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Sullivan v. Dugger

United States Court of Appeals, Eleventh Circuit
Nov 30, 1983
721 F.2d 719 (11th Cir. 1983)

Summary

holding that § 1983 is appropriate when an inmate challenges the method by which he is to be executed rather than "the fact or nature of his sentence or the state's right to execute him"

Summary of this case from Fierro v. Gomez

Opinion

No. 83-3696.

November 30, 1983.

Appeal from the United States District Court for the Middle District of Florida.

Before HILL, JOHNSON and HENDERSON, Circuit Judges.


ORDER

Plaintiff-Appellant Sullivan, through counsel, presented to this court his motion that the court enter a temporary restraining order, pursuant to Rule 65(b) Fed.R.Civ.P., prohibiting his execution under sentence of the Florida State courts. The motion was presented to this court orally by telephone call from attorneys in Atlanta and, in substantially the same form and language, by telephone call from attorneys in Jacksonville, Florida. Two judges on the panel were present in the court clerk's office where the motion was being received and recorded; the third judge was on an open telephone line from his chambers in Montgomery, Alabama. The recording of the motion was played back and, in case it was not clearly audible, the grounds of the motion were restated to the judge in Montgomery. Without interruption, the judges conferred and considered the motion.

Appellant had appeared before the United States District Court for the Middle District of Florida seeking temporary restraining order and a permanent injunction and appellant had filed a notice of appeal from adverse ruling by that court. The injunctive relief sought here was to prevent the carrying out of the sentence pending a trial on the merits.

The sole issue presented is appellant's contention that the carrying out of the appellant's death sentence by means of electrocution is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Appellant asserts this contention in an action brought against R.L. Dugger, Superintendent, Florida State Prison and Louie L. Wainwright, Secretary, Florida Department of Corrections. The action is brought under 42 U.S.C. § 1983 alleging the deprivation of a constitutional right under color of state law. Appellant does not challenge the fact or nature of his sentence or the state's right to execute him thus distinguishing this § 1983 action from one brought under 28 U.S.C. § 2254 (state habeas).

After due consideration consistent with the time available to the court, the motion is denied. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519, quoted in Gregg v. Georgia, 428 U.S. 153, 170, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859 (where the Supreme Court held that a New York statute providing for electrocution as the method for carrying out a sentence of capital punishment was constitutional); Spinkellink v. Wainwright, 578 F.2d 582, 616 (5th Cir. 1978).

The court's action was immediately transmitted by telephone to the attorneys who had presented the motion and counsel for adverse parties. This order is written confirmation of the order of court announced in that fashion.

The two oral presentations are considered as one motion. At about 10:15 a.m., the written motion with accompanying record material arrived in the clerk's office and was immediately reviewed. It presents the same issue as had been telephonically communicated. Therefore the two telephone communications and the written motions are considered as one motion and this order of denial covers the motion.


Summaries of

Sullivan v. Dugger

United States Court of Appeals, Eleventh Circuit
Nov 30, 1983
721 F.2d 719 (11th Cir. 1983)

holding that § 1983 is appropriate when an inmate challenges the method by which he is to be executed rather than "the fact or nature of his sentence or the state's right to execute him"

Summary of this case from Fierro v. Gomez

concluding that plaintiffs claim challenging the manner of his death by execution "does not challenge the fact or nature of his sentence or the state's right to execute him thus distinguishing this § 1983 action from one brought under 28 U.S.C. § 2254"

Summary of this case from Booker v. Murphy

denying motion for a TRO alleging that "the carrying out of appellant's death sentence by means of electrocution is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments"

Summary of this case from Ingram v. Ault

denying without discussion eighth-amendment challenge to electrocution

Summary of this case from McNair v. Haley

relying on Spinkellink and In Re Kemmler in holding that death by electrocution is not cruel and unusual punishment

Summary of this case from Funchess v. Wainwright
Case details for

Sullivan v. Dugger

Case Details

Full title:ROBERT AUSTIN SULLIVAN, PETITIONER-APPELLANT, v. R.L. DUGGER…

Court:United States Court of Appeals, Eleventh Circuit

Date published: Nov 30, 1983

Citations

721 F.2d 719 (11th Cir. 1983)

Citing Cases

State v. Black

The argument raised in the dissenting opinion has been uniformly and summarily rejected by both State and…

Fierro v. Gomez

This is a case in which the plaintiffs "[do] not challenge the fact or nature of [their] sentence or the…