           Case: 18-10636   Date Filed: 02/22/2018   Page: 1 of 17


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10636
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 2:17-cv-02083-KOB



DOYLE LEE HAMM,

                                              Plaintiff - Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
WARDEN HOLMAN CF,
WARDEN DONALDSON CF,

                                              Defendants - Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (February 22, 2018)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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                                         I.

      Appellant Doyle Lee Hamm is an Alabama death-row inmate scheduled to

be executed on February 22, 2018. He appeals a February 20, 2018, order by the

United States District Court for the Northern District of Alabama denying his

request for an injunction against the Alabama Department of Corrections and the

Alabama Attorney General’s office (collectively, “Appellees”).

      In December of 2017, Hamm filed suit against Appellees under 28 U.S.C.

§ 1983, alleging that executing him by intravenous lethal injection would amount

to cruel and unusual punishment as applied to him. Lethal injection in Alabama

typically is carried out through an intravenous injection by one of two methods:

“peripheral venous access,” which involves the “insertion of a catheter into one of

the peripheral veins in the arms, hands, legs, or feet”; or “central line placement,”

which involves the “insertion of a catheter into the jugular vein in the neck, the

subclavian vein near the clavicle, or the femoral vein in the groin.” Dist. Ct.

Order, Feb. 6, 2018 at 6.

      Hamm alleges in his complaint that he suffers from lymphoma (a type of

blood cancer) and lymphadenopathy (enlarged lymph nodes), which, combined

with years of intravenous drug use, have rendered his veins inaccessible for the use

of a catheter without a complicated procedure carrying the risk of “a bloody and

excruciating experience.”    Hamm’s lawsuit asserts that an injection involving


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either peripheral or central line access would cause him significant pain and

suffering.    Based on this assertion, Hamm sought from the district court an

injunction preventing Appellees from executing him via intravenous injection. He

proposed instead that they execute him by pumping a lethal drug cocktail into his

stomach through a nasogastric tube. 1 The injunction Hamm seeks would not

prohibit Appellees from executing him altogether but would enjoin them from

doing so according to their usual intravenous method.

       On February 13, 2018, we vacated a stay of execution granted by the district

court because that court had not made sufficient findings showing a substantial

likelihood that Hamm would succeed on the merits of his case. We observed that

the record as it then stood lacked sufficient evidence on the matter, but we noted

that this was because Appellees had to that point restricted Hamm’s access to a full

medical examination.        We directed the district court to order a full medical

examination of Hamm immediately and to make findings on the record

accordingly.

       On February 15, 2018, with counsel for both parties present, an independent




       1
          Alabama provides capital defendants the opportunity to request electrocution as an
alternative method of execution. But a defendant waives this opportunity if he does not request
electrocution within thirty days of the Alabama Supreme Court’s decision to set an execution
date. The district court previously found that Hamm did not make a request within the thirty-day
timeframe, so he waived the chance to seek electrocution as an alternative method of execution.
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medical examiner conducted an examination of Hamm. 2 The examiner spoke with

the district judge orally following the exam.

       The following day, February 16, the district court held a hearing concerning

whether the examiner’s findings established a substantial likelihood that Hamm

would succeed on the merits of his case. The district judge heard arguments from

both sides and made some tentative factual findings based on her oral conversation

with the medical examiner. Based on the examiner’s finding that accessing veins

in Hamm’s arms would pose difficulties, the judge asked Appellees’ counsel on the

record whether they would stipulate to not administer Hamm’s lethal injection via

veins in his arms.       Appellees agreed, though they took the position that the

stipulation would in no way restrict them from using central line placement as an

alternative to peripheral venous access in accordance with their protocol.                  The

judge did not make any rulings from the bench, noting that she would issue a

written order once the medical examiner submitted a written report to the court.

       The medical examiner issued that report on February 19, 2018. It included a

number of specific findings pertaining to the status of Hamm’s veins. The report

summarized its findings as follows:

                      In summary, Mr. Hamm has accessible peripheral

       2
          The identity of the court-appointed medical examiner is known to this court, both
parties, and their respective counsel. But in order to secure the availability of an independent
examiner, the district court conducted all proceedings involving the examiner under seal, and all
documents identifying the examiner are likewise sealed.
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             veins in the following regions.

