United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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.
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
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.
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
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.
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.
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).
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).
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).
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).
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
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
(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.
Alabama's Lethal Injection Protocol
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.
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 ...