Nance v. Ward

(Slip Opinion) OCTOBER TERM, 2021 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NANCE v. WARD, COMMISSIONER, GEORGIA
DEPARTMENT 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 significantly 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 confined 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 Geor-
gia from using lethal injection to carry out his execution. Lethal injec-
tion is the only method of execution that Georgia law now authorizes.
Nance alleges that applying that method to him would create a sub-
stantial risk of severe pain. As an alternative to lethal injection,
Nance proposes death by firing squad—a method currently approved
by four other States. The District Court dismissed Nance’s §1983 suit
as untimely. 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 sentence. And the Eleventh Circuit thought that was what
Nance was doing. It asserted that Georgia law—which again, only au-
thorizes execution by lethal injection—had to be taken as “fixed.” 981
F. 3d 1201, 1211. Under that “fixed” law, the court said, enjoining
Georgia from executing Nance by lethal injection would mean that he
2 NANCE v. WARD

Syllabus

could not be executed at all. The court therefore “reconstrued” Nance’s
§1983 complaint 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 al-
ternative method not authorized by the State’s death-penalty statute.
Both §1983 and the federal habeas statute enable a prisoner to com-
plain of “unconstitutional treatment at the hands of state officials.”
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 twice held that prisoners could bring 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
alternatives were available, the prisoners’ challenges would not “nec-
essarily 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 uncodified protocol. Here, Geor-
gia would have to change its statute to carry out Nance’s execution by
firing squad. Except for that fact, this case would even more clearly
than Nelson and Hill be fit 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, “neces-
sarily 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
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Syllabus

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
Nance relief would necessarily imply the invalidity of his death sen-
tence because Georgia law must be taken as “fixed.” 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 constitu-
tional rights. Monroe v. Pape, 365 U. S. 167, 173. Indeed, courts not
uncommonly entertain prisoner suits under §1983 that may, if success-
ful, require 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 author-
ized 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 file a §1983 suit. It would be strange to read state-
by-state discrepancies into the Court’s understanding of how §1983
and the habeas statute apply to federal constitutional claims. That is
especially so because the use of the vehicles can lead to different out-
comes: An inmate in one State could end up getting his requested re-
lief, 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
presents 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 exe-
cution. 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 en-
forcement. Pp. 5–13.
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., filed
a dissenting opinion, in which THOMAS, ALITO, and GORSUCH, JJ., joined.
 Cite as: 597 U. S. ____ (2022) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 21–439
_________________

MICHAEL NANCE, PETITIONER v. TIMOTHY C.
WARD, COMMISSIONER, GEORGIA DEPART-
MENT OF CORRECTIONS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 23, 2022]

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 un-
der the Eighth Amendment. To prevail on such a claim, a
prisoner must identify a readily available alternative
method of execution that would significantly reduce the risk
of severe pain. In doing so, the prisoner is not confined 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) (slip op.,
at 19).
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
already authorized under state law. See Nelson v. Camp-
bell, 541 U. S. 637, 644–647 (2004). Here, the prisoner has
identified an alternative method that is not so authorized.
The question presented is whether §1983 is still a proper
vehicle. We hold that it is.
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Opinion of the Court

I
A
States choosing to impose capital punishment have over
time sought out “more humane way[s] to carry out death
sentences.” 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. Fif-
teen States, including Georgia, authorize only the use of le-
thal injection.1 Nine States authorize lethal injection plus
one or more other specified methods; of those (to use an ex-
ample relevant here), four approve the firing squad.2 And
three States provide that if their authorized methods (in-
cluding lethal 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

——————
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. Codified 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 fir-

ing 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.
§24–3–530 (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).
 Cite as: 597 U. S. ____ (2022) 3

