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

____________________ No. 22-10064 ____________________

MATTHEW REEVES, Plaintiff-Appellee, versus COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, WARDEN, HOLMAN CORRECTIONAL FACILITY,

Defendants-Appellants. ____________________

Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:20-cv-00027-RAH ____________________ USCA11 Case: 22-10064 Date Filed: 01/26/2022 Page: 2 of 29

2 Opinion of the Court 22-10064 Before WILSON, JORDAN, and BRANCH, Circuit Judges. JORDAN, Circuit Judge: The Commissioner of the Alabama Department of Correc- tions (the Commissioner or the ADOC) and the Warden of Hol- man Correctional Facility (collectively, the defendants) appeal the district court’s order granting Matthew Reeves’ motion for a pre- liminary injunction under 42 U.S.C. § 1983 and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. They also seek a stay of the district court’s order. Following oral argument and a review of the record, we discern no abuse of discretion. We therefore affirm the district court’s grant of preliminary injunctive relief and deny the motion for a stay. I Mr. Reeves, who was sentenced to death in Alabama for murder, see Reeves v. State, 807 So. 2d 18, 23–24 (Ala. Crim. App. 2000), is presently incarcerated at Holman Correctional Facility. He is scheduled to be executed by lethal injection on January 27, 2022. 1

1 We granted habeas relief to Mr. Reeves on an ineffective assistance of counsel claim related to sentencing, but the Supreme Court reversed. See Reeves v. Comm’r, Ala. Dep’t of Corr., 836 F. App’x 733 (11th Cir. 2020), reversed sub nom., Dunn v. Reeves, 141 S. Ct. 2405 (2021). USCA11 Case: 22-10064 Date Filed: 01/26/2022 Page: 3 of 29

22-10064 Opinion of the Court 3

A Alabama Act 2018-353 went into effect on June 1, 2018. As the district court explained, the Act “grants death row inmates a single opportunity to elect that their execution be carried out by . . . nitrogen hypoxia, in lieu of Alabama’s default method, lethal injection.” D.E. 83 at 5 (internal citations omitted). See Ala. Code § 15-18-82.1(a). Inmates like Mr. Reeves, who were sentenced to death prior to the Act’s effective date, had until June 30, 2018, to elect nitrogen hypoxia in writing. See § 15-18-82.1(b)(2). The fail- ure to do so operates as waiver of that method of execution under Alabama law. See id. At some point between June 26, 2018, and the statutory deadline of June 30, 2018, Cynthia Stewart—who was then the Warden at Holman—obtained an election form created by the Fed- eral Defenders for the Middle District of Alabama and had it dis- tributed by Captain Jeff Emberton to every Holman death row in- mate. She did so at the “direction of someone above her at the ADOC.” D.E. 83 at 7. Inmates who wanted to elect that their ex- ecution be by nitrogen hypoxia rather than lethal injection were to sign, date, and return the form. See D.E. 70-5. Mr. Reeves made no election. On January 10, 2020, more than 22 months before his execu- tion date was set, Mr. Reeves filed suit against the Commissioner and the Warden, alleging that the ADOC and Holman were violat- ing his rights under the ADA in their enforcement and implemen- tation of Ala. Code § 15-18-82.1(b)(2). Mr. Reeves alleged that USCA11 Case: 22-10064 Date Filed: 01/26/2022 Page: 4 of 29