1

CLARENCE EDWARD HILL,

Petitioner,

v. CASE NO. 4:06cv32-SPM

JAMES R. MCDONOUGH, JR., Secretary,

Florida Dept. of Corrections, et al.

in his official capacity,

Respondent.

/

RESPONSE TO MOTION FOR RECONSIDERATION OF ORDER DISMISSING

COMPLAINT AND RESPONSE AND MEMORANDUM OF LAW TO RENEWED REQUEST

FOR STAY OR INJUNCTION

COMES NOW Respondent, by and through undersigned counsel, and

responds to Hill’s Motion for Reconsideration of Order dated

September 1, 2006, Dismissing Complaint, presumably filed pursuant

to Fed.R.Civ.P. 59(e), and response to renewed request for stay or

injunction and would show:

1. Hill seeks reconsideration of this Court’s Order

dismissing his action brought pursuant to 42 U.S.C. §1983,

asserting that the Court “misapprehended and mistaken several

issues of law and fact”, specifically that he has not been

“dilatory”, and that this Court “has conflated and confused the

legal significance of dilatoriness and the corresponding analyses

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 1 of 27

which he seeks reconsideration.

2

applicable to the motion to dismiss and a stay of execution.” He

again reargues that he is entitled to injunctive relief based on

the identical facts and law submitted previously.

2. Respondent specifically denies all allegations set forth

in Hill’s motion for reconsideration, and demands strict proof of

each, since the burden rests with the losing party to assert a

basis for further consideration. Respondent has never waived any

possible defenses under the applicable civil rules and would

3. A “post-judgment motion” may be treated as either a

Fed.R.Civ.P. 59 or 60 motion, regardless of how the motion is

styled by the movant, depending on the type of relief sought. See

motion that is filed within 10 business days of the entry of

judgment and that asks for reconsideration of matters encompassed

in the judgment, such as in the instant case, is normally

considered a motion under Rule 59(e). See Finch v. City of Vernon,

4. The Eleventh Circuit has held that “[T]he only grounds for

granting a Rule 59(e) motion are newly-discovered evidence or

manifest errors of law or fact." In re Kellogg, 197 F.3d 1116,

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 2 of 27

3

The decision whether to alter or amend a judgment

pursuant to Rule 59(e) is "committed to the sound

discretion of the district judge." American Home

Assurance Co. v. Glenn Estess & Assocs., 763 F.2d 1237,

____________________

discretion is a "difficult" one. See Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 408, 110 S. Ct. 2447, 2462,

110 L. Ed. 2d 359 (1990). We have stated that "an abuse

of discretion occurs if the judge fails to apply the

proper legal standard or to follow proper procedures in

making the determination, or ... [makes] findings of fact

that are clearly erroneous." Hatcher v. Miller (In re

"The function of a motion to alter or amend a judgment is

not to serve as a vehicle to relitigate old matters or

present the case under a new legal theory ... [or] to

give the moving party another 'bite at the apple' by

permitting the arguing of issues and procedures that

could and should have been raised prior to judgment." In

re Halko, 203 B.R. 668, 671-72 (Bankr.N.D.Ill.1996)

(internal quotation marks and citations omitted). Thus,

it is not an abuse of the court's discretion to deny a

Rule 59(e) motion that requests an amendment that relates

to a matter "that could have been raised before the

judgment was entered." Bannister v. Armontrout, 4 F.3d

will not prevail on a Rule 59(e) motion that introduces

previously unsubmitted evidence absent a showing that the

evidence was unavailable at the time of the judgment.

See Mays v. United States Postal Serv., 122 F.3d 43, 46

Additionally, “[m]otions for reconsideration should not be used to

raise legal arguments which could and should have been made before

the judgment was issued." Sanderlin v. Seminole Tribe of Florida,

not identified any meritorious errors of law or fact. Hill's

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 3 of 27

circumstances: (1) mistake, inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence which by due diligence could

not have been discovered in time to move for a new trial under Rule

59(b); (3) fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of an adverse

party; (4) the judgment is void; (5) the judgment has been

satisfied, released, or discharged, or a prior judgment upon which

it is based has been reversed or otherwise vacated, or it is no

longer equitable that the judgment should have prospective

application; or (6) any other reason justifying relief from the

operation of the judgment.

circumstances exists in which Hill is entitled to reopen his

1998).. A movant under Rule 60(b) fails to demonstrate entitlement

to relief under any subsection when he simply rephrases his prior

Cir. 2004). Hill merely reiterates the claims he made in his

complaint in his motion for reconsideration; accordingly, he has

4

factual and legal arguments do not present any “newly discovered"

or “previously unavailable" evidence. Therefore Hill's Rule 59(e)

motion must be denied.

5. The arguments and allegations in Hill’s motion for

reconsideration mirror those in his original complaint, which this

Court has already considered and dismissed. A district court will

not have abused its discretion in denying any motion for

1984), the denial of a Rule 60(b) motion is appropriate where a

movant “continues to relitigate the same issue(s) that the court

already decided”, regardless of whether Hill's motion is construed

as one pursuant to Federal Rule of Civil Procedure 59(e), or Rule

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 4 of 27

not demonstrated entitlement to relief under any of the subsections

of Rule 60(b).

