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Price v. Dunn

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

April 11, 2019

JEFFERSON S. DUNN, et al., Defendants.



         This 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.

         I. Background

         On 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. 44).[1] 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 CDT.
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 physical pain.

(Doc. 45 at 1-2).

         II. Jurisdiction

         While 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.).

         The 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).

         III. Rule 60(b)(1) and Rule 60(b)(6)

         Price 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, 2016):

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. 2018).

         However, 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 ...

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