Nance v. Ward

P R E L I M I N A R Y P R I N T
Volume 597 U. S. Part 1
Pages 159–178
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T H E S U P R E M E C O U R T
June 23, 2022
REBECCA A. WOMELDORF
reporter of decisions
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159
Syllabus
NANCE v. WARD, COMMISSIONER, GEORGIA
DEP
ARTMENT OF CORRECTIONS, et al.
certiorari to the united states court of appeals for
the eleventh circuit
No. 21–439. Argued April 25, 2022—Decided June 23, 2022
A prisoner who challenges a State's proposed method of execution under
the Eighth Amendment must identify a readily available alternative
method that would signifcantly reduce the risk of severe pain. If the
prisoner proposes a method already authorized under state law, the
Court has held that his claim can go forward under 42 U. S. C. § 1983,
rather than in habeas. See Nelson v. Campbell, 541 U. S. 637, 644–
647. But the prisoner is not confned to proposing a method already
authorized under state law; he may ask for a method used in other
States. See Bucklew v. Precythe, 587 U. S. –––, –––. The question pre-
sented is whether a prisoner who does so may still proceed under § 1983.
Petitioner Michael Nance brought suit under § 1983 to enjoin Georgia
from using lethal injection to carry out his execution. Lethal injection
is the only method of executi on that Georg ia law now authori zes.
Nance alleges that applying that method to him would create a substan-
tial risk of severe pain. As an alternative to lethal injection, Nance
proposes death by fring squad—a method currently approved by four
other States. The District Court dismissed Nance's § 1983 suit as un-
timely. The Eleventh Circuit rejected it for a different reason: that
Nance should have advanced his method-of-execution claim by way of a
habeas petition rather than a § 1983 suit. A habeas petition, that court
stated, is appropriate when a prisoner seeks to invalidate his death sen-
tence. And the Eleventh Circuit thought that was what Nance was
doing. It asserted that Georgia law—which again, only authorizes exe-
cution by lethal injection—had to be taken as “fxed.” 981 F. 3d 1201,
1211. Under that “fxed” law, the court said, enjoining Georgia from
executing Nance by lethal injection would mean that he could not be
executed at all. The court therefore “reconstrued” Nance's § 1983 com-
plaint as a habeas petition. Id., at 1203. Having done so, the court
then dismissed Nance's petition as “second or successive,” because he
had previously sought federal habeas relief. 28 U. S. C. § 2244(b).
Held: Section 1983 remains an appropriate vehicle for a prisoner's method-
of-execution claim where, as here, the prisoner proposes an alternative
method not authorized by the State's death-penalty statute.

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ANCE v. WARD
Syllabus
Both § 1983 and the federal habeas statute enable a prisoner to com-
plai
n of “unconstitutional treatment at the hands of state offcials.”
Heck v. Humphrey, 512 U. S. 477, 480. A prisoner may generally sue
under § 1983, unless his claim falls into that statute's “implicit excep-
tion” for actions that lie “within the core of habeas corpus.” Wilkinson
v. Dotson, 544 U. S. 74, 79. When a prisoner seeks relief that would
“necessarily imply the invalidity of his conviction or sentence,” he comes
within the core and must proceed in habeas. Heck, 512 U. S., at 487.
The Court has tw ice held that prisoners could bri ng method-of-
execution claims under § 1983. See Nelson, 541 U. S., at 644–647; Hill
v. McDonough, 547 U. S. 573, 580–583. Although these cases predated
the Court's requirement that prisoners identify alternative methods of
execution, each prisoner had still said enough to leave the Court con-
vinced that alternatives to the challenged procedures were available.
See Nelson, 541 U. S., at 646; Hill, 547 U. S., at 580–581. Because alter-
natives were available, the prisoners' challenges would not “necessarily
prevent [the State] from carrying out [their] execution[s].” Nelson, 541
U. S., at 647 (emphasis in original); see Hill, 547 U. S., at 583. That
made § 1983 a proper vehicle.
In Nelson and Hill, the Court observed that using a different method
required only a change in an agency's uncodifed protocol. Here, Geor-
gia would have to change its statute to carry out Nance's execution by
fring squad. Except for that fact, this case would even more clearly
than Nelson and Hill be ft for § 1983. Since those cases, the Court has
required a prisoner bringing a method-of-execution claim to propose an
alternative way of carrying out his death sentence. Thus, an order
granting the prisoner relief does not, as required for habeas, “necessar-
ily prevent” the State from implementing the execution. Nelson, 541
U. S., at 647 (emphasis in original). Rather, the order gives the State
a pathway forward.
That remains true even where, as here, the proposed alternative is
one unauthorized by present state law. Nance's requested relief still
places his execution in Georgia's control. If Georgia wants to carry out
the death sentence, it can enact legislation approving what a court has
found to be a fairly easy-to-employ method of execution. Although that
may take more time and effort than changing an agency protocol, Hill
explained that the “incidental delay” involved in changing a procedure
is irrelevant to the vehicle question—which focuses on whether the re-
quested relief would “necessarily” invalidate the death sentence. 547
U. S., at 583. And anyway, Georgia has given no reason to think that
passing new legislation would be a substantial impediment.
