[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-12242 Non-Argument Calendar ____________________

JAMES EDWARD BARBER, Plaintiff-Appellant, versus GOVERNOR OF THE STATE OF ALABAMA, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, WARDEN, HOLMAN CORRECTIONAL FACILITY, ATTORNEY GENERAL, STATE OF ALABAMA, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, USCA11 Case: 23-12242 Document: 27-1 Date Filed: 07/19/2023 Page: 2 of 70

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Defendants-Appellees.

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Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:23-cv-00342-ECM ____________________

Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges. BRANCH, Circuit Judge: James Edward Barber is an Alabama death row inmate scheduled to be executed by lethal injection on July 20, 2023. On May 25, 2023, Barber filed a 42 U.S.C. § 1983 complaint asserting that the manner in which Alabama executes its lethal injection protocol violates the Eighth Amendment’s prohibition against cruel and unusual punishments. Specifically, he takes issue with the manner in which the execution team attempted to secure IV access1 in the inmates during the preceding three executions that

1 It is undisputed that a central component of Alabama’s lethal injection protocol is establishing IV access to the inmate’s veins so that the necessary drugs can be administered. See Redacted Execution Procedures (March 2023) ANNEX C (attached as Exhibit B to complaint). The protocol requires that “two (2) intravenous infusion devices [be] placed in veins of the condemned inmate” by the “IV Team.” Id. All members of the IV Team must “be currently certified or licensed within the United States.” Id. The protocol further provides that “[t]he standard procedure for inserting IV access will be used. If the condemned inmate’s veins make obtaining venous access difficult USCA11 Case: 23-12242 Document: 27-1 Date Filed: 07/19/2023 Page: 3 of 70

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occurred in 2022, two of which were canceled due to the execution team’s inability to secure the necessary IV access after making numerous attempts over an extended period of time. Despite the fact that Alabama has since conducted a full review of its execution procedures, Barber maintains that there is no evidence that the issues “that derailed the prior executions” have been fixed, and that he is at substantial risk of serious harm and “torture” because he “will likely be repeatedly punctured for hours with needles all over his body” while the execution team attempts to gain IV access. Relatedly, Barber filed a motion for a preliminary injunction on the same grounds seeking to enjoin Alabama from executing him by any method other than nitrogen hypoxia.2 Following additional briefing and an evidentiary hearing, the district court denied the motion.

or problematic, qualified medical personnel may perform a central li