5

6. The Court, in dismissing Hill’s §1983 complaint, found not

only had Hill provided no basis for not litigating his complaint

timely, but also found the very facts supporting his

reconsideration were available to Hill. The Court observed:

In addition to the Lancet study, Hill contends in his

amended complaint that ‘new and critical’ information has

surfaced since his original complaint. This information

is recent case law from other federal jurisdictions in

which evidentiary hearings were held and discovery

conducted with regard to the various states' lethal

injection protocols and procedures. Hill cites Taylor v.

Crawford, 2006 WL 1779035 (W.D. Mo. Jun. 26, 2006),

2006), and Cooey v. Taft, 430 F.Supp.2d 702 (Apr. 28,

2006). These cases are not binding on this Court and

they can be distinguished significantly from Hill's case.

In each of these cases, the inmate brought his §1983

action either prior to having an execution date set or in

a timely enough manner that the court was able to

Cooey and Morales specifically found that the inmates

courts were not bound by the precedent which this Court

must follow. Hill’s unnecessary delay in bringing this

action forecloses the relief which he seeks.

______________________

702 (Apr. 28, 2006), one of the plaintiffs was allowed to

intervene in the §1983 action prior to his execution date

being set; thus the district court granted an injunction

staying his execution once scheduled. The court

specifically found that the plaintiff had not

unnecessarily delayed in bringing an action under §1983.

The court stated, “. . . Plaintiff [Jeffery] Hill was not

within days of his execution. He did not sit on his

laurels. He did not wait until the State had set or even

requested an execution date.” See id, at 706.

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 5 of 27

injection in the USA are flawed. Failures in protocol design,

participation of doctors in protocol design or execution is

Koniaris et al., Inadequate Anaesthesia in Lethal Injection for

Execution, 365 Lancet 1412, 1414 (2005)(Emphasis added).

brought an identical 42 U.S.C. §1983 action, where the court

rejected Dr. Lubarsky's THE LANCET paper, Brown v. Crawford, 408

162 L.Ed.2d 310, 125 S.Ct. 2927, 2005 U.S. LEXIS 4806 (June 13,

6

Morales v. Hickman, 438 F.3d 926, 930 (Feb. 19, 2006),

stated “Morales’ diligence allowed the court to more

thoroughly consider the relevant legal and factual issues

that ultimately bore on its conclusion.”

(Order September 1, 2006, p 9-10.)

7. Hill’s complaint has predominantly centered around the

April 2005 research paper in THE LANCET, which “hypothesizes that

this dose may not be administered properly or is possibly being

administered in a way that prevents it from having its intended

effect. See Koniaris et al., supra, at 1413. The study ultimately

concludes that ‘public review of lethal injection is warranted.’

8. Hill had the ability to file his complaint prior to the

date his execution was set, indeed, defendants nationwide were

arguing permutations of THE LANCET article in federal courts,

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 6 of 27

2005). In his dissent, Circuit Judge Bye states that the issue in

Brown “challenges the chemical protocol used by Missouri to carry

out lethal injections. He contends the three-chemical sequence

used by Missouri - sodium pentothal, pancuronium bromide, and

potassium chloride - creates a foreseeable risk of the gratuitous

infliction of unnecessary pain and suffering in violation of the

Eighth Amendment.” Hill all but abandoned any reference to THE

LANCET article by the time he arrived in the United States Supreme

Court on the merits in Hill.

7

9. The Court held in its January 21, 2006, order in Hill,

that:

Plaintiff’s claim of “newly-discovered evidence” is

insufficient to overcome the procedural bar in this case.

Plaintiff cites the Lancet article as conclusive proof

that inmates do feel pain during the lethal injection

procedure. He details the injection process, noting that

sodium pentothal is first administered as an anesthetic,

followed by pancuronium bromide, a paralytic agent which

prevents the inmate from moving or otherwise showing pain

or discomfort. The final chemical to be injected is

potassium chloride, which causes the actual death by

stopping all movement of the heart and suffocating the

inmate. The Lancet researchers found that toxicology

reports in their case studies demonstrated that

insufficient amounts of anesthetic were injected,

permitting the inmates to experience the feelings of

being suffocated and having a heart attack, yet remaining

paralyzed by the pancuronium. While Florida’s procedure

was not examined in the study, Plaintiff argues that

Florida’s practice is “substantially similar” and thus

poses the same risk to inmates.

These exact issues were raised and disposed of in

Robinson, in which the Eleventh Circuit referred to

affidavits in that case addressing “the effects of the

drugs used during lethal injection, how they each cause

pain and suffering, and particularly how the pancuronium

bromide chemical paralyzes the person and masks the pain

and suffering being incurred.” Id. at 1285 n.4. An

additional affidavit “[discussed] how the level of

potassium chloride being used in the lethal injection

context may not cause actual cardiac arrest but may

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 7 of 27

Arizona Independent Redistricting Commission, 366 F. Supp. 2d 887,

908 Arizona DC 2005)(“n19 “While Rule 8(c) of the Federal Rules of

Civil Procedure provides that laches shall be set forth as an

affirmative defense, where the elements of laches are apparent on

the face of a complaint, it may be asserted on a motion to dismiss

8

result in death by suffocation due to lack of oxygen.”

Id.

have discovered these underlying predicates through the

exercise of due diligence. See In re Provenzano, 215

__________________

that

[a]cross the nation, courts have rejected claims that The

Lancet study requires a new evaluation of the

appellant’s motion for a stay of execution despite the

fact that the appellant based his claim under 42 U.S.C.

