Court rules lawsuit filed by Georgia inmate who wants to die by firing squad can move forward

GWINNETT COUNTY, Ga. — The 11th U.S. Circuit Court of Appeals ruled a lawsuit filed by a Georgia death row inmate who wants to be executed by a firing squad can move forward.

Michael Wade Nance is currently on death row. Nance shot and killed 43-year-old Gagor Balogh in 2002 in Gwinnett County. Nance was trying to get away after robbing Tucker Federal Savings and Loan in Lilburn.

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He has sued Georgia’s prison system claiming lethal injection could cause him excruciating pain. He insists his veins are “severely compromised and unsuitable for sustained intravenous access.” Lethal injection is currently the only option for death row inmates in Georgia.

His lawsuit previously was dismissed in federal court, but he took his case to the U.S. Supreme Court, who ruled in favor of his appeal. The ruling allowed Nance to file a civil rights lawsuit against the state’s form of execution.

“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,” wrote Justice Elena Kagan in the majority opinion.

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The court returned the case to the Atlanta-based 11th U.S. Circuit Court of Appeals for proceedings that lined up with the Supreme Court’s new ruling.

On Monday, the appeals court denied a request to dismiss the lawsuit again, ruling that Nance’s challenge is timely.

“The district court dismissed the action as untimely and for failure to state a claim. We hold that the action is timely because the prisoner raised an as-applied challenge, so the limitations period commenced only when the claim became or should have become apparent to a person with a reasonably prudent regard for his rights. And we hold that the prisoner stated a plausible Eighth Amendment claim when he alleged that the medication gabapentin had reduced his brain’s receptiveness to sedatives,” Judge William Pryor wrote.

“But we hold that the prisoner failed to state a claim when he alleged that the lethal drugs cannot be injected into his veins according to standard protocols because he failed to plausibly allege that one alternative injection procedure could not constitutionally be performed.”

The case now heads back to the United States District Court for the Northern District of Georgia.

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