The Court of Appeals could reach the contrary conclusion only by
wrongly treating Georgia's statute as immutable. In its view, granting

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161
Syllabus
Nance relief would necessarily imply the invalidity of his death sentence
because
Georgia law must be taken as “fxed.” 981 F. 3d, at 1211. But
one of the “main aims” of § 1983 is to “override”—and thus compel
change of—state laws when necessary to vindicate federal constitutional
rights. Monroe v. Pape, 365 U. S. 167, 173. Indeed, courts not uncom-
monly entertain prisoner suits under § 1983 that may, if successful, re-
quire changing state law.
Under the contrary approach, the federal vehicle for bringing a fed-
eral method-of-execution claim would depend on the vagaries of state
law. Consider how Nance's claim would fare in different States. In
Georgia (and any other State with lethal injection as the sole authorized
method), he would have to bring his claim in a habeas petition. But in
States authorizing other methods when a court holds injection unlawful,
he could fle a § 1983 suit. It would be strange to read state-by-state
discrepancies into the Court's understanding of how § 1983 and the ha-
beas statute apply to federal constitutional claims. That is especially
so because the use of the vehicles can lead to different outcomes: An
inmate in one State could end up getting his requested relief, while an
inmate in another might have his case thrown out.
The approach of the Court of Appeals raises one last problem: It
threatens to undo the commitment this Court made in Bucklew. The
Court there told prisoners they could identify an alternative method not
“presently authorized” by the executing State's law. 587 U. S., at –––.
But under the approach of the Court of Appeals, a prisoner who pre-
sents an out-of-state alternative is relegated to habeas—and once there,
he will almost inevitably collide with the second-or-successive bar.
That result, precluding claims like Nance's, would turn Bucklew into
a sham.
Finally, recognizing that § 1983 is a good vehicle for a claim like
Nance's does not countenance “last-minute” claims to forestall an execu-
tion. Id., at –––. Courts must consider delay in deciding whether to
grant a stay of execution, and outside the stay context, courts have tools
to streamline § 1983 actions and protect a sentence's timely enforcement.
Pp. 167–175.
981 F. 3d 1201, reversed and remanded.
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Breyer, Sotomayor, and Kavanaugh, JJ., joined. Barrett, J.,
fled a dissenting opinion, in which Thomas, Alito, and Gorsuch, JJ.,
joined, post, p. 175.
Matthew S. Hellman argued the cause for petitioner.
With him on the briefs were Laurie Webb Daniel, Matthew

162 N
ANCE v. WARD
Opinion of the Court
D. Friedlander, Anna M. Arceneaux, Cory H. Isaacson,
Da
vid A. Strauss, and Sarah M. Konsky.
Masha G. Hansford argued the cause for the United States
as amicus curiae supporting petitioner. With him on the
brief were Solicitor General Prelogar, Principal Deputy
Assistant Attorney General Boynton, Deputy Solicitor Gen-
eral Feigin, and Michael S. Raab.
Stephen J. Petrany, Solicitor General of Georgia, argued
the cause for respondents. With him on the brief were
Christopher M. Carr, Attorney General, Ross W. Bergethon
and Drew F. Waldbeser, Deputy Solicitors General, Beth A.
Burton, Deputy Attorney General, Sabrina D. Graham, Se-
nior Assistant Attorney General, and Clint C. Malcom, As-
sistant Attorney General.*
Justice Kagan delivered the opinion of the Court.
In several recent decisions, this Court has set out rules
for challenging a State's proposed method of execution under
the Eighth Amendment. To prevail on such a claim, a pris-
oner must identify a readily available alternative method of
*Briefs of amici curiae urging reversal were fled for the American
Civil Liberties Union et al. by David D. Cole, David C. Fathi, Catherine
E. Stetson, Allison M. Wuertz, Brian W. Stull, Cassandra Stubbs, Jennesa
Calvo-Friedman, Brandon J. Buskey, Sean J. Young, and John W. White-
head; and for Legal Scholars by Bruce H. Schneider.
Briefs of amici curiae urging affrmance were fled for the State of
Texas et al. by Ken Paxton, Attorney General of Texas, Brent Webster,
First Assistant Attorney General, Judd E. Stone II, Solicitor General, La-
nora C. Pettit, Principal Deputy Solicitor General, and Kathryn M.
Cherry, Assistant Solicitor General, and by the Attorneys General for
their respective States as follows: Steve Marshall of Alabama, Mark
Brnovich of Arizona, Leslie Rutledge of Arkansas, Ashley Moody of Flor-
ida, Lawrence G. Wasden of Idaho, Todd Rokita of Indiana, Daniel Cam-
eron of Kentucky, Jeff Landry of Louisiana, Lynn Fitch of Mississippi,
Austin Knudsen of Montana, Doug Peterson of Nebraska, John O'Connor
of Oklahoma, Jason Ravnsborg of South Dakota, and Sean D. Reyes of
Utah; and for Jonathan F. Mitchell et al. by Adam K. Mortara and
Mr. Mitchell, both pro se.
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Opinion of the Court
execution that would signifcantly reduce the risk of severe
pai
n. In doing so, the prisoner is not confned to proposing
a method authorized by the executing State's law; he may
instead ask for a method used in other States. See Bucklew
v. Precythe, 587 U. S. –––, ––– (2019).