§1983 in part on The Lancet study at issue here);

Beighler v. State, 839 N.E.2d 691 (Ind. 2005) (finding

The Lancet study was not sufficient to establish “a

reasonable probability that Indiana’s method of execution

violates the federal or state constitution”).

2006 WL at *6.

Order p. 3-6 (Emphasis added).

10. Then, as now, this Court pointed out that Hill offered

“no reason for his delay in bringing this action just days before

his scheduled execution and, if properly before that court, would

have dismissed Hill’s complaint as a successive habeas based on

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 8 of 27

for failure to state a claim upon which relief may be granted)."

Russell v. Thomas, 129 F. Supp. 605, 605-06 (D.C. Cal. 1955); see

also 2 Moore's Federal Practice, §12.34[4][b] (Matthew Bender ed.

2003) (“Dismissal under Rule 12(b)(6) may also be appropriate when

a successful affirmative defense or other bar to relief appears on

the face of the complaint, such as the absolute immunity of a

defendant, claim preclusion, or the statute of limitations.")”. A

laches argument is two pronged -- unnecessary delay and prejudice

-- both extant here. Respondent asserted Hill failed to state a

cause of action upon which relief could be granted.

courts to “protect States from dilatory or speculative suits”, even

under a §1983 lawsuit. Note: In Ex parte Aguilar, 2006 WL 1412666,

*2 (Tex. Cr. App. May 22, 2006)(unpublished)(Cochran, J.,

concurring) the court noted that there are serious problems with

the study including that (1) it is a research letter, which is

“akin to a letter to the editor”, not a peer-reviewed scientific

study; (2) the study was conceived by and based upon data supplied

by the attorney who represented death row inmates which “is hardly

a mark of scientific objectivity”, and (3) the “suggested

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§1983 lawsuit, the Supreme Court, in Hill, did not address the

“equities and merits of Hill’s underlying action” because they were

not before that Court. To the extent that Hill argues all portions

of this Court’s January 21, 2006, Order are no longer valid, such

a conclusion is in error. Moreover, this Court’s superseding Order

of September 1, 2006, provides a valid basis to again conclude that

Hill was too long in seeking §1983 relief.

11. Unnecessary delays in bringing a claim about Florida’s

lethal injection procedures does not entitle a defendant to

“injunctive relief in a last minute §1983 action”, Gomez v. United

States Dist. Court for N. Dist. of Cal, 503 U.S. 633 (1992), and

Nelson v. Campbell, supra. This case raises no true issues of

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 9 of 27

conclusion is so extraordinary that it challenges simple logic.”).

Indeed, Hill attempts to change the basis for §1983 review to

recent decisions in Morales v. Hackman, 415 F.Supp.2d 1037 (Cal.

Dist. Ct. 2006), and Cooey v. Taft, 430 F.Supp.2d 702 (Ohio Dist

Ct. 2006), set forth in footnote 1 of his August 25, 2006, Motion

for Immediate Remand [filed in the Eleventh Circuit and denied as

moot on August 29, 2006] are clear evidence that any §1983 action

is dilatory and dismissible as such. The speculation as to the

impact of the three drugs used in Florida’s execution are no

different than the drugs used in Texas or North Carolina or

Virginia or California, and have always been the potential “subject

of litigation” as a condition of confinement. The fact that THE

LANCET article has found disfavor and has been rejected, and now

courts and rejected previously, does not resurrect an otherwise

untimely §1983. See: Brown v. Livingston, 2006 U.S. App. LEXIS

(2006); Brown v. Beck, supra; Harris v. Johnson, supra; LeGrand v.

Chaney, 470 U.S. 821 (1985), to name a few cases previously

litigating “all manner of permutations” regarding any lethal

injection challenge.

information regarding the three drug cocktail that will be used

during any execution. He bottoms this argument on the fact that he

attempted to secure public records during the state post conviction

litigation and was thwarted because of Florida’s refusal to make an

exception to the public records rule governing last minute

litigation in active warrant cases. In fact, however, he had a

mechanism within which to secure information from the Department of

Corrections through either a grievance procedure or the securing of

public records via Fla.R.Crim.P. 3.853(i) entitled Limitations on

Post-production Request for Additional Records, which permits

exceptions to secure records. He never availed himself of that

rule. Fla.R.Crim.P. 3.852(i) provides a means to secure additional

records which Hill did not do prior to the activation of the

November 29, 2005 warrant. See Tompkins v. State, 872 So.2d 230,

244 (Fla. 2003)(“...although a request for public records under

rule 3.852(h)(3) is contingent upon the signing of a death warrant,

rule 3.852(i) "allows collateral counsel to obtain additional

records at any time if collateral counsel can establish that a

diligent search of the records repository has been made and 'the

additional public records are either relevant to the subject matter

of the postconviction proceeding or are reasonably calculated to

10

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 10 of 27

lead to the discovery of admissible evidence.'" Sims, 753 So. 2d at

70-71 (quoting rule 3.852(i)(1)). Accordingly, Tompkins was not

required to wait until the death warrant was signed to make an

additional public records request, provided he could have made the

required showing under rule 3.852(i).”)

