MEMORANDUM OPINION AND ORDER

KARON OWEN BOWDRE, District Judge.

As Chief Justice Roberts and Justice Alito have written, "because it is settled that capital punishment is constitutional, `[i]t necessarily follows that there must be a [constitutional] means of carrying it out.'" Glossip v. Gross, 135 S.Ct. 2726, 2732-33 (2015) (Alito, J.) (quoting Baze v. Rees, 553 U.S. 35, 47 (2008) (Roberts, C.J.) (plurality opinion)). Guided by that principle, the court has taken steps to ensure, as far as possible, that the execution of Doyle Lee Hamm meets constitutional standards.

Now, the court must rule on Plaintiff Doyle Hamm's request for a preliminary injunction enjoining Defendants from executing him using intravenous lethal injection. Mr. Hamm bears the burden of showing a substantial likelihood of success on the merits of his claim that Alabama's method of execution, as applied to him, "presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers." Glossip, 135 S. Ct. at 2737 (quotation marks omitted). If Mr. Hamm can make that showing, then he must identify "an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain." Id. (quotation marks and alterations omitted).

Mr. Hamm contends that his current medical condition, caused by years of intravenous drug use, hepatitis C, and untreated lymphoma, renders his veins severely compromised, and that any attempt to insert an intravenous catheter into his peripheral veins could result in numerous painful sticks and/or infiltration of the lethal drugs into the surrounding tissue, causing a painful and gruesome death. And he asserts that he suffers from untreated lymphadenopathy, which would hinder Alabama's alternative method of placing a central line into one of the major veins located in his groin, chest, or neck. He seeks, instead, to have the State execute him by "oral injection" using the drugs and a variation on the procedure set out in Oregon's Death with Dignity Act. See Or. Rev. Stat. §§ 127.800-127.897.

On February 6, 2018, this court denied Defendants' motion for summary judgment on Mr. Hamm's amended complaint and stayed his execution "for the purpose of obtaining an independent medical examination and opinion concerning the current state of Mr. Hamm's lymphoma, the number and quality of peripheral venous access, and whether any lymphadenopathy would affect efforts at obtaining central line access." (Doc. 31 at 2). Defendants appealed this court's order and on February 13, 2018, the Eleventh Circuit vacated the stay, holding that this court had not made "sufficient factual findings to establish a significant possibility of success on the merits." (Doc. 38 at 8). The Court directed this court "to immediately appoint an independent medical examiner and schedule an independent medical examination, and to thereafter make any concomitant factual findings—pursuant to a hearing or otherwise—by no later than Tuesday, February 20, 2018, at 5:00 p.m. Central Standard Time." (Id. at 11-12).

On February 15, 2018, the court appointed a physician as its independent medical examiner and ordered him to conduct a medical examination of Mr. Hamm, specifically the condition of his peripheral and central veins.1 (Doc. 48). The court ordered the physician to report to the court the results of that examination and to advise the court on the standard of care used to place a central line. (Id.). The physician conducted the examination on the same day, and attorneys from both sides observed the examination. The physician's examination included viewing Mr. Hamm's veins, palpating them, and using an ultrasound to view the internal veins, organs, and lymph nodes. See Appendix A (Medical Report). As the court had requested, the physician made an oral report to the court in the evening of February 15, shortly after finishing the examination.

The medical expert reported that Mr. Hamm has numerous accessible and usable veins in both his upper and lower extremities. But he stated that the peripheral veins in Mr. Hamm's upper extremities, while accessible, are smaller and more difficult to access. The veins in Mr. Hamm's lower extremities—particularly from his knees down—are palpable, visible, and easily accessible, and further, the accessible veins in Mr. Hamm's lower extremities are of sufficient size to accept a catheter and substantial flow of liquid. Although he observed nodes in Mr. Hamm's groin area, he found that they would not impede access to the femoral vein. He commented that Mr. Hamm has "zero lymphadenopathy." He concluded that all of Mr. Hamm's central and deep veins are clear. In short, the physician found no likely problems obtaining venous access on Mr. Hamm, particularly using the veins in his lower extremities. Because of the results of the examination, the court did not inquire as to the standard of care for starting a central line IV.

The next day, February 16, the court held a conference with the parties and counsel, which had originally been scheduled to have testimony concerning the Alabama Department of Corrections' lethal injection procedures. The court began the conference by relaying the oral report from the court's medical expert. The court advised the parties that the medical expert's report resolved the concerns regarding the status of Mr. Hamm's veins and lymphadenopathy. The court asked if Defendants would stipulate they would not attempt peripheral venous access in Mr. Hamm's upper extremities; they agreed to so stipulate.

The court then found that the medical evidence negated any need to delve further into Alabama's lethal injection protocol. Nothing about Mr. Hamm's condition, especially because of Defendants' stipulation, "presents a risk that [Alabama's current lethal injection protocol as applied to him] is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers." Glossip, 135 S. Ct. at 2737 (quotation marks omitted).

And given the medical expert's report that Mr. Hamm is not experiencing lymphadenopathy, the court determined that further inquiry into the procedure for obtaining central venous access would convert his as-applied challenge into a facial challenge to the lethal injection protocol. As the court found in its memorandum opinion on Defendants' motion for summary judgment, a facial challenge to Alabama's lethal injection protocol would be time-barred because such a claim accrued in 2002 and the statute of limitations on it expired in 2004. (See Doc. 30 at 13).

Mr. Hamm's counsel stated numerous objections on the record, which the court overruled.

The court promised counsel that it would forward the medical expert's report to them as soon as it received it. On February 19, 2018, the physician sent his written report to the court, and the court forwarded it to the parties.2 The written report elaborates on the physician's oral report to the court with more technical analysis of Mr. Hamm's veins. The written report determines that Mr. Hamm has accessible and usable veins in his upper and lower extremities. But it further 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. See Appendix A at 14.

