WILSON, Circuit Judge, dissenting:

It is now clear that Rutherford is entitled to challenge the method by which

Florida seeks to execute him by presenting his claim under 28 U.S.C. § 1983. See

Hill v. McDonough, 547 U.S. ____, 126 S. Ct. 2096, 2101–04, 165 L. Ed. 2d 44

(2006). The Supreme Court remanded Rutherford’s case back to us for

reconsideration in light of its decision in Hill. Rutherford v. McDonough, 126 S.

Ct. 2915, 165 L. Ed. 2d 914 (2006) (mem.). Pursuant to the remand, the majority

agrees with the district court’s alternative ruling that Rutherford’s § 1983 claim

should not be heard because he should have brought it earlier. I disagree. I

continue to believe, as I noted in my earlier dissent, that the district court abused

its discretion by concluding that even if Rutherford’s § 1983 claim were

cognizable, his delay in bringing the claim precluded equitable relief. Rutherford

v. Crosby, 438 F.3d 1087, 1097–98 (11th Cir. 2006) (Wilson, J., dissenting)

(hereinafter Rutherford I). Because the factual basis for Rutherford’s claim only

recently came to light and because the legal basis for his claim was not in place

until six days before his scheduled execution, he did not unnecessarily delay in

The majority asserts that Rutherford was aware of the factual grounds for his claim as 1

early as 2000 when the state of Florida instituted lethal injection as a method of execution. That

year, the Florida Supreme Court evaluated the constitutionality of Florida’s lethal injection

protocols. See Sims v. State, 754 So. 2d 657 (Fla. 2000). The petitioner in Sims, however,

centered his argument on the pain and suffering that could occur if execution procedures were

not followed. Id. at 668. In this case, Rutherford alleges that even if carried out as planned, the

execution methods constitute cruel and unusual punishment. Rutherford bases his claim on

recent research published in a medical journal detailing the effects of the chemicals in lethal

injection. See Leonidas G. Koniaris, et al., Inadequate Anaesthesia in Lethal Injection for

Execution, 365 THE LANCET 1412 (Apr. 16, 2005). This research indicates that inmates may feel

the suffering of suffocation, the burning through the veins, and the pain of a heart attack due to

inadequate anaesthesia. Id. Though the factual basis for Rutherford’s claim may have been

known to him in April of 2005, the legal basis for his claim was not available until January 2006.

bringing his § 1983 action. 1

The district court’s determination that Rutherford unreasonably delayed the

filing of his claim was, in essence, an alternative basis for dismissing his case.

There was no semblance of a proper discussion or balancing of the equities of

Rutherford’s claim. The court did not apply the appropriate standard for a stay or

injunction under § 1983. Conspicuously absent from the district court’s order is

any discussion of the following four factors: (1) whether there is a substantial

likelihood of success on the merits; (2) whether the requested action is necessary

to prevent irreparable injury; (3) whether the threatened injury outweighs the harm

the stay or injunction would inflict upon the non-movant; and (4) whether the

requested action would serve the public interest. See Seigel v. Lepore, 234 F.3d

1163, 1176 (11th Cir. 2000) (per curiam). The district court obviously did not feel

the need to consider these four factors because it believed that Rutherford’s “claim

and request for relief [wa]s the functional equivalent of a successive habeas corpus

petition.” Rutherford I, 438 F.3d at 1102 (reprinting district court order as

appendix). We have learned from Hill that that belief was incorrect. 126 S. Ct. at

2101–04.

Without weighing the four factors, the district court erroneously concluded

that Rutherford unnecessarily delayed in bringing his claim, and thus deemed a

stay inappropriate. A “strong equitable presumption against the grant of a stay” is

appropriate only when “a claim could have been brought at such a time as to allow

consideration of the merits without the requiring of a stay.” Nelson v. Campbell,

541 U.S. 637, 650, 124 S. Ct. 2117, 2126, 158 L. Ed. 2d 924 (2004). Here, there

would have been little point in Rutherford bringing his claim any earlier than he

did. Prior to the Supreme Court’s decision in Hill, our precedent in Robinson v.

Crosby, 358 F.3d 1281 (11th Cir. 2004), would have required a district court to

treat Rutherford’s § 1983 claim as a successive habeas corpus petition. See id. at

1284. Thus, based on our prior precedent which has now been overruled, the

district court would have been correct to summarily dismiss it for lack of

jurisdiction. See id. It was not until the Supreme Court’s grant of certiorari in Hill

that Rutherford had reason to believe that his claim would be heard. Rutherford

filed his § 1983 claim on January 27, 2006, two days after the Supreme Court

granted certiorari in Hill. I see nothing in the record to suggest, as the majority

opines, that Rutherford “deliberately waited” to file his claim days before his

scheduled execution. Thus, the district court abused its discretion in applying a

“strong equitable presumption” against a stay. Furthermore, the district court’s

order only analyzed this issue as an afterthought on the premise that the court’s

first ground would be upheld.

The majority affirms the district court’s dismissal of Rutherford’s § 1983

action in an effort to “protect states from dilatory or speculative suits.” Hill, 126

S. Ct. at 2104. The majority concludes that a remand is unnecessary because the

district court already determined that Rutherford’s suit was dilatory. I do not read

Hill as giving license to the lower federal courts “to overlook all other

considerations that are called for in equity, which, after all, should be a recourse to

principles of justice and fairness to correct or supplement the law as applied to

particular circumstances.” Brown v. Livingston, 457 F.3d 390, 392 (5th Cir. 2006)

(Dennis, J., dissenting). Rather, “equity in cases of this nature requires courts to

consider the particular circumstances of each case and to examine them for

whether or not the challenge has been brought dilatorily or for improper purposes .