                1. Right great saphenous vein below the level of the
             knee. The vein is palpable from the medial aspect of the
             right knee to the anterior portion of the medial malleolus.

                 2. Left great saphenous vein below the level of the
             knee. The vein is palpable from the medial aspect of the
             left knee to the anterior portion of the medial malleolus.

                 3. Right and left internal jugular veins as well as the
             right and left subclavian veins and the right and left
             femoral veins. Access of these veins would require
             ultrasound guidance to perform and an advanced level
             practitioner would be required. (CRNA, PA or M.D.)
             [sic]

                4. There are no veins in either the left or right upper
             extremities which would be readily accessible for venous
             access without difficulty.

                 5. Given the accessibility of the peripheral veins
             listed above, it is my medical opinion that cannulation of
             the central veins will not be necessary to obtain venous
             access.

Med. Exam’r Report at 14.

      The district court issued its order on February 20, 2018.            The order

summarizes many of the medical examiner’s findings, but in doing so it misstates

certain key facts from the medical examiner’s report. In particular, the order states

that the medical examiner’s report “determines that the veins in Mr. Hamm’s upper

extremities would be accessible only by an advanced practitioner, such as a

CRNA, PA, or MD, using an ultrasound.” Dist. Ct. Slip Op. at 5. The report,


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however, says that Hamm’s central veins (jugular, subclavian, and femoral)—not

his peripheral arm veins—would require ultrasound and an advanced practitioner

to access. See Med. Exam’r Report at 14. The order also says that the written

report “determines that Mr. Hamm has accessible and usable veins in his upper and

lower extremities.” Dist. Ct. Slip Op. at 5. But the report, as noted above,

concluded “[t]here are no veins in either the left or right upper extremities which

would be readily accessible for venous access without difficulty.” Med. Exam’r

Report at 14.3

       All of that notwithstanding, the district court expressly adopted the medical

examiner’s written report. Dist. Ct. Slip Op. at 5. Then the district court found as

follows:

               [B]ased on the independent medical examiner’s report
               about Mr. Hamm’s venous access and lack of
               lymphadenopathy, and based on Defendants’ stipulation
               that they will not attempt peripheral venous access in Mr.
               Hamm’s upper extremities, the court finds that Mr.
               Hamm has adequate peripheral and central venous access
               for intravenous lethal injection of a large amount of fluid.
               He cannot show any medical factors that would make the
               Alabama lethal injection protocol, as applied to him,
               more likely to violate the Eighth Amendment than it
               would for any other inmate who would be executed
               following that protocol.

       3
         We appreciate the district court’s enormous efforts to ensure that the directives from our
February 13, 2018, order were complied with and can understand how the district court could
have mis-cited the report in light of the immense time pressure under which it was acting. The
medical report does note in its body that certain specific veins in Hamm’s upper extremities
“were of adequate size but would be very difficult to access without the use of ultrasound.”
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Id. at 6 (emphasis in the original). The court concluded that Hamm “cannot show a

substantial likelihood of success on the merits of his as-applied claim,” and that

“he cannot show that he will suffer irreparable injury without a preliminary

injunction.”    Accordingly, the court denied his “request for a preliminary

injunction.”

      Hamm then filed a motion for reconsideration, which the district court

denied. In doing so, the court emphasized, among other things, that the medical

examiner “opined that in light of the accessible peripheral veins in Mr. Hamm’s

lower extremities, ‘cannulation of the central veins will not be necessary to obtain

venous access.’” Dist. Ct. Order Den. Recons. at 2.

      Following Hamm’s appeal of the district court’s order denying preliminary

injunction and because of the exigencies of the situation and the inability to

conduct oral argument, we directed Appellees to clarify a few matters by

submitting an affidavit.    The affidavit, executed by the Warden of Holman

Correctional Facility (where Hamm’s execution is scheduled to take place),

attested that Appellees will achieve peripheral vein access through Hamm’s lower

extremities only, that Appellees are capable of administering an IV line through

Hamm’s veins in his lower extremities, and that Appellees will have ultrasound

technology and an M.D. present during Hamm’s execution.



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                                              II.

       We may reverse an order denying a preliminary injunction “only if there was

a clear abuse of discretion.” Siegel v. LePore, 234 F.3d 1163, 1175 (11th Cir.