three-chemical lethal injection procedure support a cognizable

claim under §1983; injunctive relief is not warranted if the delays

in filing of a §1983 action for equitable relief are just before a

Cir. 2005), White v. Livingston, __ U.S. __, 126 S.Ct. 601, 163

L.Ed.2d 502 (2005)(affirming the dismissal of White's §1983 action

for injunctive relief and emphasizing that White delayed until the

eleventh hour to file his challenge to the state's lethal injection

with the three chemicals in issue); Cooper v. Rimmer, 379 F.3d

equitable relief in §1983 action challenging state's three-chemical

protocol for execution by lethal injection); Harris v. Johnson, 376

entitled to equitable relief in §1983 action challenging the

state's three-chemical protocol for execution by lethal injection

where he had unnecessarily delayed in bringing his claim); Bieghler

v. Donahue, No. 1:06-cv-00136-LJM-TAB, 2006 U.S. Dist. LEXIS 6751

(S.D. Ind. Jan. 26, 2006) (relying on Nelson and denying TRO and

preliminary injunction in plaintiff's last-minute §1983 action

challenging the state's three-chemical method of lethal injection

and dismissing the §1983 action), stay of execution granted, No.

order), stay of execution vacated, No. 05A684,___ U.S. ___, 126

S.Ct. 1190, 163 L.Ed.2d 1144 (2006).

11

12. The Supreme Court did nothing to disturb the “timeliness”

of any §1983 complaint, therefore Hill’s “lethal injection claim

under §1983”, no matter what appellation given it by the district

court, was properly dismissed, Hill v. McDonough, “After Nelson, a

number of federal courts have invoked their equitable powers to

dismiss suits they saw as speculative or filed too late in the day.

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 11 of 27

12

See, e.g., Hicks v. Taft, 431 F.3d 916 (CA6 2005); White v.

Johnson, 429 F.3d 572 (CA5 2005); Boyd v. Beck, 404 F.Supp. 2d 879

(EDNC 2005).” Hill 126 S.Ct. at 2104.

13. Post Hill, in Alley v. Little, 2006 U.S. App. LEXIS 16605

(CA6 2006), rehearing en banc denied, 2006 U.S. App. LEXIS 16071,

cert. denied, 2006 U.S. LEXIS 5180 (June 27, 2006), the Sixth

Circuit, citing the Supreme Court’s opinion in Hill, held:

The Court noted that federal courts weighing petitioners'

§1983 challenges to lethal injection should continue to

consider various features of a filing when locating the

proper balance of equities. These include "a showing of

a significant possibility of success on the merits" and

the timeliness of the appeal. Timeliness is particularly

relevant when an appeal is brought in the strongly

disfavored circumstance in which its full consideration

would necessitate a stay of execution. Id. at 10 (citing

Barefoot v. Estelle, 463 U.S. 880, 895-96, 103 S.Ct.

3383, 77 L.Ed.2d 1090 (1983), and Nelson, 541 U.S. at

650).

14. And, post Hill, in Lenz v. Johnson, 2006 U.S. Dist. LEXIS

50659 (E.D. Va., July 25, 2006), the Court, the day of Lenz’s

execution, held:

Turning to the facts before the Court, the timing of

Lenz's §1983 Complaint--filed almost exactly one month

before his scheduled execution date--gives rise to the

presumption that Lenz is engaging in disruptive, dilatory

tactics for the sole purpose of unjustifiably delaying

the execution of his death sentence that was imposed

nearly six years ago. In an effort to obfuscate what is

reasonably clear, Lenz argues that he could not have

filed his Complaint earlier, because Defendants are free

to unilaterally alter the lethal injection protocol. As

such, Lenz states that he needed to wait until his

execution date had been officially set. This, of course,

sounds plausible in theory but is purely specious in

reality. The lethal injection protocol in Virginia is no

secret. Courts have discussed it in great detail, see,

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 12 of 27

13

e.g., Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va.

2004), and death row inmates can undoubtedly inform

themselves, through counsel or using other means, of the

material details in advance of the [fifteen-day statutory

cut-off for selecting a method of execution. It is

disingenuous at best to represent that Lenz was prevented

from making an informed decision before the decision was

made for him by default.

Lenz, 2006 U.S. Dist. LEXIS at * 22-23. (Opinion attached). See

also Reid v. Johnson, 333 F.Supp. 543 (E.D. Va. 2004), cert.

denied, 542 U.S. 963 (2004).

15. The Court, in Lenz, observed that nothing in Hill v.

McDonough, supra, changed the Fourth Circuit’s prior decisions

handling any issues involving Virginia’s lethal injection

protocols. The Court concluded even if there were a basis to

overcome the untimeliness of Lenz’s complaint, under Blackwelder

1977), Lenz would be entitled to no relief under his burden of

proof that by a clear showing a balancing of the equities would

fall in his favor. “A court must consider the likelihood of

irreparable injury to the plaintiff if the preliminary injunction

were denied; the likelihood of harm to the defendant if the request

were granted; the likelihood that the plaintiff will prevail on the

merits; and the public interest.” Lenz, 2006 U.S. Dist. LEXIS at

*23.

The Court found that:

First, Lenz cannot establish the likelihood that he would

sustain irreparable injury if the preliminary injunction

request were denied. As courts have noted, the potential

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 13 of 27

14

injury must be actual and imminent, and not theoretical

or speculative. See In re Microsoft Corp. Antitrust

in Reid found that the chance that an inmate would be

conscious and able to feel pain during the administration

of the final two chemicals is less than 6/1000 of one

percent. There is simply no way that Lenz can reconcile

that scientific fact with a "likelihood" of irreparable

harm.