. . , and, if not, whether it should be allowed to proceed.” Id. The district court

did not consider Rutherford’s particular circumstances.

The majority also argues that its decision to affirm is compelled by the

result in the Hill case on remand. Hill v. McDonough, No. 06-14927, 2006 WL

2641659, (11th Cir. Sept. 15, 2006). Hill filed his § 1983 claim four days before

his execution with full knowledge that under this Circuit’s precedent, his claim

would be dismissed as a successive habeas petition. See Robinson, 358 F.3d at

1284. In fact, the district court dismissed Hill’s claim outright for lack of

jurisdiction, holding that Hill’s action was the functional equivalent of a

successive petition for a writ of habeas corpus filed without leave and, thus, ran

afoul of 28 U.S.C. § 2244(b). Hill v. Crosby, No. 4:06-CV-032-SPM, 2006 WL

167585, at *2–3 (N.D. Fla. Jan. 21, 2006). Following our precedent in Robinson,

358 F.3d 128, and In re Provenzano, 215 F.3d 1233 (11th Cir. 2000), we

summarily affirmed the district court and denied Hill’s application for a stay of his

execution pending appeal. Hill v. Crosby, 437 F.3d 1084, 1085 (11th Cir. 2006)

(per curiam). Against the odds, the U.S. Supreme Court granted certiorari in Hill’s

case. Hill v. Crosby, 546 U.S. __, 126 S. Ct. 1189, 1190, 163 L. Ed. 2d 1144

(2006) (mem.).

Hill’s case is materially different from Rutherford’s. Hill filed a highly

speculative suit as a last ditch effort to stall his execution. Nothing in our circuit

precedent, or Supreme Court precedent, provided a basis for a § 1983 challenge to

Hill’s method of execution. On the other hand, when Rutherford filed his § 1983

claim, the legal landscape had fundamentally changed. A grant of certiorari by the

Supreme Court, obviously, does not change our Circuit law, but it does call that

law into question. Only after the Supreme Court’s grant of certiorari in Hill,

which presented the same issues Rutherford faced, did Rutherford have reason to

believe that his claim would be heard. The majority suggests that it “cannot be the

law” that Rutherford could benefit from precedent established by Hill’s efforts.

Again, I disagree. Litigants benefit from the efforts of prior litigants who shape

the law every day. That is precisely why the Supreme Court remanded this case

back to us for reconsideration – because Hill forged new precedent.

Nothing in the record suggests that Rutherford filed his claim solely in an

attempt to delay his impending execution. In fact, the record compels the opposite

conclusion. Since Rutherford filed his § 1983 claim, he has vigorously pursued

that claim and urged the courts at all stages to give him an evidentiary hearing on

the merits. For example, Rutherford urged us to remand his case to the district

court post-Hill for further proceedings on the merits despite the fact that no death

warrant was pending and his execution was not imminent. Furthermore, once his

second death warrant had been signed and his execution date set, he petitioned the

U.S. Supreme Court for a writ of mandamus in an effort to compel us to remand

his case to the district court for a hearing. These circumstances contradict the

majority’s assertion that his § 1983 claim is merely as a delay tactic and instead

demonstrate that Rutherford has sought and continues to seek a full and fair

hearing on the merits of his constitutional challenge to Florida’s lethal injection

protocol. I am simply not persuaded by the view of the majority that Rutherford’s

sole intent is to buy more time on death row, rather than to force the State to

execute him in compliance with the Constitution.

Certainly, the State and its victims have an “important interest in the timely

enforcement of a sentence,” but this interest must be balanced against the

constitutional right of a death row inmate to be executed in a manner consistent

with the requirements of the Constitution. Recent developments in medical

research have called into question the degree of pain and suffering caused by the

method of lethal injection some states, including Florida, use. See Leonidas G.

Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365

THE LANCET 1412 (Apr. 16, 2005). To date, most lower courts have avoided

squarely addressing whether execution by this three-drug protocol violates the

Eighth Amendment, thus preventing review by the United States Supreme Court.

See, e.g., Hill, 2006 WL 2641659; Robinson, 358 F.3d 1281; Brown v. Crawford,

408 F.3d 1027 (8th Cir. 2005) (per curiam); Bieghler v. State, 839 N.E.2d 691

A court in the Northern District of California is currently hearing expert testimony 2

regarding a challenge to California’s lethal injection protocols, which are materially similar to

Florida’s procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006). Rutherford

deserves the same opportunity. Consequently, I would grant Rutherford’s Application for a Stay

of Execution, permitting him to return to the district court for a hearing on the merits of his §

1983 claim.

(Ind. 2005). But see Walker v. Johnson, No. 1:05-CV-934 CMH TRJ, 2006 WL

2619857 (E.D. Va. Sept. 11, 2006) (dismissing inmate’s § 1983 claim which relied

on risks of deviation from execution protocol).

Rutherford does not challenge the validity of his sentence, rather the method

in which the State seeks to carry it out. Rutherford’s challenge, even if successful,

does not foreclose his execution. He will be put to death for his crime. But,

because Rutherford presents a legitimate claim that the lethal injection protocol

that awaits him may constitute cruel and unusual punishment, which the Eighth

Amendment forbids, and because the district court failed to engage in a full and

proper analysis of the equities in Rutherford’s case, I would reverse the district

court’s decision and remand for a hearing on the merits of his § 1983 claim.2