United States District Court, M.D. Alabama, Northern Division
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,
JEFFERSON S. DUNN, et al., Defendants.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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. 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. #
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.” Burton v. Warden, No. 17-11536,
slip op. at 24 (11th Cir. Sept. 6, 2017). The mandate issued
October 5, 2017. (Docs. # 293, 299.)
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.
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.
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).
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.
STANDARD OF REVIEW
opinion addresses solely McNabb's motion to stay his
execution, under traditional ...