Second, the harm to Defendants if the preliminary

injunction were granted is easy to grasp. The Supreme

Court in Hill acknowledged the interest states have in

enforcing their criminal judgments, and the Court was

emphatic in stating that "[t]he federal courts can and

should protect [s]tates from dilatory or speculative

suits." 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006).

Allowing illegitimate obstructions to the orderly

administration of justice would certainly harm Defendants

as they try to fulfill their public duties. Moreover,

states have a recognized interest in ensuring the timely

execution of death sentences. See Calderon v. Thompson,

523 U.S. 538, 556-57, 118 S.Ct. 1489, 140 L.Ed.2d 728

(1998).

Third, given the clear weight of case law in this

jurisdiction (discussed supra and infra), Lenz is not

likely to prevail on the merits of his Complaint.

Finally, with respect to the public interest, society's

interest in retribution for criminal activity would erode

rapidly if patently dilatory suits were permitted to

derail the administration of justice time and time again.

Lenz has been facing a sentence of death for almost six

years. He has exhausted all state and federal avenues

for challenging his sentence and the underlying

conviction, yet, curiously, Lenz has raised these lethal

injection arguments for the very first time in the

scheduled execution date. This area of law is not new,

and Virginia's lethal injection protocol has not been an

ever-changing mystery--certainly not in recent years.

The motivation behind Lenz's last-minute Complaint is

obviously to unjustifiably delay the inevitable. The

Court finds that the equities weigh heavily in favor of

denying Lenz's request for injunctive relief.

This finding is consistent with other recent rulings in

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 14 of 27

possibility of injury is imminent or “certainly pending.” Adarand

15

this Court and in the Fourth Circuit. As already

discussed, the Court in Reid and Vinson rejected

virtually the same arguments now before the Court.

Notably, the Fourth Circuit affirmed the denial of a stay

in each of those cases. Perhaps even more persuasive,

though, is the Walker case. Even if the Court permitted

only a limited challenge to the lethal injection protocol

in Reid, this Court undoubtedly permitted a full

challenge in Walker, exploring evidence of the types of

chemicals used, training and qualification of personnel,

administration methods, and other factors.

Notwithstanding the arguably more comprehensive

presentation of facts in Walker, the Court, nevertheless,

struck the case from its docket shortly after hearing

summary judgment arguments.

Finally, in Walton v. Johnson, No. 2:06cv258 (E.D. Va.),

this Court did grant a stay of execution. Significantly,

the Fourth Circuit, the appellate court vacated the stay

of execution the very same day on which the stay was

imposed--June 7, 2006. It is difficult to contemplate a

clearer indicator of the Fourth Circuit's stance toward

lethal injection method of execution in Virginia.

Accordingly, and upon consideration of the merits of

Lenz's Complaint, n4 the Court will grant Defendant's

Motion to Dismiss.

n4 Because this case can be properly dismissed on the

merits, potential procedural bars, such as the failure to

exhaust administrative remedies, need not be discussed.

16. Clearly, the district court was likewise correct in

finding that Hill had not provided a basis for justifying any delay

in filing his §1983 complaint.

17. There are additional reasons why dismissal is also

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 15 of 27

Constructors v. Pena, 115 S.Ct. 2097, 2105 (1995); Shotz v. Cates,

required to confer standing); Bowen v. First Family Financial

‘allege[s] facts from which it appears there is a substantial

likelihood that he will suffer injury in the future.’”)(Emphasis

added).

Hill cannot demonstrate a basis for standing to bring his §1983

action since he cannot overcome his burden of showing he has facts

from “which it appears there is a substantial likelihood that he

will suffer injury in the future.” See: Abdur’ Rahman v. Bredesen,

181 S.W.3d 292 (Tenn. 2005) cert. denied, __ U.S. __, 126 S.Ct.

2288, 164 L.Ed.2d 813 (2006), wherein, following an evidentiary

hearing on the three drug cocktail, the court found that method did

not violate the Eighth Amendment.

not qualify as exhaustion of administrative remedies but would also

bar any §1983 action. Muhammad v. Close, 540 U.S. 749 (2004).

Florida Administrative Code has a procedure in place through which

Hollingsworth may grieve his claim. Under §944.09(1)(d), Florida

Statutes (1999), and §944.331, Florida Statutes (1999), the

legislature directed the Department of Corrections to adopt rules

pertaining to inmate grievance procedures that conform to 42 U.S.C.

§1997e, which the Department has promulgated in Chapter 33-103.);

time has been improperly calculated, in violation of Weaver v.

Graham, 450 U.S. 24, 67 L.Ed.2d 17, 101 S.Ct. 960 (1981). However,

he has not shown that he has exhausted his administrative remedies

and timely filed for review of final agency action in this Court,

pursuant to §120.68(1), Fla.Stat. (1979). Rule 33.3.07, Fla.

Admin. Code, dictates a two-step review process within the

Department of Corrections, prior to judicial review of the order of

the Secretary or his representative. This Court has no

jurisdiction over petitioner's case because he fails to show that

16

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 16 of 27

he filed this petition within 30 days of the Secretary's response

to an inmate grievance appeal.” “...the petition for writ of

mandamus is denied for failure to allege and show exhaustion of

administrative remedies.”); Sutton v. Strickland, 485 So.2d 25

confinement status through writ of habeas corpus was subject to

dismissal where the petitioner failed to exhaust administrative

remedies through the Department of Corrections' inmate grievance

procedure).