2000) (en banc) (emphasis in the original). Reversal is warranted “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.” Forsyth Cty. v. U.S. Army Corps of Eng’rs, 633 F.3d

1032, 1039 (11th Cir. 2011) (quoting Schiavo ex rel. Schindler v. Schiavo, 403

F.3d 1223, 1226 (11th Cir. 2005)).4

       A party seeking a preliminary injunction must show “(1) it has a substantial

likelihood of success on the merits; (2) irreparable injury will be suffered unless

the injunction issues; (3) the threatened injury to the movant outweighs whatever

damage the proposed injunction may cause the opposing party; and (4) if issued,

the injunction would not be adverse to the public interest.” Siegel, 234 F.3d at


       4
          Hamm’s amended complaint seeks, among other forms of relief, “injunctive relief” to
prevent Appellees “from proceeding with the execution of Mr. Hamm by an intravenous lethal
injection” and “from planning or threatening Mr. Hamm with intravenous lethal injection by
excessively drawing blood or in any other way continuing to pursue intravenous lethal injection.”
Am. Compl. at 44. The district court interpreted this to mean a preliminary injunction, as
opposed to a permanent injunction, and analyzed whether Hamm had met all the requirements
necessary to show that a preliminary injunction is warranted. Neither party has challenged this
interpretation on appeal. We nevertheless observe that the outcome of this case would be the
same even if analyzed under the rubric of a permanent injunction. And because the legal
standards are the same for a preliminary injunction and for a stay, the outcome would be no
different if this were a motion for a stay of execution. See Grayson v. Warden, Comm’r, Ala.
DOC, 869 F.3d 1204, 1239 n.90 (11th Cir. 2017) (observing that “[t]he same four-part test
applies when a party seeks a preliminary injunction” and a stay of execution).
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1176. A preliminary injunction “is an extraordinary and drastic remedy not to be

granted unless the movant clearly establishes the burden of persuasion as to each of

the four prerequisites.”     Id. (quoting McDonald’s Corp. v. Robertson, 147 F.3d

1301, 1306 (11th Cir. 1998)) (internal quotation marks omitted).

      The merits of Hamm’s Eighth Amendment claim consist of two parts. First,

Hamm must show “that the method presents a risk that is sure or very likely to

cause serious illness and needless suffering, and give rise to sufficiently imminent

dangers.” Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015) (quoting Baze v. Rees,

553 U.S. 35, 50 (2008)) (italics and internal quotation marks omitted). Second, he

must “identify an alternative [method] that is feasible, readily implemented, and in

fact significantly reduce[s] a substantial risk of severe pain.”           Id. (internal

quotation marks omitted).

                                         III.

      The district court concluded that Hamm could show neither a likelihood of

success on the merits nor irreparable injury in light of the independent medical

examiner’s findings.       On appeal, Hamm argues the district court abused its

discretion in reaching these conclusions for three main reasons. We consider each

of them in turn.

      First, Hamm argues that despite the district court’s findings, he is still able to

show a significant likelihood of success on the merits. He points to a number of


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findings in the medical examiner’s report, which the district court adopted, that

include the following:

       - No veins in either of his arms “would be readily accessible for venous

           access without difficulty”;

       - Only two peripheral veins in his legs (one in each leg) were identified as

           readily accessible, leaving no margin for error since Alabama’s lethal

           injection protocol requires two separate IVs;

       - Both of Hamm’s legs are “hyperpigmented consistent with venous

           stasis”; 5

       - Both of the accessible veins in Hamm’s legs have “venous valvular

           insufficiency”; 6

       - Two lymph nodes were found in Hamm’s right groin, though they “do

           not impede venous flow”;

       - Venous access through central line placement would require “ultrasound

           guidance” and “an advanced level practitioner . . . (CRNA, PA or

           M.D.).”

Appellant Br. at 11.       All of these together, Hamm says, create a significant

likelihood that he will succeed in showing Alabama’s protocol of execution by

       5
         In his brief, Hamm notes that “[v]enous stasis keeps blood from moving well in the
veins and causes leakage from the veins into the skin.”
       6
         In his brief, Hamm says that venous valvular insufficiency “causes blood flow back and
causes blood to pool or collect in the veins.”
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intravenous lethal injection is unconstitutional as applied to him.

