Submitted: April 24, 2017
from United States District Court for the Eastern District of
Arkansas - Pine Bluff
WOLLMAN, LOKEN, and SHEPHERD, Circuit Judges.
April 11, 2017, Arkansas inmate Marcel Williams, who is
scheduled to be executed on April 24, brought this 42 U.S.C.
§ 1983 action challenging the Arkansas lethal injection
execution protocol. The district court denied his motion
for a preliminary injunction. Williams appeals and moves for
a stay of execution pending appeal. We deny the motion for
April 2015, Williams joined other Arkansas prisoners in
filing an action raising a federal constitutional challenge
to the recently adopted method of execution, the method
Williams challenges in this case. When the State removed,
plaintiffs dismissed without prejudice and refiled in state
court, alleging only violations of Arkansas law. After a year
of litigation, the Supreme Court of Arkansas dismissed the
claim that the method of execution constituted cruel or
unusual punishment in violation of the Arkansas Constitution.
Kelley v. Johnson, 496 S.W.3d 346, 357 (Ark. 2016),
cert. denied, 137 S.Ct. 1067 (2017). On February 27,
2017, six days after the denial of certiorari, Arkansas
Governor Asa Hutchinson scheduled the executions of Williams
and seven other death row prisoners.
March 27, Williams and eight other inmates sentenced to death
filed an action alleging that the method of execution
violates the Eighth Amendment in all cases. The district
court granted stays of execution, but we vacated the stays,
concluding (i) the prisoners unreasonably delayed in bringing
their federal claims, (ii) they failed to show a likelihood
of success on the merits of their claim that the execution
protocol was "sure or very likely to cause
serious illness and needless suffering, " Glossip v.
Gross, 135 S.Ct. 2726, 2737 (2015), quoting Baze v.
Rees, 553 U.S. 35, 50 (2008) (plurality opinion); and
(iii) the prisoners failed to make the second showing
Glossip requires -- a significant possibility of
establishing a known, available alternative that would
significantly reduce a substantial risk of severe pain.
McGehee v. Hutchinson, No. 17-1804 (8th Cir. Apr.
17), cert. denied, No. 16A1003 (16-8770) (April 20,
filed this separate action, an "as-applied"
challenge alleging that, due to his medical conditions --
morbid obesity, diabetes and attendant neuropathy,
hypertension, and sleep apnea -- there is a substantial and
unjustifiable risk that the execution method will cause him
severe pain and serious harm in violation of the Eighth
April 21, 2017, the district court held an evidentiary
hearing on Williams's motion for a preliminary
injunction. In addition to the record from the hearing in
McGehee, Williams called as witnesses Dr. Joel
Zivot, an anesthesiologist who also testified at the
McGehee hearing, and Arkansas Department of
Corrections Director Wendy Kelley. Based on his review of
Williams's medical records and a March 23 physical
examination, Dr. Zivot opined that the protocol is
"unlikely" to kill Mr. Williams but more likely to
leave him disabled, and that if the lethal-injection protocol
causes death, "Williams will experience his death as
choking and suffocating." In addition, Dr. Zivot opined
that Williams's weight -- approximately 400 pounds --
will make locating a vein for IV access difficult and
increase the risk that midazolam, the initial drug, will not
properly provide an anesthetic effect; that his obstructive
sleep apnea puts him at risk of respiratory distress during
the procedure; and that, given his low potassium levels,
"it is possible" that the administration of
potassium chloride will not actually kill him. Director
Kelley testified that a pre-execution "vein check"
revealed that only one of Williams's arms had a
hearing, defendants introduced evidence that a
medically-trained person aided by an ultrasound device can
insert an IV line into a 400-pound man, and a 500 mg dose of
midazolam "would render an approximately 400-pound man
unconscious and unable to sense any pain or the need to
breathe, " regardless of whether he is diabetic, suffers
from sleep apnea, or has hypertension.
district court denied Williams's motion for a preliminary
injunction on April 21. The court concluded that Williams
unreasonably delayed in bringing his as-applied challenge,
and split his claims by not raising this claim in the facial
challenge in McGehee. On the merits, the court found
that Williams had not identified an alternative method of
execution in addition to those suggested in McGehee,
did not establish what additional safeguards would
significantly reduce a substantial risk of severe pain given
Williams's medical conditions, and failed to offer
sufficient evidence to establish that the execution protocol
as applied to him "is sure or very likely to cause
severe pain." The court further concluded that
Williams's use of piecemeal litigation and dilatory
tactics was sufficient reason to deny a stay of execution.
See Hill v. McDonough, 547 U.S. 573, 584-85 (2004).
agree with the district court that Williams failed to offer
evidence establishing a significant likelihood of success on
the merits. "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."
Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir.),
cert. denied, 136 S.Ct. 601 (2015).
succeed on the merits, Williams must show that the execution
method is "sure or very likely to cause serious
illness and needless suffering." Glossip, 135
S.Ct. at 2737. Dr. Zivot opined that the execution protocol
is more likely to maim than kill Williams. The State produced
testimony that the execution protocol will succeed despite
Williams's health conditions. As in McGehee, the
evidence is "equivocal, " lacks "scientific
consensus" and presents "a paucity of reliable
scientific evidence" on the impact of the
lethal-injection protocol on a person with Williams's
health conditions. No. 17-1804, Slip. Op. at 5-6.
succeed on the merits of his claim, Williams must also
identify a known and available alternative method of
execution that would substantially reduce a significant risk
of pain. See Johnson, 809 F.3d at 391. In terms of
alternative protocols, Williams argues the same alternatives
offered by the inmates in McGehee, which we
concluded did not meet Glossip's standard and
were not likely to emerge as more than a "slightly or
marginally safer alternative." McGehee, Slip
Op. at 7, quoting 135 S.Ct. at 2737. Williams argues he is
not required to identify a known, available alternative
method in an as-applied challenge, but we rejected that
contention in Johnson, 809 F.3d at 391. In
Bucklew v. Lombardi, 783 F.3d 1120, 1127 (8th Cir.
2015), we recognized that, in an as-applied challenge,
evidence that the State unreasonably refused to change its
regular method of execution to a feasible, readily
implemented alternative that would significantly reduce the
substantial risk of pain caused by a prisoner's unique
medical condition could satisfy the Glossip standard
in an unusual case. Williams argues Director Kelley's
testimony regarding his "vein check" establishes
this is such a case. ...