This case concerns the procedural vehicle appropriate for
a prisoner's method-of-execution claim. We have held that
such a claim can go forward under 42 U. S. C. § 1983, rather
than in habeas, when the alternative method proposed is al-
ready authorized under state law. See Nelson v. Campbell,
541 U. S. 637, 644–647 (2004). Here, the prisoner has identi-
fed an alternative method that is not so authorized. The
question presented is whether § 1983 is still a proper vehicle.
We hold that it is.
I
A
States choosing to impose capital punishment have over
time sought out “more humane way[s] to carry out death sen-
tences.” Glossip v. Gross, 576 U. S. 863, 868 (2015). In the
27 States with the death penalty, lethal injection is by far
the most common method of execution. See ibid. Fifteen
States, including Georgia, authorize only the use of lethal
injection.
1
Nine States authorize lethal injection plus one
or more other specifed methods; of those (to use an example
relevant here), four approve the fring squad.
2
And three
1
Ariz. Rev. Stat. Ann. § 13–757(A) (2020); Ga. Code Ann. § 17–10–38(a)
(2020); Idaho Code Ann. § 19–2716 (2017); Ind. Code § 35–38–6–1(a) (2021);
Kan. Stat. Ann. § 22–4001(a) (2007); La. Rev. Stat. Ann. § 15:569(B) (West
2022); Mont. Code Ann. § 46–19–103(3) (2021); Neb. Rev. Stat. § 83–964
(2020 Cum. Supp.); Nev. Rev. Stat. § 176.355(1) (2017); N. C. Gen. Stat.
Ann. § 15–188 (2021); Ohio Rev. Code Ann. § 2949.22(A) (Lexis 2021); Ore.
Rev. Stat. § 137.473(1) (2021); 61 Pa. Cons. Stat. § 4304(a) (2015 Special
Edition); S. D. Codifed Laws § 23A–27A–32 (2016); Tex. Code Crim. Proc.
Ann., Art. § 43.14(a) (Vernon 2018).
2
Mississippi, Oklahoma, South Carolina, and Utah authorize the fring
squad among other methods of execution. H. B. 1479, 2022 Leg., Reg.
Sess. (Miss.); Okla. Stat., Tit. 22, § 1014 (2020 Supp.); S. C. Code Ann. § 24–
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ANCE v. WARD
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States provide that if their authorized methods (including
letha
l injection) are found unconstitutional, then they may
carry out a death sentence by any constitutional means.
3
A death row inmate may attempt to show that a State's
planned method of execution, either on its face or as applied
to him, violates the Eighth Amendment's prohibition on
“cruel and unusual” punishment. To succeed on that claim,
the Court held in Glossip, he must satisfy two requirements.
First, he must establish that the State's method of execution
presents a “substantial risk of serious harm”—severe pain
over and above death itself. Id., at 877. Second, and more
relevant here, he “must identify an alternative [method] that
is feasible, readily implemented, and in fact signifcantly re-
duce[s]” the risk of harm involved. Ibid. (internal quotation
marks omitted). Only through a “comparative exercise,” we
have explained, can a judge “decide whether the State has
cr uelly `superadded' pain to the punishment of death. ”
Bucklew, 587 U. S., at –––.
In identifying an alternative method, the Court in Buck-
lew held, an inmate is “not limited to choosing among those
presently authorized by a particular State's law.” Id., at
–––. The pr isoner may, for example, “poi nt to a wel l-
established protocol in another State as a potentially viable
option.” Ibid. The Eighth Amendment, Bucklew ex-
plained, “is the supreme law of the land, and the comparative
assessment it requires can't be controlled by the State's
choice of which methods to authorize.” Id., at –––; see
Arthur v. Dunn, 580 U. S. 1141, 1147–1149 (2017) (Sotomayor,
3–530 (2021 Cum. Supp.); Utah Code § 77–18–113 (2021). The rest of the
States in this bucket most commonly authorize electrocution or lethal gas.
See Ark. Code Ann. §§ 5–4–617(a), (l) (Supp. 2021); Cal. Penal Code Ann.
§ 3604(a) (West Supp. 2022); Ky. Rev. Stat. Ann. §§ 431.220(1)(a), 431.223
(Lexis 2021); Mo. Rev. Stat. § 546.720(1) (2016); Wyo. Stat. Ann. § 7–13–
904 (2021).
3
Ala. Code § 15–18–82.1(c) (2018); Fla. Stat. § 922.105(3) (2018); Tenn.
Code Ann. § 40–23–114(d) (2018).
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J., dissenting from denial of certiorari). In addition, Buck-
l
ew stated, allowing an inmate to propose a method not au-
thorized by the State keeps his “burden” within reasonable
bounds. 587 U. S., at –––. Because the inmate can look be-
yond the State's current law, we saw “little likelihood” that
he would “be unable to identify an available alternative.”
Id., at –––; see id., at ––– (Kavanaugh, J., concurring).