      But our inquiry is only whether the district court abused its discretion in

deciding otherwise.    We conclude it did not.       The district court adopted the

independent medical examiner’s determination that Hamm has two accessible

peripheral veins, one in each leg, and concluded that despite the observations

recounted by Hamm above, Appellees would be able to administer an intravenous

lethal injection through these two veins without significant risk of pain and

suffering to Hamm. We can find no clear error in this finding. And because

Appellees stipulated that they would attempt to perform the execution through the

use of the leg veins, the district court’s ruling that Hamm could not show a

significant likelihood of success on the merits of his Eighth Amendment challenge

was within the district court’s discretion on the record here.

      As for Appellees’ ability to access Hamm’s central veins, the medical report

(which the district court accepted) states, “Access of [the central veins] would

require ultrasound guidance to perform and an advanced level practitioner would

be required. (CRNA, PA, or M.D.).” Here, Appellees have stipulated via an

affidavit to this court that they will have ultrasound technology and an M.D.

present during Hamm’s execution. And in any event, nothing in the record allows

us to conclude that the district court erred when it declined to find that performing

the execution through central-vein access would violate Hamm’s Eighth


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Amendment rights.

      Second, Hamm argues that the district court (1) improperly devised a new

lethal-injection protocol and (2) refused to let him put on evidence as to whether

this protocol is constitutional.

      Beginning with the first of these, Hamm contends that the district court

“created and required the state to apply a ‘legs only lethal injection,’” a new

protocol he says the court was prohibited from imposing.              To support this

argument, Hamm points to Arthur v. Thomas, 674 F.3d 1257, 1263 (11th Cir.

2012), in which we observed that “[s]ignificant deviations from a protocol that

protects inmates from cruel and unusual punishment can violate the Eighth

Amendment.”

      We conclude the district court did not abuse its discretion in authorizing this

method of execution. True, Arthur does warn against “[s]ignificant deviations”

from a lethal injection protocol. But the plaintiff in that case had alleged that the

state had failed to follow through with “a required consciousness check” in a recent

execution. Id. at 1263. So we said that the plausible Eighth Amendment violation

was not just any deviation from protocol, but a deviation “from a protocol that

protects inmates from cruel and unusual punishment.” Id. And we observed that

such a deviation “can” run afoul of the Eighth Amendment—not that it necessarily

will. See id.


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       But here, lethal injection is already Alabama’s method of execution.

Alabama’s lethal-injection protocol does not specify where exactly IVs are

supposed to be placed. So the “deviation” (legs versus arms) appears to be a

deviation only from Alabama’s usual custom, not from its official protocol.

Moreover, the procedure the district court approved is the protocol designed to

protect Hamm from cruel and unusual punishment given the fragile state of his arm

veins. Though Hamm asserts that Appellees have never before performed an

intravenous lethal injection via the legs, the district court adopted the independent

medical examiner’s findings that Hamm’s great saphenous veins would be

accessible without issue. The district court was within its discretion to conclude

that authorizing a lethal injection via Hamm’s legs would not present a

constitutionally prohibited risk of pain and suffering. 7

       Hamm also invokes Nelson v. Campbell, 541 U.S. 637 (2004), a case

involving an Alabama death-row inmate’s challenge to a change in execution

protocol implemented days before his scheduled execution. Hamm contends that

there, the Supreme Court rejected Alabama’s attempt to use central venous access

on Nelson “in large part based on the problematic deviation from the normal

protocol.” Appellant Br. at 25. But that mischaracterizes Nelson. The Court in

Nelson held only that Nelson could bring a § 1983 action to challenge Alabama’s

       7
          Appellees have also attested via affidavit that people capable of accessing the leg veins
will participate in the execution.
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decision to use a so-called “cut-down” procedure to gain central line access for his

lethal injection. Nelson, 541 U.S. at 645-46. Plus, the Court noted that in that

case, state officials rolled back a number of safeguards and withdrew a number of

assurances they had made about the execution process shortly before the execution

was scheduled to take place. Id. at 641. But as we have explained, the procedure

approved by the district court here does not roll back any safeguards. Rather, it

ensures to the extent possible that Hamm will not experience excess pain and

suffering in the course of his execution.