Opinion of the Court

“cruel and unusual” punishment. To succeed on that claim,
the Court held in Glossip, he must satisfy two require-
ments. 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
significantly reduce[s]” the risk of harm involved. Ibid. (in-
ternal quotation marks omitted). Only through a “compar-
ative exercise,” we have explained, can a judge “decide
whether the State has cruelly ‘superadded’ pain to the pun-
ishment of death.” Bucklew, 587 U. S., at ___ (slip op., at
15).
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 ___
(slip op., at 19). The prisoner may, for example, “point to a
well-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 compara-
tive assessment it requires can’t be controlled by the State’s
choice of which methods to authorize.” Id., at ___ (slip op.,
at 20); see Arthur v. Dunn, 580 U. S. ___, ___ (2017) (slip
op., at 10) (SOTOMAYOR, J., dissenting from denial of certi-
orari). In addition, Bucklew stated, allowing an inmate to
propose a method not authorized by the State keeps his
“burden” within reasonable bounds. 587 U. S., at ___ (slip
op., at 19). Because the inmate can look beyond the State’s
current law, we saw “little likelihood” that he would “be un-
able to identify an available alternative.” Id., at ___ (slip
op., at 20); see id., at ___ (slip op., at 2) (KAVANAUGH, J.,
concurring).
B
While trying to flee a bank robbery, petitioner Michael
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Opinion of the Court

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—
first on direct appeal, next in state collateral proceedings,
and finally 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 exe-
cution Georgia law now authorizes. See supra, at 2.4 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
causing “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 availa-
ble alternative” method of execution, “death by firing
squad.” Ibid. As noted earlier, four other States have ap-
proved that method. See supra, at 2, and n. 2. Use of a
firing 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 qualified personnel and could borrow specific
protocols 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

——————
4 See Ga. Code Ann. §17–10–38(a) (“All persons who have been con-

victed of a capital offense and have had imposed upon them a sentence
of death shall suffer such punishment by lethal injection”).
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Opinion of the Court

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 inva-
lidity of his death sentence.” Id., at 1203. That was so, the
court reasoned, because Georgia law “must [be taken] as
fixed”—and under that “fixed” 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” because Nance had already sought federal
habeas relief. 28 U. S. C. §2244(b); see supra, at 4. Judge
Martin dissented, 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 re-
verse.
II
This 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 officials.” Heck v. Humphrey, 512 U. S. 477,
480 (1994). But there the resemblance stops. The habeas
statute contains procedural requirements (like the second-
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Opinion of the Court

or-successive rule) nowhere found in §1983; the former stat-
ute may therefore require dismissal of a claim when the lat-
ter statute would not. See id., at 480–481. Still more per-
tinent here, the scope of the two laws also differs. Section
1983 broadly authorizes suit against state officials for the
“deprivation of any rights” secured by the Constitution.
Read literally, that language would apply to all of a pris-
oner’s constitutional claims, thus swamping the habeas
statute’s coverage of claims that the prisoner is “in custody
in violation of the Constitution.” 28 U. S. C. §2254(a); see
Wilkinson 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 ex-
ception” for actions that lie “within the core of habeas cor-
pus.” Id., at 79.
In defining 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 flaw 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 pre-
venting 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 inva-
lidity of his conviction or sentence.” Id., at 487 (barring
§1983 suits for money damages when prevailing would im-
ply a conviction was wrongful). In doing so, though, we
have underscored that the implication must be “neces-
sar[y].” Wilkinson, 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 ade-
quacy of a prison’s medical care—does not go to the validity
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Opinion of the Court

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 chal-
lenges to a State’s lethal injection protocol—the first to the
use of a “cut-down” procedure to access the prisoner’s veins,
the second to a particular three-drug sequence. The cases
predated our requirement that prisoners identify alterna-
tive methods, but each prisoner had said enough to leave
the Court convinced that alternatives to the challenged pro-
cedures 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 from executing him. So the claims could proceed un-
der §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 alter-
native 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 uncodified
——————
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 6.
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Opinion of the Court

protocols. Here, all parties agree that Georgia would have
to change its statute to carry out Nance’s execution by
means of a firing 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 fit 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 “sufficiently detailed” to
show that an alternative method is both “feasible” and
“readily implemented.” Bucklew, 587 U. S., at ___ (slip op.,
at 21); see supra, at 3. 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
validity 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 read-
ily use his proposal to execute him. The court’s order there-
fore 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.
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
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Opinion of the Court