B
While trying to fee a bank robbery, petitioner Michael
Nance shot and killed a bystander. A Georgia jury con-
victed Nance of murder, and the trial court sentenced him
to death. Nance challenged his conviction and sentence—
frst on direct appeal, next in state collateral proceedings,
and fnally in federal habeas—but without success.
Nance later brought suit under § 1983 to enjoin Georgia
from using lethal injection to carry out his death sentence.
As stated above, lethal injection is the only method of execu-
tion Georgia law now authorizes. See supra, at 163.
4
In his
complaint, Nance alleges that applying that method to him
would create a substantial risk of severe pain. See App. to
Pet. for Cert. 86a. According to Nance, his veins are “se-
verely compromised and unsuitable for sustained intrave-
nous access.” Ibid. They are, Nance says, likely to “blow”
during the execution, “leading to the leakage of the lethal
injection drug into the surrounding tissue” and thereby caus-
ing “intense pain and burning.” Ibid. On top of that,
Nance asserts, his longtime use of a prescription drug for
back pain creates a risk that the sedative used in the State's
lethal injection protocol will fail to “render him unconscious
and insensate.” Ibid. Nance proposes, as a “readily avail-
able alternative” method of execution, “death by fring
4
See Ga. Code Ann. § 17–10–38(a) (“All persons who have been convicted
of a capital offense and have had imposed upon them a sentence of death
shall suffer such punishment by lethal injection”).

166 N
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squad.” Ibid. As noted earlier, four other States have ap-
proved
that method. See supra, at 163, and n. 2. Use of a
fring squad, Nance says, will lead to “swift and virtually
painless” death. App. to Pet. for Cert. 102a. And imple-
menting that method, he says, would be simple: Georgia has
enough qualifed personnel and could borrow specifc proto-
cols from another State. Ibid.
After the District Court dismissed Nance's suit as un-
timely, the Court of Appeals for the Eleventh Circuit re-
jected it for a different reason—that Nance had used the
wrong procedural vehicle. In the panel majority's view,
Nance should have brought his method-of-execution claim by
way of a habeas petition rather than a § 1983 suit. A habeas
petition, the court stated, is appropriate when a prisoner
seeks to “invalidate” a death sentence. 981 F. 3d 1201, 1209
(2020). And the court thought that was what Nance was
doing: The injunction he requested, preventing the use of
lethal injection, “necessarily impl[ies] the invalidity of his
death sentence.” Id., at 1203. That was so, the court rea-
soned, because Georgia law “must [be taken] as fxed”—and
under that “fxed” law, if Nance could not be executed by
lethal injection, then he could not be executed at all. Id., at
1211. The court therefore “reconstrued” Nance's complaint
as a habeas petition. Id., at 1203. And having done so, the
court dismissed the petition as “second or successive” be-
cause Nance had already sought federal habeas relief. 28
U. S. C. § 2244(b); see supra, at 165. Judge Martin dis-
sented, arguing that Nance could proceed under § 1983. In
her view, Nance was not challenging his death sentence; all
he wanted was an order telling “the State to execute him
by a different method.” 981 F. 3d, at 1215. The Eleventh
Circuit denied Nance's petition for rehearing en banc over
the dissent of three judges. See 994 F. 3d 1335 (2021).
We granted certiorari, 595 U. S. ––– (2022), and now
reverse.
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II
Th
is Court has often considered, when evaluating state
prisoners' constitutional claims, the dividing line between
§ 1983 and the federal habeas statute. Each law enables a
prisoner to complain of “unconstitutional treatment at the
hands of state offcials.” Heck v. Humphrey, 512 U. S. 477,
480 (1994). But there the resemblance stops. The habeas
statute contains procedural requirements (like the second-
or-successive rule) nowhere found in § 1983; the former stat-
ute may therefore require dismissal of a claim when the
latter statute would not. See id., at 480–481. Still more
pertinent here, the scope of the two laws also differs. Sec-
tion 1983 broadly authorizes suit against state offcials for
the “deprivation of any rights” secured by the Constitution.
Read literally, that language would apply to all of a prison-
er's constitutional claims, thus swamping the habeas stat-
ute's coverage of claims that the prisoner is “in custody in
violation of the Constitution.” 28 U. S. C. § 2254(a); see Wil-
kinson v. Dotson, 544 U. S. 74, 78–79 (2005). So we have
not read § 1983 literally in the prisoner context. To the con-
trary, we have insisted that § 1983 contains an “implicit
exception” for actions that lie “within the core of habeas cor-
pus.” Id., at 79.
In defning that core, this Court has focused on whether a
claim challenges the validity of a conviction or sentence.
See Preiser v. Rodriguez, 411 U. S. 475, 489 (1973). The
simplest cases arise when an inmate, alleging a faw in his
conviction or sentence, seeks “immediate or speedier re-
lease” from prison. Heck, 512 U. S., at 481. The analogue
in the capital punishment context, also clear-cut, is when an
inmate seeks to overturn his death sentence, thus preventing
the State from executing him. Slightly less obvious, this
Court has held that an inmate must proceed in habeas when
the relief he seeks would “necessarily imply the invalidity of
his conviction or sentence.” Id., at 487 (barring § 1983 suits
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for money damages when prevailing would imply a convic-
ti
on was wrongful). In doing so, though, we have under-
scored that the implication must be “necessar[y].” Wilkin-
son, 544 U. S., at 81 (emphasis in original); see Nelson, 541
U. S., at 647. On the opposite end of the spectrum, the
Court has held that a prison-conditions claim may be brought
as a § 1983 suit. See Preiser, 411 U. S., at 498–499. Such
a suit—for example, challenging the adequacy of a prison's
medical care—does not go to the validity of a conviction or
sentence, and thus falls outside habeas's core.
