                                                                        PUBLISH

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 07-14956                  November 5, 2007
                          ________________________           THOMAS K. KAHN
                                                                  CLERK
                    D. C. Docket No. 07-00295-CV-MEF-WC

DANIEL LEE SIEBERT,
                                                       Plaintiff-Appellant,

                                      versus

RICHARD ALLEN, Commissioner,
Alabama Department of Corrections,
individually and in his official capacity,
GRANTT CULLIVER, Warden, Holman
Correctional Facility, in his
individual and official capacity,
                                                 Defendants-Appellees.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         _________________________
                               (November 5, 2007)

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

PER CURIAM:


      We sua sponte vacate and reconsider our original opinion and substitute the

following.
      Daniel L. Siebert appeals the district court’s denial of his Emergency

Motion for Preliminary Injunction to Stay Execution and requests a postponement

of execution. We conclude that the district court erred in refusing to enjoin the

Commissioner from carrying out Siebert’s execution pending the court’s final

disposition of his “as-applied” claim, i.e., that the three-drug protocol to be used

by Alabama during his execution by lethal injection, as applied to him, would

violate his Eighth and Fourteenth Amendment rights to be free from cruel and

unusual punishment. We therefore reverse the district court’s order and remand

the case for further consideration of Siebert’s claim.

      Siebert’s federal habeas challenge to his conviction and death sentence for

the murders of Sherri Weathers and her two sons was denied certiorari by the

United States Supreme Court on March 19, 2007. On April 9, 2007, Siebert filed a

42 U.S.C. § 1983 suit in the Middle District of Alabama challenging the

constitutionality of the State’s three-drug protocol for his execution by lethal

injection on the ground that it creates an unnecessary risk of severe pain and

suffering. In late May 2007, Siebert was stricken with severe jaundice and

diagnosed with hepatitis C. A biopsy was taken on July 12, 2007, and Siebert was

diagnosed with pancreatic cancer as well. On July 19, 2007, Siebert immediately

filed an Amended Complaint restating the allegations in his first complaint and

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adding the claim that, as applied to him specifically, the three-drug protocol would

constitute cruel and unusual punishment in violation of the Constitution because

of substantial complications likely to arise due to his serious illnesses. The

Alabama Supreme Court thereafter entered an order setting October 25, 2007, as

the date of Siebert’s execution.

       On October 3, 2007, the district court granted the Commissioner’s motion to

dismiss Siebert’s § 1983 claim to the extent that it mounted a general challenge to

the constitutionality of Alabama’s three-drug protocol, finding that Siebert had

delayed unnecessarily in bringing that claim. However, the court denied the

Commissioner’s motion to dismiss Siebert’s “as-applied” § 1983 claim. Because

the factual predicate for that claim – namely, Siebert’s diagnosis of pancreatic

cancer and hepatitis C – was not in place until late May 2007,1 the court concluded

that Siebert did not unreasonably delay in bringing his claim. Noting that

dismissal was also not warranted on statute-of-limitations grounds, the court held

that this “as-applied” claim “survive[s] and will be litigated.” A scheduling

conference was accordingly set for October 10, 2007, on that claim.

       On October 9, 2007, Siebert moved the district court to enjoin his execution.



       1
        While the district court states late May 2007, it appears the actual diagnosis of pancreatic
cancer was even later than that.

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The court acknowledged that the motion was timely but concluded that Siebert had

not satisfied the requisites for a preliminary injunction. Specifically, the court

held that Siebert had not demonstrated a substantial likelihood that he would

eventually prevail on the merits of his “as-applied” challenge. Whether Siebert

could ultimately prevail on his “as-applied” challenge would have to await further

proceedings, perhaps a trial on the merits.

       The district court correctly stated the four factors to be considered in

determining whether preliminary injunctive relief is to be granted, which are

whether the movant has established: (1) a substantial likelihood of success on the

merits; (2) that irreparable injury will be suffered if the relief is not granted; (3)

that the threatened injury outweighs the harm the relief would inflict on the non-

movant; and (4) that entry of the relief would serve the public interest. See, e.g.,

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).2



       2
          While the district court conducted de novo review of Siebert’s claim, we review the
district court’s denial of injunctive relief only for an abuse of discretion. “This scope of review
will lead to reversal only if the district court applies an incorrect legal standard, or applies
improper procedures, or relies on clearly erroneous factfinding, or if it reaches a conclusion that
is clearly unreasonable or incorrect.” Schiavo, 403 F.3d at 1226; see also Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004); Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001). “Short of that, an abuse of
discretion standard recognizes there is a range of choices within which we will not reverse the
district court even if we might have reached a different decision.” Schiavo, 403 F.3d at 1226; see
also McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001); In re Rasbury, 24 F.3d 159, 168-
69 (11th Cir. 1994).