even when uncodified may take some real work6—is not rel-
evant to the vehicle question. 547 U. S., at 583. Instead,
that inquiry (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 6. And anyway, Georgia has given us no reason
to think that the amendment process would be a substan-
tial impediment. The State has legislated changes to its
execution method several times before. See Dept. of Cor-
rections, Office of Planning and Analysis, A History of the
Death Penalty in Georgia: Executions by Year 1924–2014
(Jan. 2015) (describing how Georgia moved from hanging to
electrocution to lethal injection). Other States have regu-
larly done the same, often in an effort to make executions
more humane. See S. Banner, The Death Penalty: An
American History 296–297 (2002); see supra, at 2. That
Nance’s claim would require such action does not turn it
from one contesting a method of execution into one disput-
ing the underlying 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
“necessarily imply[] the invalidity” of his death sentence be-
cause Georgia law (presumably both statutes and regula-
tions) “must [be taken] as fixed.” 981 F. 3d, at 1210–1211;
see supra, at 5; post, at 3–4 (BARRETT, J., dissenting) (agree-
ing that we must “take state law as we find 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 ac-
cepts 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
——————
6 In a recent case, Texas described to this Court the complexity of

changing uncodified execution protocols, given the number of state actors
who need to reach agreement. See Respondents’ Rule 32.3 Material in
Ramirez v. Collier, O. T. 2021, No. 21–5592, p. 14a.
10 NANCE v. WARD

Opinion of the Court

would compel a State to change its capital punishment law.
981 F. 3d, at 1211; see post, at 3. 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 vin-
dicate 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 un-
enforceable (whether on its face or as applied) a state stat-
ute 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 re-
sult 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 6–7. 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-
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 specified 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
 Cite as: 597 U. S. ____ (2022) 11

Opinion of the Court

compel the State to open the execution chamber to his spir-
itual advisor. See Dunn v. Ray, 586 U. S. ___ (2019); Mur-
phy 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 codified 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 filed under
§1983.
Under the contrary approach, the federal vehicle for
bringing 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 file a §1983
suit—because their statutes include back-up plans for when
a court holds injection unconstitutional. See supra, at 2.
Oklahoma’s statute, for example, provides in that event for
several alternative methods, including a firing squad. See
Okla. Stat., Tit. 22, §§1014(B)–(D). And Alabama’s statute,
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, specific ways of carrying
out a lethal injection. See supra, at 7. That is because some
States have codified 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-
12 NANCE v. WARD

Opinion of the Court

by-state discrepancies into our understanding of how §1983
and the habeas statute apply to federal constitutional
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 sim-
ilarly 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 3. Its ac-
ceptance would mean that the Eighth Amendment is en-
forceable in federal court in one State, but not in another.
Again, this case tells the tale: Having reconstrued Nance’s
complaint as a habeas petition, the court below dismissed it
as second or successive—a bar existing in habeas alone. See
supra, at 5–6.
That part of the circuit court’s opinion raises one last
problem, because it threatens to undo the commitment this
Court made in Bucklew. See post, at 4 (acknowledging the
point, though finding it irrelevant). Recall that the Court
there told inmates they could identify an alternative
method of execution not “presently authorized” by the exe-
cuting State’s law. 587 U. S., at ___ (slip op., at 19); see
supra, at 3. 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 alter-
native. 587 U. S., at ___–___ (slip op., at 19–20). Under the
circuit court’s approach, however, that option is no option
at all. Once an inmate presents an 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-ex-
ecution claim typically postdates a first habeas 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 Circuit’s view, Geor-
 Cite as: 597 U. S. ____ (2022) 13

Opinion of the Court

gia law effectively prevents an inmate like Nance from put-
ting 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 ___ (slip op., at 30).
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. Ibid. “Courts
should police carefully against attempts to use [method-of-
execution] challenges as tools to interpose unjustified de-
lay.” Ibid. In deciding whether to grant a stay of execution,
courts must consider whether such a challenge “could have
been brought earlier” or otherwise reflects a prisoner’s “at-
tempt at manipulation.” Ibid. (internal quotation marks
omitted). And outside the stay context, courts have a vari-
ety of tools—including the “substantive [and] procedural
limitations” that the Prison Litigation Reform Act im-
poses—to streamline §1983 actions and protect “the timely
enforcement of a sentence.” Nelson, 541 U. S., at 650 (list-
ing PLRA limitations); Bucklew, 587 U. S., at ___ (slip op.,
at 29). 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 limi-
tations period. See No. 20–cv–00107 (ND Ga., Mar. 13,
2020), ECF Doc. 26, p. 12; supra, at 4. The Eleventh Circuit
did not review that holding because it instead reconstrued
the action as a habeas petition. Now that we have held that
reconstruction unjustified, 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.
14 NANCE v. WARD