In Nelson v. Campbell and Hill v. McDonough, this Court
held two method-of-execution claims to fall on the § 1983 side
of the divide. See Nelson, 541 U. S., at 644–647; Hill, 547
U. S. 573, 580–583 (2006). Both cases involved challenges to
a State's lethal injection protocol—the frst to the use of a
“cut-down” procedure to access the prisoner's veins, the sec-
ond to a particular three-drug sequence. The cases pre-
dated our requirement that prisoners identify alternative
methods, but each prisoner had said enough to leave the
Court convinced that alternatives to the challenged proce-
dures were available. See Nelson, 541 U. S., at 646; Hill,
547 U. S., at 580–581. And that made the difference in both
cases. A claim should go to habeas, the Court held, only if
granting the prisoner relief “would necessarily prevent [the
State] from carrying out its execution.” Nelson, 541 U. S.,
at 647 (emphasis in original); see Hill, 547 U. S., at 583.
5
In
neither case would it have done so. Each prisoner had
asked only for a change in implementing the death penalty,
and an order granting that relief would not prevent the State
5
In both cases, the Court made clear that its formulation (again, would
granting relief necessarily prevent the execution) merely adapted to the
capital punishment context the question the Court had formerly asked in
choosing between § 1983 and habeas: Would granting relief necessarily
imply the invalidity of a conviction or sentence? See Nelson, 541 U. S.,
at 646; Hill, 547 U. S., at 583; supra, at 167–168.
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from executing him. So the claims could proceed under
§
1983.
Both Nelson and Hill, though, reserved the question at
issue here: whether the result should be different when a
State's death-penalty statute does not authorize the alterna-
tive method of execution. See Nelson, 541 U. S., at 645;
Hill, 547 U. S., at 580. In each case, the Court observed
that using a different method required no change in the
State's statute, but only a change in an agency's uncodifed
protocols. Here, all parties agree that Georgia would have
to change its statute to carry out Nance's execution by means
of a fring squad. They dispute whether that fact switches
Nance's claim to the habeas track.
Except for the Georgia statute, this case would even more
clearly than Nelson and Hill be ft for § 1983. Since those
two cases, we have compelled a prisoner bringing a method-
of-execution claim to propose an alternative way for the
State to carry out his death sentence. He must, we have
said, present a “proposal” that is “suffciently detailed” to
show that an alternative method is both “feasible” and
“readily implemented.” Bucklew, 587 U. S., at –––; see
supra, at 164. In other words, he must make the case that
the State really can put him to death, though in a different
way than it plans. The substance of the claim, now more
than ever, thus points toward § 1983. The prisoner is not
challenging the death sentence itself; he is taking the valid-
ity of that sentence as a given. And he is providing the
State with a veritable blueprint for carrying the death sen-
tence out. If the inmate obtains his requested relief, it is
because he has persuaded a court that the State could readily
use his proposal to execute him. The court's order therefore
does not, as required for habeas, “necessarily prevent” the
State from carrying out its execution. Nelson, 541 U. S., at
647 (emphasis in original). Rather, the order gives the
State a pathway forward.
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That remains true, we hold today, even if the alternative
route
necessitates a change in state law. Nance's requested
relief still places his execution in Georgia's control. Assum-
ing it wants to carry out the death sentence, the State can
enact legislation approving what a court has found to be
a fairly easy-to-employ method of execution. To be sure,
amending a statute may require some more time and effort
than changing an agency protocol, of the sort involved in
Nelson and Hill. But in Hill, we explained that the “inci-
dental delay” involved in changing a procedure—which even
when uncodifed may take some real work
6
—is not relevant
to the vehicle question. 547 U. S., at 583. Instead, that in-
quiry (as described earlier) focuses on whether the requested
relief would “necessarily” invalidate, or foreclose the State
from implementing, the death sentence. Ibid.; see supra,
at 167–168. And anyway, Georgia has given us no reason to
think that the amendment process would be a substantial
impediment. The State has legislated changes to its execu-
tion method several times before. See Dept. of Corrections,
Offce of Planning and Analysis, A History of the Death Pen-
alty in Georgia: Executions by Year 1924–2014 (Jan. 2015)
(describing how Georgia moved from hanging to electrocu-
tion to lethal injection). Other States have regularly done
the same, often in an effort to make executions more hu-
mane. See S. Banner, The Death Penalty: An American
History 296–297 (2002); see supra, at 163–164. That Nance's
claim would require such action does not turn it from one
contesting a method of execution into one disputing the un-
derlying death sentence.
The Court of Appeals could reach the contrary conclusion
only by wrongly treating Georgia's statute as immutable.