                                                4
       We conclude that the district court abused its discretion in denying

preliminary injunctive relief as to Siebert’s “as-applied” claim. The district court

found that Siebert’s “as-applied” claim was timely filed immediately upon

diagnosis of Siebert’s hepatitis C and terminal pancreatic cancer and thus as soon

as he could have brought it.3 Specifically, Siebert’s “as-applied” claim derives

from his recent diagnosis of hepatitis C and inoperable pancreatic cancer,

including but not limited to obstruction of his upper gastrointestinal tract (“GI

tract”) due to a cancerous tumor. The district court noted that Siebert has a

feeding tube, suffers from chronic nausea and tumor-related pain, and has been

losing weight. Dr. Jimmie H. Harvey, Jr., a board-certified medical oncologist,

reviewed Siebert’s medical records and opined, among other things, that Siebert’s

life expectancy is less than 90 days and that there is a “great likelihood” that

Siebert would regurgitate stomach content when administered the current



       3
         The reversal of the district court’s denial of the preliminary injunction relates to only
Siebert’s “as-applied” claim, as to which the district court denied the motion to dismiss. We
affirm the district court’s denial of a preliminary injunction on Siebert’s general challenge to
Alabama’s three-drug protocol, which the district court dismissed on the grounds that Siebert
unreasonably and unnecessarily delayed in bringing said claim until his execution was imminent.
See Williams v. Allen, 496 F.3d 1210, 1215 (11th Cir. 2007), cert. dismissed, ___ S. Ct. ___, 76
U.S.L.W. 3168 (U.S. Aug. 22, 2007) (No. 07-6034); Grayson v. Allen, 491 F.3d 1318, 1322
(11th Cir. 2007) (“Grayson II”), cert. denied, ___ S. Ct. ___, 76 U.S.L.W. 3049 (U.S. July 26,
2007) (No. 07-5457); Jones v. Allen, 485 F.3d 635, 639-40 (11th Cir. 2007), cert. denied, 127 S.
Ct. 2160 (2007); Rutherford v. McDonough, 466 F.3d 970, 973-74 (11th Cir. 2006), cert. denied,
127 S. Ct. 465 (2006).

                                                5
three-drug protocol and aspirate prior to death. Moreover, Dr. Harvey stressed, in

this regard, Siebert’s malignancy and the physiology of his upper GI tract at this

particular time. Because Siebert is “cachectic,” which the district court found

means “having physical wasting with loss of weight and muscle mass due to

disease,” Dr. Harvey also noted that Siebert will have “very compromised venous

access” due to his particular serious medical conditions. Additionally, Dr. Harvey

reported that due to “the inevitable death related to this malignancy, Mr. Siebert

has elected to receive no palliative chemotherapy or radiation therapy.”

      Given the timeliness of the filing of Siebert’s “as-applied” claim, Dr.

Harvey’s evaluation and the unique situation presented by Siebert’s terminal

pancreatic cancer, we conclude that the district court erred in determining that

Siebert failed to show a substantial likelihood of success on the merits of his

“as-applied” claim. Therefore, it was an abuse of discretion for the district court

to deny Siebert’s motion for a preliminary injunction as to the “as-applied”

challenge to Alabama’s three-drug protocol.

      Accordingly, we AFFIRM the district court’s denial of a preliminary

injunction on Siebert’s general challenge to Alabama’s three-drug protocol. See

Williams, 496 F.3d at 1212-13 (quoting Grayson, 491 F.3d at 1322). We

REVERSE the district court’s denial of Siebert’s Emergency Motion for a

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Preliminary Injunction on Siebert’s “as-applied” claim, and we REMAND the case

for consideration of Siebert’s “as-applied” claim on the merits. The stay

previously entered by this Court shall remain in effect until the time that the

district court has entered judgment on the merits.4

       AFFIRMED, in part, REVERSED, in part, and REMANDED.




       4
        In light of this Court’s sua sponte stay in its October 25, 2007 order, we deny as moot
Siebert’s Motion for Stay of Execution filed in this Court on October 23, 2007.

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