, CHARLES LEE BURTON, ROBERT BRYANT MELSON, JEFFERY LYNN BORDEN, Plaintiffs,
v.
JEFFERSON S. DUNN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Torrey Twane McNabb is scheduled to be executed by the State of Alabama on October 19, 2017, by a three-drug lethal injection protocol, with midazolam as the first drug administered. On October 11, 2017, at 5:52 p.m., he filed an Emergency Motion for Stay of Execution (Doc. # 307) requesting a stay of execution on traditional grounds. The State responded in opposition to McNabb's motion on October 13, 2017 (Doc. # 310). The motion was argued, without additional evidence being offered by either side, on October 13, 2017. At oral argument, McNabb argued in the alternative for an All Writs Act injunction. See 28 U.S.C. § 1651(a).

         Because McNabb's circumstances and procedural posture are not materially different from those of Plaintiff Jeffery Lynn Borden, whose execution was stayed last week (see Doc. # 302), and in view of the Eleventh Circuit's mandates and expressed view of an All Writs Act injunction, McNabb's motion for a stay of execution will be GRANTED as an All Writs Act injunction.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The factual background and procedural history of this case have been thoroughly recounted in the prior opinions of this court and the Eleventh Circuit Court of Appeals. Following is a brief summary relevant to this opinion.

         McNabb is an Alabama inmate sentenced to death. His execution is scheduled for Thursday, October 19, 2017, at 6:00 p.m., Central Daylight Time. On April 19, 2016, McNabb filed a complaint under 42 U.S.C. § 1983 challenging the constitutionality of Alabama's method-of-execution under the First, Eighth, and Fourteenth Amendments to the United States Constitution. See McNabb v. Dunn, No. 2:16-cv-0284-WKW (M.D. Ala. 2016) (Doc. # 1). Because McNabb's complaint contained claims and factual allegations virtually identical to other cases that collectively have been styled the Midazolam Litigation, his case was consolidated with a group of cases in the Midazolam Litigation.[1] See Grayson, et al. v. Dunn, No. 2:12-cv-0316-WKW (M.D. Ala. 2012). On March 31, 2017, this court granted Defendants' Rule 12(b)(6) motion and dismissed the complaints filed by McNabb and his co-plaintiffs, Burton, Melson, West, and Borden. (Doc. # 240.)

         Plaintiffs appealed. On September 6, 2017, the Eleventh Circuit reversed the dismissal and remanded for further proceedings, holding that, “[b]ecause the Complaint alleges facts that, if proven true, would satisfy both prongs of the Baze standard, we hold that the District Court erred in concluding that Appellants' claim was time-barred.”[2] Burton v. Warden, No. 17-11536, slip op. at 24 (11th Cir. Sept. 6, 2017). The mandate issued October 5, 2017. (Docs. # 293, 299.)

         Prior to issuance of the mandate, on September 15, 2017, Borden and McNabb each filed an emergency motion in the Eleventh Circuit to stay their executions scheduled for October 5 and October 19, respectively. On September 29, 2017, the Eleventh Circuit granted Borden's emergency motion to stay his execution, rather than require Borden to seek relief in the district court. The Eleventh Circuit reasoned that, because his scheduled execution was to occur the same date the mandate was to issue, the district court would not have time to consider a motion to stay.[3]

         However, the Eleventh Circuit denied McNabb's emergency motion to stay his execution because he would have time between issuance of the mandate on October 5 and his execution date, October 19, to seek relief in the district court and obtain a ruling. He did that, and this is the ruling.

         The Circuit Court went further in its order denying McNabb a stay of execution, however:

If Mr. McNabb presents the District Court with an All Writs Act injunction request, he “must simply point to some ongoing proceeding, or some past order or judgment, the integrity of which is being threatened by someone else's action or behavior.” Id. at 1099-1100. In our view he clearly could meet this requirement, as his impending execution would directly threaten the District Court's resolution of his § 1983 claim.

Burton v. Warden, No. 17-11536, slip op. at 5 (11th Cir. Sept. 29, 2017) (emphasis added).

         The foregoing reveals two differences between McNabb's circumstances and those of Borden last week. First, Borden's mandate and execution date were scheduled for the same day, leaving essentially no time for the district court to consider his motion to stay execution; McNabb had 14 days between his mandate and execution. Second, the Circuit said that McNabb would be entitled to an All Writs Act injunction under these circumstances. That finding, or directive, or holding, has not been disturbed. Otherwise, the circumstances of Borden and McNabb are identical; the issues match perfectly; and the Eleventh Circuit has mandated litigation on the merits of those issues. Borden was granted an injunction by this court staying his execution, and the State did not appeal. Borden and McNabb thus are very similarly situated legally.

         II. STANDARD OF REVIEW

         This opinion addresses solely McNabb's motion to stay his execution, under traditional ...


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