      Hamm also takes issue with the district court’s refusal to let him put on

evidence about whether lethal injection via his legs would violate his Eighth

Amendment rights. At the hearing held on Friday, February 16, 2018, after the

district court stated on the record that the medical examiner found Hamm’s great

saphenous veins to be accessible, Hamm’s counsel asked the court for the

opportunity to elicit testimony from several witnesses about the executioners’

qualifications and experience relevant to administering lethal injections through the

legs. Those witnesses included the Commissioner of the Alabama Department of

Corrections, the Warden of Holman Correctional Facility, and a former Warden of

Holman who had previously administered a number of lethal injections.         All of

them were present in the courtroom for the hearing. The district court denied

counsel’s request, explaining that the evidence he sought to put on would


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essentially go to whether Alabama’s lethal injection protocol is constitutional on its

face, as opposed to whether it is constitutional only as applied to Hamm.

       The district court did not abuse its discretion in denying Hamm’s request.

The testimony Hamm sought to elicit from the various witnesses concerned their

experience and training relevant to administering a lethal injection through the

legs. Though Alabama has seemingly never administered lethal injections through

the leg, it is within its protocol to do so.        Testimony on that subject would have

been equally relevant to the cases of every death-row inmate, since lethal injection

via the legs is something available for Appellees to use under their protocol in any

case, not just Hamm’s. The district court did not abuse its discretion by finding

that the testimony Hamm sought to elicit would have gone to a facial challenge

rather than Hamm’s as-applied challenge to the protocol.8

       Third, Hamm contends that even if he has not thus far proffered sufficient

evidence to justify an injunction, his failure to do so results from Appellees’

“sandbagging.” He argues that the rushed and incomplete nature of his challenge

arises from the fact that Appellees took six months to turn over his medical

records, an additional five months to disclose a redacted version of Alabama’s

lethal-injection protocol, and an additional month after that to update his medical

       8
          Appellees also submitted to this court a sworn affidavit—consistent with their
stipulation in the district court—asserting that it is within their capability to perform a lethal
injection via the legs (and that ultrasound equipment and an M.D. will be present for the
execution, regardless).
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records. Appellant Br. at 36-37. All of this obstruction, says Hamm, left the

district court with only three business days to find an independent medical

examiner, conduct a full medical examination, and hold a hearing. Id. at 36.

       We do not know what accounted for Appellees’ delay in turning over the

relevant documentation. And we are troubled by the significant length of the

delays. Nevertheless, on this record, we conclude that the process used by the

district court here resulted in a sufficient and neutral set of findings to ensure

Hamm will not face a constitutionally impermissible risk of pain and suffering.9

                                                 IV.

       Finally, Hamm argues the district court erred by denying his request for

additional safeguards, such as allowing his counsel to be present during the attempt

to gain venous access, a time limit and number limit on attempts to gain venous

access, and allowing his counsel to have a cell phone in the viewing room during

the execution with which to call the district court. Hamm argues that “[i]f a new

specialized protocol is allowed,” these additional measures are warranted under the

circumstances of his case to “ensure a constitutional execution.” As we have


       9
         Hamm also argues that as a result of Appellees’ delay, the district court appointed an
independent medical examiner not qualified to assess his viability for lethal injection because the
examiner was not “an anesthesiologist with regular experience in placing catheters and
performing central lines.” Appellant Br. at 40-41. But at the hearing on February 16, the district
court extensively detailed the examiner’s credentials and stated, “I am fully satisfied with [the
examiner’s] credentials, . . . expertise[,] . . . ability to answer the questions that I had concerning
Mr. Hamm’s general vein condition[,] and . . . ability to render that opinion timely.” Hr’g Tr.,
Feb. 16, 2018 at 11. We find no clear error in the district court’s ruling.
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explained, however, this case does not involve a “new specialized protocol.”

Therefore, as Hamm has framed his additional requests, they are moot.



                                            V.

       We conclude that the district court did not abuse its discretion when it ruled

that Hamm cannot show a significant likelihood that execution by intravenous

injection would violate his Eighth Amendment rights.10 Hamm has two peripheral

veins accessible for a lethal injection, and his central veins are likewise accessible

for a lethal injection. Finally, the conditions rendering the central veins accessible

in Hamm’s case—the availability of ultrasound equipment and an advanced

practitioner—exist here. We therefore affirm the district court’s denial of Hamm’s

motion for a preliminary injunction.

       AFFIRMED.




       10
           We need not decide whether the district court abused its discretion in finding no
irreparable injury absent an injunction.
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