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Hamm v. Dunn

United States District Court, N.D. Alabama, Southern Division

February 6, 2018

DOYLE LEE HAMM, Plaintiff,



         Doyle Hamm challenges the constitutionality of Alabama's method of execution, not generally, but as applied to him. (Doc. 15 at 1-2). As the Supreme Court of the United States has repeatedly said, “because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out.” Glossip v. Gross, 135 S.Ct. 2726, 2732 (2015) (quotation marks omitted). But the Eighth Amendment forbids cruel and unusual punishment, creating tension between imposing a constitutional death sentence and carrying out the death sentence in a constitutional manner.

         In this country, the chosen method of execution has evolved as social mores have changed. See Baze v. Rees, 553 U.S. 35, 40-41 (2008) (plurality opinion) (“As is true with respect to each of [the thirty-five States that impose capital punishment] and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.”). Today, death penalty advocates view lethal injection, the most prevalent method of capital punishment, as a more humane means of execution than its predecessors. See id.

         Mr. Hamm contends that, as applied to him, Alabama's method of execution- intravenous lethal injection-crosses the line from a constitutional method of fulfilling his death sentence to one that would cause undue and exceptional pain and suffering. He asserts that his current medical condition, caused by years of intravenous drug use, hepatitis C, and untreated lymphoma, renders his veins severely compromised; he contends that he does not have peripheral veins suitable to handle the size of intravenous catheter required to properly administer the lethal drugs. If his current medical condition includes compromised peripheral veins, lymphoma untreated for three years, and lymphadenopathy, as he and his medical experts believe to be true, attempts to insert the intravenous catheter would subject him to unlimited and repeated needle sticks; the injection of fluid could “blow out” his veins with infiltration of drugs into the surrounding tissue; and efforts to place a central line could be hindered by enlarged lymph nodes creating a higher risk of puncturing a central artery-all resulting in severe and unnecessary pain.

         To avoid such a gruesome scenario, Mr. Hamm suggests an alternative method of lethal injection: an “oral injection” of death-causing drug or drugs. He seeks not a total injunction prohibiting his execution, but an injunction of execution by intravenous injection.

         Defendants, who control Mr. Hamm's access to medical treatment and evaluation, argue that Mr. Hamm has not presented any medical proof that his condition has deteriorated as he asserts. Further, they argue that he has not proven that his proposed alternative method of execution is appropriate or available. As a result, they seek summary judgment.

         Too many unanswered questions in the current record preclude a determination of the issues before the court. The heart of this case centers on Mr. Hamm's current medical status, particularly the condition of his peripheral veins, lymphoma, and potential lymphadenopathy. Because Defendants control his access to medical care, Mr. Hamm cannot be faulted for being unable to present a definitive evaluation to the court. Without knowledge of his current medical condition, the court cannot answer the many questions raised by Mr. Hamm's request for an injunction or by Defendants' motion for summary judgment.

         The looming February 22, 2018, execution date leaves insufficient time to resolve these unknowns. But Mr. Hamm has provided enough evidence to create genuine issues of material fact about his as-applied claim. As a result, based on the record as it currently exists, Mr. Hamm has shown a substantial likelihood of success on the merits, and the court finds that the execution date must be stayed pending an independent medical examination of Mr. Hamm.

         After allowing testimony and argument at a January 31, 2018 hearing, the court announced its decisions: (1) to deny summary judgment as to Defendants' timeliness challenge of Mr. Hamm's as-applied claim because genuine issues of material fact exist about when his cause of action accrued; (2) to deny Defendants' motion for summary judgment as to the merits of Mr. Hamm's as-applied claim; (3) to deny as premature Defendants' motion for summary judgment as to the merits of Mr. Hamm's other Eighth Amendment claim; and (4) to grant a temporary and limited stay of execution. The court now memorializes those rulings in a written opinion and order.

         First, the court WILL DENY Defendants' motion for summary judgment as to the timeliness of Mr. Hamm's as-applied claim. The court finds that genuine issues of material fact exist about whether and when Mr. Hamm's medical condition worsened to a degree that gave rise to his as-applied challenge to Alabama's method of execution, triggering Alabama's two-year statute of limitations. The court also finds that the equitable doctrine of laches does not bar Mr. Hamm's complaint because he reasonably sought relief in the Alabama Supreme Court before filing his federal lawsuit.

         Second, the court WILL DENY Defendants' motion for summary judgment as to the merits of Mr. Hamm's as-applied claim because he has created genuine issues of material fact about whether Alabama's method of execution is sure or very likely to cause him needless suffering and whether a feasible, readily implemented alternative method of execution exists that would significantly reduce a substantial risk of severe pain.

         Third, the court WILL DENY AS PREMATURE Defendants' motion for summary judgment as to the merits of Mr. Hamm's other Eighth Amendment claim because the parties have not yet had an opportunity to engage in discovery about that claim.

         Fourth, the court RESERVES RULING on Mr. Hamm's request for a preliminary injunction enjoining Defendants from executing him by intravenous injection, because the record is too sparse for the court to decide whether, as applied to Mr. Hamm, execution by intravenous injection would violate his right to be free from cruel and unusual punishment. But the court WILL STAY the execution for the purpose of obtaining an independent medical examination and opinion concerning the current state of Mr. Hamm's lymphoma, the number and quality of peripheral venous access, and whether any lymphadenopathy would affect efforts to obtain central line access. The results of that examination will determine whether the stay should be extended for discovery on other issues raised by Mr. Hamm's amended complaint.


