United States District Court, S.D. Alabama, Southern Division
K. DUBOSE, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on "Plaintiff's Emergency
Motion for a Preliminary Injunction, or in the Alternative,
Relief under Fed.R.Civ.P. 60(b)(6)" (Doc. 45); and the
Defendants' Response (Doc 47). Price is a death row
inmate scheduled for execution on April 11, 2019 at 6:00 p.m.
C.S.T. at the Holman Correctional Facility.
April 5, 2019, the Court denied Price's cross-motion for
summary judgment and emergency motion for preliminary
injunction/stay of execution. (Doc. 32). That same day, Price
filed a Fed.R.Civ.P. Rule 60(b)(6) motion to reconsider and
renewed emergency motion for preliminary injunction/entry of
a stay of execution. (Doc. 33, 34). On April 6, 2019, the
Court denied Price's motion (Doc. 35), and later that day
Price appealed the ruling to the Eleventh Circuit. (Docs. 36,
37). On April 10, 2019, the Eleventh Circuit issued its
Judgment/Order, affirming this Court's ruling. (Doc.
The Eleventh Circuit held as follows:
…After careful consideration, we affirm the district
court's denial of Price's Cross-Motion for Summary
Judgment as well as its denial of Price's original and
renewed motions for preliminary injunction. We also deny
Price's motion for a stay of execution because he cannot
show a substantial likelihood of success on his petition.
…After careful consideration, we conclude that the
district court did not err when it denied Price's
Cross-Motion for Summary Judgment, although our basis for
affirmance differs from the grounds set forth by the district
court. We further find that the district court did not abuse
its discretion when it denied Price's initial and renewed
motions for preliminary injunction in which he sought a stay
of execution. Finally, we deny Price's motion for stay of
execution because he has not satisfied the requirements for
such a stay
(Id. at 2, 8).
On April 10, 2019, Price filed the present emergency motion.
Price contends as follows:
The Eleventh Circuit confirmed yesterday that, based on the
district court record as of April 6th, Mr. Price had
demonstrated a substantial likelihood of showing that
nitrogen hypoxia is an “available” method of
execution that the State could use relatively easily and
reasonably quickly on Mr. Price as an alternative to the
midazolam lethal injection protocol that will cause him
severe pain and needless suffering. Price v.
Commissioner, No. 19-11268 (11th Cir. Apr. 10, 2019),
slip op. at 15. In nevertheless holding that Mr. Price had
not shown an entitlement to a preliminary injunction staying
his execution by lethal injection, the Eleventh Circuit held
that the evidentiary record was insufficient on a single
discrete factual issue-whether execution by nitrogen hypoxia
would be essentially painless for Mr. Price. Id. at
22-25. Specifically, the Eleventh Circuit held that the East
Central University report that Mr. Price had submitted-a
report in which the authors concluded that nitrogen hypoxia
causes brief euphoria and rapid loss of consciousness, but
not any significant pain-was not sufficiently reliable
because it was a preliminary draft “stamped with the
words ‘Do Not Cite.'” Id. at 24.
Mr. Price can easily fill the evidentiary gap that the
Eleventh Circuit flagged. He therefore respectfully submits
this new motion, once again seeking a preliminary injunction
or, in the alternative, relief under Fed.R.Civ.P. 60(b)(6).
This motion is accompanied by the evidence that the Eleventh
Circuit believed to be lacking. Mr. Price requests that the
Court act on this motion before his execution today at 6:00PM
In support this motion, Mr. Price hereby incorporates the
evidence and prior memoranda of law he submitted in support
of his prior motions for a preliminary injunction, and
supplements the evidentiary record with the following new
evidence: (1) a final version of the East Central University
Report, which concludes that “[t]here is no evidence to
indicate any substantial physical discomfort during”
execution by nitrogen hypoxia, see Affidavit of Aaron M.
Katz, Exhibit A; (2) the affidavit of Professor Christine
Pappas, one of the authors of the East Central University
Report, see id., Exhibit B; (3) the affidavit of Dr.
