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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 11, 2004
October 9, 2004
Charles R. Fulbruge III
IN THE UNITED STATES COURT OF APPEALS
Clerk
FOR THE FIFTH CIRCUIT
______________________
No. 04-70039
______________________
DONALD LOREN ALDRICH
Plaintiff-Appellant,
versus
GARY JOHNSON, Executive Director, Texas Department of Criminal
Justice, et. al.,
Defendants-Appellees.
____________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
Houston Division
_____________________________________________________
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:
Appellant Donald Aldrich appeals dismissal of his lawsuit
under 42 U.S.C. §1983 alleging violation of the Eighth and
Fourteenth Amendments challenging the constitutionality of Texas's
execution protocol. The district court dismissed Aldrich's action
for failure to state a claim upon which relief may be granted. We
1

AFFIRM the district court's dismissal of Aldrich's action on
alternate grounds.1
In Nelson v. Campbell, the Supreme Court first recognized a
capital defendant's right to challenge the method of his execution
under 28 U.S.C. §1983 even after the defendant's claims for habeas
relief had been denied.2 Because Aldrich does not meet the
requirements set forth in Nelson to be eligible for such relief,
however, we conclude that the district court properly dismissed his
claim.
In Nelson, the petitioner alleged that Alabama officials
proposed to use a "cut-down" procedure requiring an incision into
his arm or leg to access his severely compromised veins.3 The
respondent state officers conceded at oral argument that "§ 1983
[was] an appropriate vehicle for an inmate...not facing execution
to bring a `deliberate indifference' challenge to the
constitutionality of the cut-down procedure if used to gain venous
access for purposes of providing medical treatment."4 The Supreme
Court observed that there was "no reason on the face of the
1Judges Jones and Stewart would also affirm based on Harris
v. Johnson, 376 F.3d 414 (5th Cir. 2004), and on the exhaustion
of administrative remedies requirement of the Prison Litigation
Reform Act codified at 42 U.S.C. § 1997e(a).
2124 S. Ct. 2117 (2004).
3Id. at 2120.
4Id. at 2123.
2

complaint to treat petitioner's claim differently solely because he
had been condemned to die."5 Without reaching the question of how
to categorize method-of-execution claims generally, the Court
concluded that "[a] suit seeking to enjoin a particular means of
effectuating a sentence of death does not directly call into
question the `fact' or `validity' of the sentence itselfby simply
altering its method of execution, the State can go forward with the
sentence."6
Nelson had "been careful throughout the[] proceedings, in his
complaint and at oral argument, to assert that the cut-down, as
well as the warden's refusal to provide reliable information
regarding the cutdown protocol, [were] wholly unnecessary to
gaining venous access."7 Moreover, he had alleged alternatives
that, if they had been used, would have allowed the State to
proceed with the execution as scheduled.8 The Court concluded that
"[i]f on remand and after an evidentiary hearing the district court
conclude[d] that the use of the cut-down procedure...[was]
necessary for administering the lethal injection, the district
court [would] need to address the broader question, [left open by
5Id. at 2123.
6Id. at 2123
7Id. at 2124 (emphasis omitted).
8Id.
3

the Supreme Court], of how to treat method-of-execution claims
generally."9
Thus, the Court instructed that a court must "focus[]
attention on whether petitioner's challenge to the [execution
procedure] would necessarily prevent [the state] from carrying out
its execution."10 Consequently, if the petitioner seeks a stay of
his execution, the district court must decide the determinative
question of whether it is being requested to enjoin the execution,
rather than merely to enjoin an allegedly unnecessary medical
procedure that precedes the execution.
In the present case, Aldrich's § 1983 action challenges the
constitutionality of the protocol that Texas will use to execute
him, but he does not allege that there is any specific acceptable
alternative method that the state could use, or that the proposed
protocol is wholly unnecessary to the execution. Thus, contrary to
the situation in Nelson, Aldrich's § 1983 claim challenging the
constitutionality of that protocol and stay of its usage will
effectively prevent the state from carrying out his execution.
Nelson's holding clearly requires that a capital defendant, in
order to assert a §1983 method-of-execution claim, must allege
that, because there are alternative methods of execution, the
challenged protocol is wholly unnecessary to proceeding with the
9Id.
10Id. at 2125.
4

execution.11 Because Aldrich did not allege or show that there is
any alternative to the protocol that the State proposes to use in
his execution, the district court properly dismissed his §1983
action.
AFFIRMED.
11Id. at 2123-24.
5