         This matter is before the court on Plaintiff's request for a preliminary injunction (doc. 15 at 44) and Defendants' renewed motion for summary judgment (doc. 16).

         In 1987, Mr. Hamm was convicted in Alabama of robbery-murder and sentenced to death. See Hamm v. Comm'r, Ala. Dep't of Corr., 620 F. App'x 752 (11th Cir. 2015). In 1990, the Alabama Supreme Court affirmed his conviction and sentence, Ex parte Hamm, 564 So.2d 469 (Ala. 1990), and the United States Supreme Court denied certiorari. Hamm v. Alabama, 498 U.S. 1008 (1990). After exhausting his state collateral attacks in 2005, Mr. Hamm sought federal habeas relief. Hamm, 620 F. App'x at 756-58. In 2013, this court denied him habeas relief, and in 2015, the Eleventh Circuit affirmed. Id. at 758-59. On October 3, 2016, the United States Supreme Court denied certiorari. Hamm v. Allen, 137 S.Ct. 39 (2016).

         On June 23, 2017, the State moved the Alabama Supreme Court to set Mr. Hamm's execution date. (Doc. 12-1). On August 8, 2017, on the Alabama Supreme Court's order, Mr. Hamm filed an answer requesting that the court allow Dr. Mark Heath to examine Mr. Hamm before deciding the State's motion to set an execution date. (Doc. 12-2). Dr. Heath completed that examination on September 23, 2017, and on December 13, 2017, the Alabama Supreme Court entered an order setting Mr. Hamm's execution for February 22, 2018. (Doc. 15-1 at 2; Doc. 14-17). On the same day that the Alabama Supreme Court entered that order- December 13, 2017-Mr. Hamm filed his initial § 1983 complaint. (Doc. 1).

         Because Mr. Hamm's complaint contained a request for preliminary injunctive relief, the court immediately set a hearing. (Doc. 3). Before that hearing, Defendants filed a motion to dismiss or, in the alternative, for summary judgment on Mr. Hamm's complaint. (Doc. 12). The court construed the entire motion as one for summary judgment and notified Mr. Hamm of the need to submit evidence in opposition to that motion. (Doc. 13). Mr. Hamm filed a response and an amended complaint, which reiterated his as-applied challenge and raised an Eighth Amendment challenge to his treatment during his time on death row. (Doc. 15). Defendants renewed their motion for summary judgment, and the parties completed briefing and the submission of evidence on an expedited schedule. (Docs. 16, 17).


         1. Medical Terminology

         Before discussing the disputed and undisputed facts, the court must set out some medical terms. Under Alabama's lethal injection protocol, lethal injection is performed by “peripheral venous access” or, if peripheral venous access is not possible, by “central line placement.” Peripheral venous access requires insertion of a catheter into one of the peripheral veins in the arms, hands, legs, or feet. Central line placement is insertion of a catheter into the jugular vein in the neck, the subclavian vein near the clavicle, or the femoral vein in the groin. According to Dr. Heath, the anesthesiologist who testified on Mr. Hamm's behalf, to obtain a central line, the practitioner must apply local anesthesia; insert a small needle into the vein; thread a wire through the needle into the vein; withdraw the needle while leaving the wire in place; cut a small opening, large enough to allow the catheter to enter the body, in the patient's flesh near the entry place for the wire; thread the catheter along the wire and into the vein; withdraw the wire; and suture the skin closed over the catheter. In the absence of an emergency, the practitioner should use an ultrasound to monitor the placement of the needle, the wire, and the catheter.

         Another set of important medical terms is lymphoma and lymphadenopathy. Lymphoma is a blood cancer, and lymphadenopathy is enlargement of lymph nodes. A number of things can cause lymphadenopathy, including lymphoma and “less common illnesses.” Lymphadenopathy, Taber's Medical Dictionary Online,; (Doc. 15-1 at 4). Dr. Heath attests that lymphoma is a progressive disease, meaning that a past diagnosis of lymphoma can indicate “significant involvement and enlargement of lymph nodes in other areas of [Mr. Hamm's] body, including his neck, chest, and groin.” (Doc. 15-1 at 4). According to Dr. Heath's testimony, lymphadenopathy can greatly complicate central line access because the largest clusters of lymph nodes are located around the jugular, femoral, and subclavian veins. Swelling of those lymph nodes can distort the tissues surrounding the veins, making accessing those veins more difficult.

         2. Alabama's Lethal Injection Protocol

         Alabama's confidential, sealed lethal injection protocol provides that, as soon as possible after arrival at Holman Correctional Facility, where all Alabama executions occur, a physician will make an assessment of the inmate's vein structure. An IV team will also view the inmate's veins before the execution. Aside from non-medical staff, two trained medical professionals, usually Emergency Medical Technicians (“EMTs”), and, as needed, one physician, are part of the IV team.

         On the day of the execution, two IV lines will be placed in the inmate's veins. If the IV team cannot access peripheral veins, medical personnel will use a central line to obtain intravenous access. After two team members check the IV lines, one leaves the execution chamber and gives the Warden a signal to proceed; one team member remains in the chamber at the inmate's left side. The Warden administers the lethal injection solution ...

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