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Hamm v. Dunn

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

February 20, 2018

DOYLE LEE HAMM, Plaintiff,



         As Chief Justice Roberts and Justice Alito have written, “because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.'” Glossip v. Gross, 135 S.Ct. 2726, 2732-33 (2015) (Alito, J.) (quoting Baze v. Rees, 553 U.S. 35, 47 (2008) (Roberts, C.J.) (plurality opinion)). Guided by that principle, the court has taken steps to ensure, as far as possible, that the execution of Doyle Lee Hamm meets constitutional standards.

         Now, the court must rule on Plaintiff Doyle Hamm's request for a preliminary injunction enjoining Defendants from executing him using intravenous lethal injection. Mr. Hamm bears the burden of showing a substantial likelihood of success on the merits of his claim that Alabama's method of execution, as applied to him, “presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” Glossip, 135 S.Ct. at 2737 (quotation marks omitted). If Mr. Hamm can make that showing, then he must identify “an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Id. (quotation marks and alterations omitted).

         Mr. Hamm contends that his current medical condition, caused by years of intravenous drug use, hepatitis C, and untreated lymphoma, renders his veins severely compromised, and that any attempt to insert an intravenous catheter into his peripheral veins could result in numerous painful sticks and/or infiltration of the lethal drugs into the surrounding tissue, causing a painful and gruesome death. And he asserts that he suffers from untreated lymphadenopathy, which would hinder Alabama's alternative method of placing a central line into one of the major veins located in his groin, chest, or neck. He seeks, instead, to have the State execute him by “oral injection” using the drugs and a variation on the procedure set out in Oregon's Death with Dignity Act. See Or. Rev. Stat. §§ 127.800-127.897.

         On February 6, 2018, this court denied Defendants' motion for summary judgment on Mr. Hamm's amended complaint and stayed his 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 at obtaining central line access.” (Doc. 31 at 2). Defendants appealed this court's order and on February 13, 2018, the Eleventh Circuit vacated the stay, holding that this court had not made “sufficient factual findings to establish a significant possibility of success on the merits.” (Doc. 38 at 8). The Court directed this court “to immediately appoint an independent medical examiner and schedule an independent medical examination, and to thereafter make any concomitant factual findings-pursuant to a hearing or otherwise-by no later than Tuesday, February 20, 2018, at 5:00 p.m. Central Standard Time.” (Id. at 11-12).

         On February 15, 2018, the court appointed a physician as its independent medical examiner and ordered him to conduct a medical examination of Mr. Hamm, specifically the condition of his peripheral and central veins.[1] (Doc. 48). The court ordered the physician to report to the court the results of that examination and to advise the court on the standard of care used to place a central line. (Id.). The physician conducted the examination on the same day, and attorneys from both sides observed the examination. The physician's examination included viewing Mr. Hamm's veins, palpating them, and using an ultrasound to view the internal veins, organs, and lymph nodes. See Appendix A (Medical Report). As the court had requested, the physician made an oral report to the court in the evening of February 15, shortly after finishing the examination.

         The medical expert reported that Mr. Hamm has numerous accessible and usable veins in both his upper and lower extremities. But he stated that the peripheral veins in Mr. Hamm's upper extremities, while accessible, are smaller and more difficult to access. The veins in Mr. Hamm's lower extremities-particularly from his knees down-are palpable, visible, and easily accessible, and further, the accessible veins in Mr. Hamm's lower extremities are of sufficient size to accept a catheter and substantial flow of liquid. Although he observed nodes in Mr. Hamm's groin area, he found that they would not impede access to the femoral vein. He commented that Mr. Hamm has “zero lymphadenopathy.” He concluded that all of Mr. Hamm's central and deep veins are clear. In short, the physician found no likely problems obtaining venous access on Mr. Hamm, particularly using the veins in his lower extremities. Because of the results of the examination, the court did not inquire as to the standard of care for starting a central line IV.

         The next day, February 16, the court held a conference with the parties and counsel, which had originally been scheduled to have testimony concerning the Alabama Department of Corrections' lethal injection procedures. The court began the conference by relaying the oral report from the court's medical expert. The court advised the parties that the medical expert's report resolved the concerns regarding the status of Mr. Hamm's veins and lymphadenopathy. The court asked if Defendants would stipulate they would not attempt peripheral venous access in Mr. Hamm's upper extremities; they agreed to so stipulate.

         The court then found that the medical evidence negated any need to delve further into Alabama's lethal injection protocol. Nothing about Mr. Hamm's condition, especially because of Defendants' stipulation, “presents a risk that [Alabama's current lethal injection protocol as applied to him] is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” Glossip, 135 S.Ct. at 2737 (quotation marks omitted).

         And given the medical expert's report that Mr. Hamm is not experiencing lymphadenopathy, the court determined that further inquiry into the procedure for obtaining central venous access would convert his as-applied challenge into a facial challenge to the lethal injection protocol. As the court found in its memorandum opinion on Defendants' motion for summary judgment, a facial challenge to Alabama's lethal injection protocol would be time-barred because such a claim accrued in 2002 and the statute of limitations on it expired in 2004. (See Doc. 30 at 13).

         Mr. Hamm's counsel stated numerous objections on the record, which the court overruled.

         The court promised counsel that it would forward the medical expert's report to them as soon as it received it. On February 19, 2018, the physician sent his written report to the court, and the court forwarded it to the parties.[2] The written report elaborates on the physician's oral report to the court with more technical analysis of Mr. Hamm's veins. The written report determines that Mr. Hamm has accessible and usable veins in his upper and lower extremities. But it further determines that the veins in Mr. Hamm's upper extremities would be accessible only by an advanced practitioner, such as a CRNA, PA, or MD, using an ultrasound. See Appendix A at 14.

         The written report concludes:

         Mr. Hamm has accessible peripheral veins in the ...

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