Opinion of the Court

It is so ordered.
 Cite as: 597 U. S. ____ (2022) 1

BARRETT, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 21–439
_________________

MICHAEL NANCE, PETITIONER v. TIMOTHY C.
WARD, COMMISSIONER, GEORGIA DEPART-
MENT OF CORRECTIONS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 23, 2022]

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 “neces-
sarily bar” the State from executing him. Ibid. Nance
asked the District Court to “enjoin the Defendants from pro-
ceeding with [his] execution . . . by a lethal injection,” claim-
ing 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
2 NANCE v. WARD

BARRETT, J., dissenting

the law could change: The legislature could authorize exe-
cution by firing squad, the alternative method that Nance
has proposed. In fact, the Court says that Nance’s proposal
offers Georgia a “veritable blueprint for carrying the death
sentence out.” Ante, at 8. 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 necessarily
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
differs from those brought in Nelson v. Campbell, 541 U. S.
637 (2004), and Hill, 547 U. S. 573. In Nelson, the inmate
challenged 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 prerequi-
site to lethal injection, “a particular means of gaining such
access” 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 con-
trary.” 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.
 Cite as: 597 U. S. ____ (2022) 3

BARRETT, J., dissenting

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
stressed that Florida law did “not require the department
of corrections to use the challenged procedure.” 547 U. S.,
at 580. The State was “free to use an alternative lethal in-
jection procedure,” and so we explained that “[u]nder these
circumstances 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 8. An inmate
can use §1983 actions to challenge many, if not most, as-
pects of prison administration. But when a challenge would
prevent a State from enforcing a conviction or sentence, the
more rigorous, federalism-protective requirements of ha-
beas apply. The Court finds a way around those require-
ments with a theory at odds with the very federalism inter-
ests 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 find it in
determining whether a suit sounds in habeas or §1983. The
Court worries that this approach would make the appropri-
ate federal vehicle “depend on the vagaries of state law.”
Ante, at 11. Some States, like Georgia, provide for a single
method of execution by statute; other States, like Alabama,
allow for more flexibility. See ibid. So if state law deter-
mined the vehicle, an inmate in Georgia would have to chal-
lenge the lethal injection method in habeas, while an in-
mate in Alabama could use §1983. But that does not
illustrate “the vagaries of state law”; it is an unremarkable
consequence of federalism. States make different choices in
4 NANCE v. WARD

BARRETT, J., dissenting

exercising their power to define punishment, and the law
has long recognized a sovereign’s interest in mandating a
particular form of capital punishment. Cf. 4 W. Blackstone,
Commentaries on the Laws of England 397 (1769) (a sheriff
would be “guilty of felony” if he “alter[ed] the manner of the
execution”). Habeas is appropriate in Georgia because un-
der Georgia law, to enjoin execution by lethal injection is to
enjoin enforcement of the sentence itself. 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 sen-
tence of death shall suffer such punishment by lethal injec-
tion”). 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 execution” if the other methods provided for by statute
are held unconstitutional). The two sovereigns have made
different choices about how to define punishment, and fed-
eral law is designed to respect the choice of each.
I understand the impulse to find 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 difficult to assert in a federal habeas application
because it would “almost inevitably collide with the second-
or-successive bar.” Ante, at 12. But we acknowledged that
very possibility in Bucklew. 587 U. S., at ___ (slip op., at
19). And more importantly, the unavailability of federal ha-
beas relief does not justify recourse to §1983. Cf. Wilkinson
v. Dotson, 544 U. S. 74, 87–88 (2005) (Scalia, J., concurring)
(“[A] prisoner who wishes to challenge the length of his con-
finement, but who cannot obtain federal habeas relief be-
cause of the statute of limitations or the restrictions on suc-
cessive petitions, cannot use the unavailability of federal
habeas relief in his individual case as grounds for proceed-
ing under §1983” (citations omitted)). The habeas statutes
funnel such challenges to the state courts—which are, after
 Cite as: 597 U. S. ____ (2022) 5

BARRETT, J., dissenting

all, “the principal forum” for them. Harrington v. Richter,
562 U. S. 86, 103 (2011).
For these reasons, I respectfully dissent.