Recall the court's reasoning: Granting Nance relief would
6
In a recent case, Texas described to this Court the complexity of chang-
ing uncodifed execution protocols, given the number of state actors who
need to reach agreement. See Respondents' Rule 32.3 Material in Rami-
rez v. Collier, O. T. 2021, No. 21–5592, p. 14a.
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“necessarily imply[ ] the invalidity” of his death sentence be-
cause
Georgia law (presumably both statutes and regula-
tions) “must [be taken] as fxed.” 981 F. 3d, at 1210–1211;
see supra, at 166; post, at 177–178 (Barrett, J., dissenting)
(agreeing that we must “take state law as we fnd it”). But
why must it be so taken—when as a matter of fact Georgia
could change its law and execute Nance? And when Nance
accepts the validity of the State's taking that course? The
Court of Appeals posited that “it is not [a federal court's]
place to entertain complaints under section 1983” that would
compel a State to change its capital punishment law. 981
F. 3d, at 1211; see post, at 177. Except that sometimes it is.
One of the “main aims” of § 1983 is to “override”—and thus
compel change of—state laws when necessary to vindicate
federal constitutional rights. Monroe v. Pape, 365 U. S. 167,
173 (1961); see Zinermon v. Burch, 494 U. S. 113, 124 (1990).
Or said otherwise, the ordinary and expected outcome of
many a meritorious § 1983 suit is to declare unenforceable
(whether on its face or as applied) a state statute as currently
written. See, e. g., Cedar Point Nursery v. Hassid, 594
U. S. ––– (2021). And in turn, the unsurprising effect of
such a judgment may be to send state legislators back to the
drawing board. See, e. g., Kolender v. Lawson, 461 U. S.
352, 358 (1983). A prisoner, no less than any other § 1983
litigant, can bring a suit of that ilk—can seek relief that
would preclude a State from achieving some result unless
and until it amends a statute.
And indeed, courts not uncommonly entertain prisoner
suits under § 1983 that may, if successful, require changing
state law. As noted earlier, the classic prisoner § 1983 suit
is one challenging prison conditions—say, overcrowding or
inadequate medical care. See supra, at 168. Those suits
can be brought under § 1983 because—just like this one—
they attack not the validity of a conviction or sentence, but
only a way of implementing the sentence. (They concern, in
other words, how the prescribed incarceration is being car-
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ried out.) And the suits do not get diverted into habeas if,
as
sometimes is true, a judgment for the inmate would re-
quire a new statutory appropriation for the prison—to hire
more doctors, for example. See, e. g., Stafford v. Carter,
No. 1:17–cv–00289 (SD Ind.), ECF Docs. 268, 282. Similarly,
no one would think an action of that kind should go to habeas
if the prison policy challenged (say, each facility's maximum
population) were specifed in a statute or regulation. Or
consider another kind of prisoner § 1983 suit this Court has
recently considered—one by a death row inmate seeking to
compel the State to open the execution chamber to his spirit-
ual advisor. See Dunn v. Ray, 586 U. S. ––– (2019); Murphy
v. Collier, 587 U. S. ––– (2019); Gutierrez v. Saenz, 592
U. S. ––– (2021); Ramirez v. Collier, 595 U. S. ––– (2022).
Here too, the claim belongs in § 1983 because—just like this
one—it challenges not the validity of a death sentence, but
only the State's mode of carrying it out. And again, we can-
not think it would matter if a State codifed its no-spiritual-
advisor protocol in a regulation. The State, assuming it lost
the suit, would then have to modify its law to go forward
with the execution. But the nature of the suit would still
be the same. The complaint would still ask to adjust only a
matter of implementation, so it still could be fled under
§ 1983.
Under the contrary approach, the federal vehicle for bring-
ing a federal claim—and with that, the viability of the
claim—would depend on the vagaries of state law. Consider
how Nance's own method-of-execution claim would fare in
different States. In Georgia (and any other State with le-
thal injection as the sole authorized method), he would have
to bring his claim in a habeas petition. But in some other
States primarily using lethal injection, he could fle a § 1983
suit—because their statutes include back-up plans for when
a court holds injection unconstitutional. See supra, at 163–
164. Oklahoma's statute, for example, provides in that event
for several alternative methods, including a fring squad.
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See Okla. Stat., Tit. 22, §§ 1014(B)–(D). And Alabama's stat-
ute
, in addition to listing alternatives, provides for execution
“by any constitutional method.” Ala. Code § 15–18–82.1(c).
Similar issues of non-uniformity could arise when inmates
challenge, as in Nelson and Hill, specifc ways of carrying
out a lethal injection. See supra, at 168–169. That is be-
cause some States have codifed injection protocols in their
statutes or regulations, while others (like Georgia) have not.
Compare, e. g., Ark. Code Ann. §§ 5–4–617(c)–(f ) with, e. g.,
Ga. Code Ann. § 17–10–38(a). It would be strange to read
such state-by-state discrepancies into our understanding of
how § 1983 and the habeas statute apply to federal constitu-
tional claims. And that is especially so because the use of
those vehicles can lead to different outcomes: An inmate in
one State could end up getting his requested relief, while a
similarly situated inmate in another would have his suit
thrown out. We cannot agree with the dissent that such a
disparity would be “unremarkable.” Post, at 177. Its ac-
ceptance would mean that the Eighth Amendment is enforce-
able in federal court in one State, but not in another. Again,
this case tells the tale: Having reconstrued Nance's com-
plaint as a habeas petition, the court below dismissed it as
second or successive—a bar existing in habeas alone. See
supra, at 167.