Injunctive Relief, filed September 1, 2006, he admits he

misrepresented that he exhausted state administrative remedies when

he contends he first argues that he has “no administrative remedy

available” because the “lethal injection procedure” is

“prospective,” but then notes that he is precluded from bringing

any state administrative challenges because he elected to litigate

the lethal injection procedure via the state courts. See 42 U.S.C.

§1997e(a).

Finally, the ability to bring a §1983 claim, rather than

a habeas application, does not entirely free inmates from

substantive or procedural limitations. The Prison

Litigation Reform Act of 1995 (Act) imposes limits on the

scope and duration of preliminary and permanent

injunctive relief, including a requirement that, before

issuing such relief, "[a] court shall give substantial

weight to any adverse impact on . . . the operation of a

criminal justice system caused by the relief." 18 U.S.C.

§3626(a)(1) [18 USCS §3626(a)(1)]; accord, §3626(a)(2).

1321-71, 42 U.S.C. §1997e(a) [42 USCS §1997e(a)] ("No

action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal

law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies

seeks monetary relief from a defendant who is immune from

17

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 17 of 27

relief." §1997e(c)(1). Indeed, if the claim is frivolous

on its face, a district court may dismiss the suit before

the plaintiff has exhausted his state remedies.

§1997e(c)(2).

Nelson v. Campbell, 541 U.S. 649 (Emphasis added).

Hill’s state administrative remedies have been known and

available to him since 2000, when Florida changed it method of

execution and, as such, he was required to exhaust them prior to

any §1983 filing. See Woodford v. Ngo,__U.S. __, 126 S.Ct. 2378,

74 USLW 4404, 165 L.Ed.2d 368 (June 22, 2006)(Prison Litigation

Reform Act of 1995 (PLRA), “PLRA strengthened this exhaustion

provision”...exhaustion is mandatory, Booth v. Churned, 532 U.S.

731, 739 (2001), thus “exhaustion of available administrative

remedies is required for any suit challenging prison conditions

(the crux of Hill’s §1983 claim), not just suits under §1983.

83.

state court postconviction litigation, the issue of whether “new

evidence” has come to light based on “research letters” published

in THE LANCET, that evidenced empirical data that execution by

lethal injection might be flawed. The state trial court and

Florida Supreme Court rejected the very argument made herein in his

federal action.

Collateral estoppel, or issue preclusion, prevents relitigation

of all "issues of fact or law that were actually

litigated and necessarily decided in a prior proceeding against the

party who seeks to relitigate the issues.” Hawkins v. Risley, 984

effect to issues decided by state courts when a party from a prior

state court proceeding attempts to re-litigate identical issues in

a subsequent federal proceeding. Allen v. McCurry, 449 U.S. 90,

96, 66 L.Ed.2d 308, 101 S.Ct. 411 (1980). This deference "promotes

the comity between state and federal courts that has been

recognized as a bulwark of the federal system." McCurry, 449 U.S.

at 95-96 (citing Younger v. Harris, 401 U.S. 37, 43-45, 27 L.Ed.2d

669, 91 S.Ct. 746 (1971)). See San Remo Hotel, L.P. v. City and

county of San Franscico, California, 545 U.S. 323, 332-33 (2005).

A state postconviction proceeding decided on the merits can be

the basis for precluding a §1983 action in federal court if the

state court afforded a “full and fair opportunity for the issue to

18

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 18 of 27

2006). Federal courts must give preclusive effect to state court

judgments, and the scope of the preclusive effect is governed by

the law of the state from which the prior judgment emerged. See

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 79

L.Ed.2d 56, 104 S.Ct. 892 (1984). Issue preclusion applies under

Florida law when: (1) the issue in the present action is identical

to the issue decided in the prior adjudication; (2) the prior

adjudication resulted in judgment on the merits; (3) the party

against whom issue preclusion is asserted was a party or is in

privity with a party to the prior adjudication; and (4) the party

against whom collateral estoppel is asserted had a full and fair

opportunity to litigate the issue in the prior suit.

jurisdiction of federal district courts and courts of appeal over

certain matters related to previous state court litigation. See

Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); Dist. of

Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983).

Under this doctrine, federal courts, other than the Supreme Court,

“have no authority to review the final judgments of state courts"

which involve the same parties as the parties in the federal

action, and this jurisdictional bar “extends not only to

constitutional claims presented or adjudicated by a state court,

but also to claims that are 'inextricably intertwined' with a state

court judgment." Goodman ex. rel Goodman v. Sipos, 259 F.3d 1327,

claim is inextricably intertwined with a state court judgment if

the federal claim succeeds only to the extent that the state court

wrongly decided the issues before it." Goodman, 259 F.3d at 1332.

Nevertheless, “even if a claim is 'inextricably intertwined' with

the state court's judgment, the doctrine does not apply if the

plaintiff had no 'reasonable opportunity to raise his federal claim

in state proceedings.'" Id. (internal citation omitted).

19

While the Court did not rule on these alternative grounds, each are

equally as valid a basis to dismiss as the timeliness basis for

dismissing.