The written report concludes:

Mr. Hamm has accessible peripheral veins in the following regions.

Id. The court accepts the medical expert's written report.

With the record now more fully developed concerning Mr. Hamm's medical condition, the court again considers whether he established the prerequisites for a preliminary injunction. "The same four-part test applies when a party seeks a preliminary injunction [as when a party seeks a stay of execution]." Grayson v. Warden, 869 F.3d 1204, 1239 n.90 (11th Cir. 2017). The movant must show that "(1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest."3 Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir. 2011).

As more fully stated on the record at the February 16 conference, the court finds that Mr. Hamm has failed to show a substantial likelihood of success on the merits or that he will suffer irreparable injury unless the injunction issues. Mr. Hamm based his as-applied complaint on the allegations that he lacks adequate peripheral veins to allow peripheral venous access, and that his lymphadenopathy would hinder central venous access. But, as the court stated on the record at the February 16 conference, based 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.

As a result, Mr. Hamm cannot show a substantial likelihood of success on the merits of his as-applied claim. For the same reasons, he cannot show that he will suffer irreparable injury without a preliminary injunction. Therefore the court DENIES Mr. Hamm's request for a preliminary injunction.

DONE and ORDERED.

APPENDIX A

I examined Mr. Doyle Hamm strictly with regards to his venous system, both deep and superficial in both upper and lower extremities. Mr Hamm was visually examined along with palpation of his veins. A ultrasound was performed to document the size and patency of his veins. Mr. Hamm's medical records, that were provided, were reviewed. He has a significant history of hepatitis C and lymphoma of the left orbit. He was previously examined on 1/3/18 by a CRNP with regards to venous access. He was found at that time, to have large straight saphenous veins in both lower extremities and both of his feet. He was documented as having visible veins in the right wrist as well. No cervical, supraclavicular or axillary lymphadenopathy was palpated.

The examination of his veins on 2/16/18 was performed in both a sitting as well as standing position. There were two parts to his examination. First, visual inspection along with palpation of both the left and right upper and lower extremities as well as the neck and feet. Second, a venous ultrasound examination of both the left and right upper and lower extremities, axillary, subclavian and jugular veins was performed.

Examination of the upper extremities:

Visual and Palpation. As can be seen from the Photos A and B, there are no prominent superficial veins on visual examination on the upper extremities including the left and right arm, forearm and hands. There are no prominent superficial veins visible that would support an IV of sufficient size to administer intravenous fluids. The examination included the palmar and volar aspects of the hand, wrist, forearm, the antecubital fossa and arms.

Ultrasound examination of the upper extremities. Technique: Using a 6.0-7.5 MHz probe, a real-time gray scale sonography was performed with and without transducer compression along the course of the basilic vein, the axillary vein, the subclavian vein and the internal jugular vein. Color doppler was also applied with and without distal compression maneuvers. Select spot images were saved. Ultrasound examination of the left and right antecubital fossa did reveal the basilic vein and it was readily visualized with ultrasound. These veins were of adequate size but would be very difficult to access without the use of ultrasound. See photos C and D.

The more proximal veins including the left and right axillary veins, the left and right subclavian veins and the left and right internal jugular veins were easily identified and compressible representing excellent flow and no proximal obstruction. There was no lymphadenopathy present in either left or right axilla, supraclavicular or cervical regions present on ultrasound. See photos E, F, G, H, I and J.

Visual and Palpation. It should be noted that both Mr. Hamm's lower extremities, left and right side, were hyperpigmented consistent with venous stasis. No edema in the lower extremities was seen. No secondary varicose veins were identified. The right leg has both an easily seen and palpable great saphenous vein which extends from just below the medial aspect of the right knee to anterior to the medial malleolus. The left leg has a great saphenous vein which is seen (not as easily as the right leg) and is palpable from just below the medial aspect of the left knee to anterior to the medial malleolus. See photos K and L.

Ultrasound examination. Technique: Using a 6.0-7.5 MHz probe, a real-time gray scale sonography was performed with and without transducer compression along the course of the femoral vein, the popliteal vein, the great saphenous vein and small saphenous vein. The examination was performed with the patient in the standing position. Doppler was also applied with and without distal compression maneuvers. Select spot images were saved.

Findings. Right side. The right great saphenous vein has venous valvular insufficiency.The right great saphenous vein measures 6.0 millimeters at the saphenofemoral junction, 5.8 millimeters at the mid thigh level, 4.7 millimeters at the knee level and 5.4 millimeters at the mid calf level.There were two lymph nodes identified at the level of the right groin but do not impede venous flow. The right small saphenous vein is competent. The right small saphenous vein measures 2.0 millimeters at the saphenopopliteal junction and 2.2 millimeters at the mid calf region. There is no evidence of deep venous thrombosis, reflux or obstruction in the deep venous system. There is no edema present. See photos N, O, P, Q, R and S.

Findings. Left side. The left great saphenous vein has venous valvular insufficiency. The left great saphenous vein measures 5.6 millimeter at the saphenofemoral junction, 3.4 millimeters at the mid thigh, 2.5 millimeters at the knee and 2.5 millimeters at the mid calf region. The left small saphenous vein is competent. The left small saphenous vein measures 4.2 millimeters at the saphenopopliteal junction and 3.4 millimeters at the mid calf region. There are no lymph nodes present in the left inguinal region. There is no evidence of deep venous thrombosis, reflux or obstruction in t the deep venous system. See photos T, U, V, and X.

In summary, Mr. Hamm has accessible peripheral 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.)

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.