Joel B. Zivot, Associate Professor of Anesthesiology and
Surgery at Emory University School of Medicine, see
Exhibit C; and (4) the affidavit of Dr. Mark J. S. Heath,
Assistant Professor of Clinical Anesthesiology at Columbia
University Medical Center, see Exhibit D. These
items of evidence clearly demonstrate what the State did not
contest in the district court or on appeal, which is that an
execution carried out through appropriately implemented
nitrogen hypoxia will not cause Mr. Price any significant
(Doc. 45 at 1-2).
the Eleventh Circuit has issued its ruling, affirming this
Court's decision on appeal, it has yet to issue the
mandate. However, as Price has presented a new motion for
preliminary injunction accompanied by new evidence, the court
may proceed. Piambino v. Bailey, 757 F.2d 1112,
1119-20 (11th Cir. 1985) (Although the trial court is free to
address, as a matter of first impression, those issues not
disposed of on appeal, . . . it is bound to follow the
appellate court's holdings, both expressed and implied.).
State argues that the Court does not have jurisdiction
because Price has filed a writ of certiorari in the U.S.
Supreme Court. However, the “mere filing of a petition
for certiorari with the Supreme Court neither stops the
mandate from issuing nor stops the case from proceeding in
the district court. A litigant desiring such cessation must
seek and obtain a stay.” United States v.
Sears, 411 F.3d 1240, 1242 (11th Cir. 2005).
Rule 60(b)(1) and Rule 60(b)(6)
relies on Rule 60(b)(1) and Rule 60(b)(6) for
purposes of the present motion to argue that this Court can
amend its April 5, 2019 order denying his injunctive request,
on the basis of new evidence he has now submitted. Rule 60(b)
provides, in relevant part, that “the court may relieve
a party or its legal representative from a final judgment,
order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect;….or (6)
any other reason that justifies relief.” Fed.R.Civ.P.
Rule 60(b). For Rule 60(b)(1), as explained in United
States v. Real Property Known as 6556 Skyline Dr., Delray
Beach, FL, 33446, 2016 WL 320089, *2 (S.D. Fla. Jan. 27,
To establish mistake, inadvertence, or excusable neglect, a
defaulting party must show that: (1) it had a meritorious
defense that might have affected the outcome; (2) granting
the motion would not result in prejudice to the
non-defaulting party; and (3) a good reason existed for
failing to reply to the complaint. See Branch Banking
& Trust v. Maxwell, 512 Fed.Appx. 1010…(11th
Cir. 2013); In re Worldwide Web Sys., Inc., 328 F.3d
1291, 1295 (11th Cir. 2003)…..Further, under Rule
60(b), the desirability for order and predictability in the
judicial process speaks for caution in the reopening of
judgments. See Griffin v. SwimTech Corp., 722 F.2d
677, 679-80 (11th Cir. 1984).
Rule 60(b)(6) is the "catch-all" provision,
providing for relief from and order or judgment for
“any other reason that justifies relief.” To
satisfy Rule 60(b)(6) Price “must demonstrate
‘that the circumstances are sufficiently extraordinary
to warrant relief. Even then, whether to grant the requested
relief is...a matter for the district court's sound
discretion.'” Grant v. Pottinger-Gibson,
2018 WL 834895, *3 (11th Cir. Feb. 13, 2018)
(quoting Toole v. Baxter Healthcare Corp., 235 F.3d
1307, 1317 (11th Cir. 2000) (omission in original)
(internal quotation marks omitted)). The party seeking such
remedy beards the burden of showing that absent such relief,
extreme and unexpected hardship will result. Griffin v.
Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984)
(citation omitted). "That a grant of a Rule 60(b)(6)
motion 'might have been permissible or warranted' is
not enough: instead, the denial of the motion 'must have
been sufficiently unwarranted as to amount to an abuse of
discretion.' … In other words, a party seeking
relief bears a heavy burden of demonstrating 'a
justification so compelling that the district court was
required to vacate its order.'…" Earley
v. Liberty Life Assur. Co. of Boston, 671 Fed.Appx.
1037, 1038 (11th Cir. 2016) (citations omitted).
In sum, "relief under Rule 60(b)(6) 'is an
extraordinary remedy which may be invoked only upon a showing
of exceptional circumstances.'" Hisey v. Qualtek
USA, LLC, 753 Fed.Appx. 698, 702 (11th Cir.
Rule 60(b)(1) and Rule 60(b)(6) "are mutually
exclusive" meaning that "[a] court cannot grant
relief under (b)(6) for any reason which the court could
consider under (b)(1).” Solaroll Shade &
Shutter Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130,
1133 (11th Cir. 1986). Price's motion
"offers no separate reasons of note for relief under
Rule 60(b)(6) that…[he] does not offer for Rule
60(b)(1). This lack of distinction is fatal to
the…claim under Rule 60(b)(6)." United States