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 19 of 27

20

18. As expressed in Hill v. McDonough, supra, Hill is not

entitled to a stay of execution here:

Filing an action that can proceed under §1983 does not

entitle the complainant to an order staying an execution

as a matter of course. Both the State and the victims of

crime have an important interest in the timely

enforcement of a sentence. Calderon v. Thompson, 523

U.S. 538, 556, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).

Our conclusions today do not diminish that interest, nor

do they deprive federal courts of the means to protect

it.

We state again, as we did in Nelson, that a stay of

execution is an equitable remedy. It is not available as

a matter of right, and equity must be sensitive to the

State's strong interest in enforcing its criminal

judgments without undue interference from the federal

courts. 541 U.S., at 649-650, 124 S.Ct. 2117, 158

L.Ed.2d 924. See In re Blodgett, 502 U.S. 236, 239-240,

v. Stokes, 495 U.S. 320, 323, 110 S.Ct. 1880, 109 L.Ed.2d

325 (1990) (per curiam) (KENNEDY, J., concurring). Thus,

like other stay applicants, inmates seeking time to

challenge the manner in which the State plans to execute

them must satisfy all of the requirements for a stay,

including a showing of a significant possibility of

success on the merits. See Barefoot v. Estelle, 463 U.S.

880, 895-896, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). See

also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct.

injunction not granted unless the movant, by a clear

showing, carries the burden of persuasion).

A court considering a stay must also apply "a strong

equitable presumption against the grant of a stay where

a claim could have been brought at such a time as to

allow consideration of the merits without requiring entry

of a stay." Nelson, supra, at 650, 124 S.Ct. 2117, 158

L.Ed.2d 924. See also Gomez v. United States Dist. Court

for Northern Dist. of Cal., 503 U.S. 653, 654, 112 S.Ct.

the “last-minute nature of an application" or an

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 20 of 27

21

applicant's "attempt at manipulation" of the judicial

process may be grounds for denial of a stay).

Hill, 126 S.Ct at 2104.

relief not warranted where delay in bringing action challenging

method of execution post-Nelson); White v. Johnson, 429 F.3d 572

be dismissed. See Alley v. Little, supra, wherein the Sixth

Circuit Court also provided:

... The Court took note of two cases, one from this

circuit, in which "federal courts have invoked their

equitable powers to dismiss suits they saw as speculative

or filed too late in the day." Ibid. In Hicks v. Taft,

petition by a death row inmate, filed six days before his

scheduled execution, did not warrant a stay of the

execution even though the district court had permitted

him to intervene in a fellow inmate's §1983 challenge to

the constitutionality of Ohio's lethal injection

protocol. We held the "district court . . . did not

abuse its discretion in weighing the criteria for the

granting of a stay . . . and denying the relief

requested, primarily because the motion was untimely."

(citing Nelson, 541 U.S. at 649, and quoting the phrase

"a court may consider the last minute nature of an

application to stay execution in deciding whether to

grant equitable relief"). In White v. Johnson, 429 F.3d

dismissal of a condemned's "last-minute" §1983 challenge

to Texas's lethal injection protocol on the grounds that

it was "dilatory." Justice Kennedy wrote the "federal

courts can and should protect States from dilatory or

speculative suits . . . ." Hill [WL] at 10.

19. Likewise, in Reese v. Livingston, 2006 U.S. LEXIS 4890

lethal injection protocol on May 25, 2006, less than one month

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 21 of 27

22

before his scheduled execution on June 20th. In considering

Reese's petition, the Fifth Circuit cited Hill for the proposition

that “a plaintiff cannot wait until a stay must be granted to

enable it [sic] to develop facts and take the case to trial-not

when there is no satisfactory explanation for the delay." The

court denied Reese's request for a stay of execution during the

pendency of his §1983 challenge to the lethal injection protocol.

The Supreme Court, in Reese v. Livingston, 2006 U.S. LEXIS 4889

(2006), acting that same day, denied a stay and denied Reese's

petition for a writ of certiorari. Reese was executed. See also

to state a claim upon which relief may be granted,” citing Harris

dilatory, because Wilson has been sentenced to death for

approximately 12 years and failed to file his complaint until more

than two years after the Supreme Court denied certiorari for his

federal habeas petition....[w]e deny his request for injunctive

relief without reaching the merits of his §1983 claim. Id. at 417;

S.Ct. 1294, 163 L.Ed.2d 1146 (2006); White v. Johnson, 429 F.3d 572

Lenz v. Johnson, 2006 U.S. Dist. LEXIS at *21-22, (relying on Hill

v. McDonough, held “The Fourth Circuit has been equally transparent

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 22 of 27

country have sought to challenge lethal injection protocols for

judicial executions. See, e.g., Morales v. Hickman, 415 F.Supp.2d

1037 (N.D. Cal. 2006); Smith v. Johnson, No. 4:06-CV-450, 2006 WL

2006); Evans v. Saar, 412 F.Supp.2d 519 (D. Md. 2006); Anderson v.