That part of the circuit court's opinion raises one last prob-
lem, because it threatens to undo the commitment this Court
made in Bucklew. See post, at 178 (acknowledging the
point, though fnding it irrelevant). Recall that the Court
there told inmates they could identify an alternative method
of execution not “presently authorized” by the executing
State's law. 587 U. S., at –––; see supra, at 164–165. That
option would ensure state law does not “control[ ]” the
Eighth Amendment inquiry; and it would keep manageable
the inmate's “burden” to identify an alternative. 587 U. S.,
at ––– – –––. Under the circuit court's approach, however,
that option is no option at all. Once an inmate presents an
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out-of-state alternative, he is relegated to habeas. And once
he
is in habeas, he will (according to the circuit court) almost
inevitably collide with the second-or-successive bar (because
a method-of-execution claim typically postdates a frst ha-
beas petition by many years). We do not here decide
whether that view of the second-or-successive bar is correct.
But the two aspects of the circuit court's ruling, when taken
together, turn Bucklew into a sham. On the Eleventh Cir-
cuit's view, Georgia law effectively prevents an inmate like
Nance from putting forward an out-of-state alternative.
And Georgia law thereby precludes the kind of method-of-
execution claim this Court told prisoners they could bring.
One last point from Bucklew—this one about “dilatory”
tactics—bears repeating here. Id., at –––. In recognizing
that § 1983 is a good vehicle for a claim like Nance's, we do
not for a moment countenance “last-minute” claims relied on
to forestall an execution. Id., at –––. “Courts should police
carefully against attempts to use [method-of-execution] chal-
lenges as tools to interpose unjustifed delay.” Ibid. In de-
ciding whether to grant a stay of execution, courts must con-
sider whether such a challenge “could have been brought
earlier” or otherwise refects a prisoner's “attempt at manip-
ulation.” Ibid. (internal quotation marks omitted). And
outside the stay context, courts have a variety of tools—
including the “substantive [and] procedural limitations” that
the Prison Litigation Reform Act imposes—to streamline
§ 1983 actions and protect “the timely enforcement of a sen-
tence.” Nelson, 541 U. S., at 650 (listing PLRA limitations);
Bucklew, 587 U. S., at –––. Finally, all § 1983 suits must be
brought within a State's statute of limitations for personal-
injury actions. See Wallace v. Kato, 549 U. S. 384, 387
(2007). Here, the District Court held Nance's suit untimely
under that limitations period. See No. 20–cv–00107 (ND
Ga., Mar. 13, 2020), ECF Doc. 26, p. 12; supra, at 166. The
Eleventh Circuit did not review that holding because it in-
stead reconstrued the action as a habeas petition. Now that
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Barrett, J., dissenting
we have held that reconstruction unjustifed, the court on
remand
can address the timeliness question, as well as any
others that remain.
***
For the reasons stated, we reverse the judgment of the
Court of Appeals for the Eleventh Circuit and remand the
case for further proceedings consistent with this opinion.
It is so ordered.
Justice Barrett, with whom Justice Thomas, Justice
Alito, and Justice Gorsuch join, dissenting.
An inmate must bring a method-of-execution challenge in
a federal habeas application, rather than under 42 U. S. C.
§ 1983, if “a grant of relief to the inmate would necessarily
bar the execution.” Hill v. McDonough, 547 U. S. 573, 583
(2006). Under this criterion, Michael Nance must proceed
in habeas because a judgment in his favor would “necessarily
bar” the State from executing him. Ibid. Nance asked the
District Court to “enjoin the Defendants from proceeding
with [his] execution . . . by a lethal injection,” claiming that
the use of such method would violate the Eighth Amendment
as applied to him. App. to Pet. for Cert. 103a–104a. But
lethal injection is the only method of execution authorized
under Georgia law. See Ga. Code Ann. § 17–10–38(a) (2020).
Thus, if Nance is successful, the defendants in this case—the
commissioner of the Georgia Department of Corrections and
the warden—will be powerless to carry out his sentence.
That makes habeas the right vehicle for Nance's Eighth
Amendment challenge.
The Court sees things differently. True, Nance is arguing
that the Eighth Amendment renders his sentence invalid
under current Georgia law. But the Court points out that
the law could change: The legislature could authorize execu-
tion by fring squad, the alternative method that Nance has
proposed. In fact, the Court says that Nance's proposal of-
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Barrett, J., dissenting
fers Georgia a “veritable blueprint for carrying the death
sentence
out.” Ante, at 169. So an order in Nance's favor
would not “necessarily bar” the State from ever executing
Nance, in the Court's view. Instead, the order would “giv[e]
the State a pathway forward” if the legislature chooses to
pursue the amendment process. Ibid.
The Court is looking too far down the road. In my view,
the consequence of the relief that a prisoner seeks depends
on state law as it currently exists. And under existing
state law, there is no question that Nance's challenge neces-
sarily implies the invalidity of his lethal injection sentence:
He seeks to prevent the State from executing him in the only
way it lawfully can.
In this respect, Nance's method-of-execution challenge dif-
fers from those brought in Nelson v. Campbell, 541 U. S. 637
(2004), and Hill, 547 U. S. 573. In Nelson, the inmate chal-
lenged the use of a “cut-down” procedure to access his veins.
541 U. S., at 640–642. We held that the suit sounded in
§ 1983 because it would not “necessarily prevent Alabama
from carrying out its execution.” Id., at 647. We reasoned
that, though venous access was an indispensable prerequisite
to lethal injection, “a particular means of gaining such ac-
cess” was not. Id., at 645. Notably, “[n]o Alabama statute
require[d] use of the cut-down,” and the State did not put
forward any “duly-promulgated regulations to the contrary.”
Id., at 646. So even a successful challenge on these grounds
“would have allowed the State to proceed with the execution
as scheduled.” Ibid.
The same was true in Hill, which involved an inmate's
challenge to Florida's three-drug protocol. 547 U. S., at 578.
We held that the inmate could proceed under § 1983 because
his “action if successful would not necessarily prevent the
State from executing him by lethal injection.” Id., at 580.
We emphasized that the complaint did “not challenge the
lethal injection sentence as a general matter” but instead
only “the anticipated protocol.” Ibid. As in Nelson, we
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Barrett, J., dissenting
stressed that Florida law did “not require the department of
correc
tions to use the challenged procedure.” 547 U. S., at
580. The State was “free to use an alternative lethal injec-
tion procedure,” and so we explained that “[u]nder these cir-
cumstances a grant of injunctive relief could not be seen as
barring the execution of Hill's sentence.” Id., at 580–581.
Here, by contrast, the warden and the commissioner are
not free to use an alternative to lethal injection—so if Nance
succeeds, they cannot carry out his sentence. And though
the Court contends otherwise, that consequence “switches
Nance's claim to the habeas track.” Ante, at 169. An in-
mate can use § 1983 actions to challenge many, if not most,
aspects of prison administration. But when a challenge
would prevent a State from enforcing a conviction or sen-
tence, the more rigorous, federalism-protective requirements
of habeas apply. The Court fnds a way around those re-
quirements with a theory at odds with the very federalism
interests they are designed to protect: that an injunction
barring the State from enforcing a sentence according to
state law does not really bar the State from enforcing the
sentence because the State can pass a new law.
Unlike the Court, I would take state law as we fnd it in
determining whether a suit sounds in habeas or § 1983. The
Court worries that this approach would make the appro-
priate federal vehicle “depend on the vagaries of state law.”
Ante, at 172. Some States, like Georgia, provide for a single
method of execution by statute; other States, like Alabama,
allow for more fexibility. See ante, at 172–173. So if state
law determined the vehicle, an inmate in Georgia would have
to challenge the lethal injection method in habeas, while an
inmate in Alabama could use § 1983. But that does not illus-
trate “the vagaries of state law”; it is an unremarkable con-
sequence of federalism. States make different choices in ex-
ercising their power to defne punishment, and the law has
long recognized a sovereign's interest in mandating a partic-
ular form of capital punishment. Cf. 4 W. Blackstone, Com-
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Barrett, J., dissenting
mentaries on the Laws of England 397 (1769) (a sheriff would
be
“guilty of felony” if he “alter[ed] the manner of the exe-
cution”). Habeas is appropriate in Georgia because under
Georgia law, to enjoin execution by lethal injection is to en-
join enforcement of the sentence itself. See Ga. Code Ann.
§ 17–10–38(a) (“All persons who have been convicted of a cap-
ital offense and have had imposed upon them a sentence of
death shall suffer such punishment by lethal injection”). In
Alabama, enjoining execution by lethal injection does not
have the same effect. See Ala. Code § 15–18–82.1(c) (2018)
(permitting execution “by any constitutional method of exe-
cution” if the other methods provided for by statute are held
unconstitutional). The two sovereigns have made different
choices about how to defne punishment, and federal law is
designed to respect the choice of each.
I understand the impulse to fnd a way out of habeas and
into § 1983. In States like Georgia, a claim under Bucklew
v. Precythe, 587 U. S. ––– (2019), alleging an alternative
method of execution not presently authorized by state law
would be diffcult to assert in a federal habeas application
because it would “almost inevitably collide with the second-
or-successive bar.” Ante, at 174. But we acknowledged
that very possibility in Bucklew. 587 U. S., at –––. And
more importantly, the unavailability of federal habeas relief
does not justify recourse to § 1983. Cf. Wilkinson v. Dot-
son, 544 U. S. 74, 87–88 (2005) (Scalia, J., concurring) (“[A]
prisoner who wishes to challenge the length of his confne-
ment, but who cannot obtain federal habeas relief because of
the statute of limitations or the restrictions on successive
petitions, cannot use the unavailability of federal habeas re-
lief in his individual case as grounds for proceeding under
§ 1983” (citations omitted)). The habeas statutes funnel such
challenges to the state courts—which are, after all, “the
principal forum” for them. Harrington v. Richter, 562 U. S.
86, 103 (2011).
For these reasons, I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None