Evans, No. 5:05-CV-0825-F, 2006 WL 83093 (W.D. Okla. Jan. 11,

2006); Ross v. Rell, 392 F.Supp.2d 224 (D. Conn. 2005); Beardslee

v. Woodford, No. 5:04-CV-5381-JF, 2005 WL 40073 (N.D. Cal. Jan. 7,

23

in expressing its views. See, e.g., Stockton v. Angelone, 70 F.3d

interference with the orderly processes of justice which should be

avoided in all but the most extraordinary of circumstances.");

another example of a petitioner who has waited until the eve of his

execution to . . . [seek relief] without a justifiable excuse for

the delay").” And most recently Flippen v. Beck, Case. No. 5:06-

CT-3062-H, Order denying injunctive relief and stay of execution

based on attack on North Carolina’s drug protocols), Flippen v.

injunctive relief and stay denied), cert. denied Flippen v. Beck,

2006 U.S. 5315 (August 18, 2006).

20. Moreover, as to any injunctive relief, the standard for

issuance of a preliminary injunction within the court’s discretion,

is dictated by four factors:

a. A substantial likelihood of success on the

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 23 of 27

F.Supp.2d 543 (E.D. 2006); Harris v. Johnson, 323 F.Supp.2d 797

Sizer, 321 F.Supp.2d 658 (D. Md.), vacated, 542 U.S. 916 (2004);

Cooper v. Rimer, No. 5:04-CV-436-JF, 2004 WL 231325 (N.D. Cal. Feb.

839 N.E.2d 691 (Ind. 2005), cert. denied, 126 S.Ct. 1190 (2006);

Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 20051, cert.

denied, 126 S.Ct. 2288 (2006).

The Courts have concluded that there has been a failure to

demonstrate a likelihood of irreparable harm or a likelihood of

success on the merits in many of these case.

three-chemical lethal injection procedure support a cognizable

claim under §1983; injunctive relief is not warranted if the delays

in filing of a §1983 action for equitable relief are just before a

Cir. 2005), White v. Livingston, __ U.S. __, 126 S.Ct. 601, 163

L.Ed.2d 502 (2005)(affirming the dismissal of White's §1983 action

for injunctive relief and emphasizing that White delayed until the

eleventh hour to file his challenge to the state's lethal injection

with the three chemicals in issue); Cooper v. Rimmer, 379 F.3d

equitable relief in §1983 action challenging state's three-chemical

protocol for execution by lethal injection); Harris v. Johnson, 376

entitled to equitable relief in §1983 action challenging the

state's three-chemical protocol for execution by lethal injection

where he had unnecessarily delayed in bringing his claim); Bieghler

v. Donahue, No. 1:06-cv-00136-LJM-TAB, 2006 U.S. Dist. LEXIS 6751

(S.D. Ind. Jan. 26, 2006) (relying on Nelson and denying TRO and

preliminary injunction in plaintiff's last-minute §1983 action

challenging the state's three-chemical method of lethal injection

and dismissing the §1983 action), stay of execution granted, No.

order), stay of execution vacated, No. 05A684,___ U.S. ___, 126

S.Ct. 1190, 163 L.Ed.2d 1144 (2006).

24

b. Whether the plaintiff will suffer irreparable

c. Whether the threatened injury to the plaintiff

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 24 of 27

a clear showing, carries the burden of persuasion).”

25

d. Whether the injunction, if issued, will be

Alabama v. United States Army Corps of Eng'Rs, 424 F.3d 1117, 1128

S.Ct. 888 (1991).

21. Hill has the burden of showing these factors, not the

defendants. Alabama v. United States Army Corps of Eng'Rs, 424

F.3d at 1136. While weighing these factors, the court should keep

in mind that a preliminary injunction is “‘ an extraordinary and

drastic remedy [which is] the exception rather than the rule, and

the plaintiff must carry the burden of persuasion.’” United States

drastic remedy is not routinely granted. Haitian Refugee Center v.

Baker, 789 F.Supp. 1552, 1558 (S.D. Fla. 1991). To warrant entry

of preliminary relief, the movant must “clearly” carry his burden

of persuasion on all four factors. Church v. City of Huntsville,

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 25 of 27

26

four factors, it is an abuse of discretion for the court to enter

a preliminary injunction when the movant has failed to demonstrate

all four factors.) Of the four factors, irreparable harm is the

most important. Northeastern Florida Chapter v. Jacksonville,

grounds, 111 S.Ct. 2297 (1993); Lambert, 695 F.2d at 540

(demonstrating a substantial likelihood of success on the merits

still requires a movant to show irreparable harm to warrant

issuance of a preliminary injunction). Clearly, based on the

plethora of cases resolving the instant claim whether based on The

LANCET article or some alternative challenge, no relief is

warranted.

22. Hill has failed to establish that the facts warrant the

exercise of this Court's injunctive powers. The likelihood of

irreparable harm to Respondent is greater than the likelihood

ofirreparable harm to Hill. Moreover, Hill has not demonstrated a

likelihood of success on the merits of his claim. These factors,

balanced together with the public interest, counsel against the

issuance of a preliminary injunction in this case. Any motion for

a preliminary injunction should be denied.

Respectfully submitted,

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 26 of 27

27

/s/ Carolyn M. Snurkowski

CAROLYN M. SNURKOWSKI

Assistant Deputy Attorney General

Florida Bar No. 158541

OFFICE OF THE ATTORNEY GENERAL

The Capitol

Tallahassee, FL 32399-1050

(850) 414-3300

COUNSEL FOR RESPONDENT

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of the foregoing

has been furnished by electronic filing and U.S. Mail to Mr. Todd

Doss, 725 SE Baya Drive, Suite 102, Lake City, Florida 32026, this

/s/ Carolyn M. Snurkowski

CAROLYN M. SNURKOWSKI

Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 27 of 27