Ingram v. Ault

United States Court of Appeals,

Eleventh Circuit.

No. 95-8381.

Nicholas Lee INGRAM, Plaintiff-Appellant,

v.

Allen L. AULT, Jr., and in his capacity as Commissioner of
Georgia Department of Corrections, Albert G. Thomas, Warden, as an
individual and in his capacity as Warden of the Georgia Diagnostic
& Classification Center at Jackson, Georgia, John Doe, as an
individual and in his capacity as the Georgia State Executioner,
Defendants-Appellees.

April 6, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 95-CV-875-HTW), Horace T. Ward, Judge.

Before HATCHETT, COX and BIRCH, Circuit Judges.

PER CURIAM:

Appellant Nicholas Ingram is currently on death row in

Georgia. Less than a week before his scheduled execution, Ingram

filed a civil rights action in which he moved for a temporary

restraining order enjoining his pending electrocution. The

district court denied Ingram's motion. We affirm.

BACKGROUND

We previously denied Ingram's petition for a writ of habeas

corpus in Ingram v. Zant, 26 F.3d 1047 (11th Cir.1994). On

February 21, 1995, the United States Supreme Court denied Ingram's

petition for a writ of certiorari. Ingram v. Thomas, --- U.S. ----

, 115 S.Ct. 1137, 130 L.Ed.2d 1097 (1995). Ingram's execution was

then scheduled for 7:00 p.m. on April 6, 1995.

On March 31, 1995, Ingram filed this lawsuit pursuant to 42

U.S.C. § 1983 against appellees, officials of the Georgia
Department of Corrections, in the United States District Court for

the Northern District of Georgia. Ingram alleges that: (1)

execution by electrocution constitutes cruel and unusual punishment

in violation of the Eighth and Fourteenth Amendments; (2)

appellees' policies will deny him face-to-face contact with his

spiritual advisor during the hours immediately preceding his

scheduled execution, and only provide a prison chaplain who is not

of his faith as an alternative, in violation of the First and

Fourteenth Amendments; and (3) appellees' policies will deny him

face-to-face contact with his lawyer during the hours immediately

preceding his scheduled execution in violation of the Sixth and

Fourteenth Amendments. On the same date, Ingram also filed a

motion for a temporary restraining order (TRO), requesting the

district court to enjoin "the unconstitutional use of the Electric

Chair." On April 4, 1995, the district court denied Ingram's

motion for a TRO to enjoin his execution by electrocution. On

April 5, 1995, the district court denied Ingram a TRO on his claims

for face-to-face contact with his spiritual advisor and lawyer.1

Also on April 5, 1995, Ingram filed a motion to expedite his appeal

and for oral argument. On the morning of April 6, 1995, we granted

Ingram's motion for an expedited appeal and granted the parties an

opportunity to provide additional briefing until noon of that day.

Appellees submitted additional briefing; Ingram did not. We now

deny the motion for oral argument.

1
After the district court entered its initial order on April
4, 1995, Ingram immediately filed a notice of appeal. We read
his notice of appeal to also include the district court's order
of April 5, 1995.
 ISSUE

The issue on appeal is whether the district court abused its

discretion in denying Ingram's motion for a TRO.

DISCUSSION

Though we concur with appellees' contention that this court

does not have jurisdiction to review the district court's denial of

Ingram's motion for a TRO pursuant to 28 U.S.C. § 1292(b), we find

that this court does have jurisdiction pursuant to 28 U.S.C. §

1292(a)(1). Ordinarily, the denial of a motion for a TRO is not

appealable under § 1292(a)(1). Cuban American Bar Ass'n, Inc. v.

Christopher, 43 F.3d 1412, 1421 (11th Cir.1995). TRO rulings,

however, are subject to appeal as interlocutory injunction orders

if the appellant can disprove the general presumption that no

irreparable harm exists. McDougald v. Jenson, 786 F.2d 1465, 1473

(11th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 207, 93 L.Ed.2d

137 (1986). Furthermore, "when a grant or denial of a TRO "might

have a "serious, perhaps irreparable, consequence," and ... can be

"effectually challenged' only by immediate appeal,' we may exercise

appellate jurisdiction." Romer v. Green Point Sav. Bank, 27 F.3d

12, 15 (2d Cir.1994) (quoting Carson v. American Brands, Inc., 450

U.S. 79, 84, 101 S.Ct. 993, 997, 67 L.Ed.2d 59 (1981)). Because

the district court denied Ingram's motion for a TRO, he faces

execution in less than twenty-four hours. The requirements of

irreparable harm and need for immediate appeal are therefore

satisfied. Thus, we have jurisdiction over this action.2

2
Because appellees did not argue in the district court the
doctrine articulated in Gomez v. United States Dist. Court for
the N. Dist. of Cal., 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d
 We review the district court's ruling for abuse of

discretion. Majd-Pour v. Georgiana Community Hosp., 724 F.2d 901,

902 (11th Cir.1984). To be entitled to a TRO, a movant must show:

(1) a substantial likelihood of ultimate success on the merits;

(2) the TRO is necessary to prevent irreparable injury; (3) the

threatened injury outweighs the harm the TRO would inflict on the

non-movant; and (4) the TRO would serve the public interest.

Gresham Park Community Org. v. Howell, 652 F.2d 1227, 1232 n. 7

(5th Cir.1981).3

Regarding Ingram's Eighth Amendment claim, the district

court, focusing on the first of these factors, held that "in light

of the overwhelming legal preceden[ts] in the lower federal courts,

including the Eleventh [a]nd Fifth Circuit[s,] ... plaintiff has

not established a substantial likelihood that he will prevail on

the merits of his claim." This holding clearly did not constitute

an abuse of discretion. We agree that, in light of precedent,

Ingram is not likely to prevail on the merits of this claim. See

Johnson v. Kemp, 759 F.2d 1503, 1510 (11th Cir.1985) ("The

contention that death by electrocution violates the Eighth

Amendment is frivolous."); Sullivan v. Dugger, 721 F.2d 719, 720

(11th Cir.1983) (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

293 (1992), we decline to address that issue.
3
In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981) (en banc), this court adopted as binding precednet all
decisions of the former Fifth Circuit rendered prior to October
1, 1981.
Eighth and Fourteenth Amendments"); Spinkellink v. Wainwright, 578

F.2d 582, 616 (5th Cir.1978) (rejecting petitioner's contention

that electrocution constitutes cruel and unusual punishment in

violation of Eighth and Fourteenth Amendments), cert. denied, 440

U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

Similarly, in its April 5, 1995 order, the district court

found that Ingram had not established a substantial likelihood of

success on the merits of his First Amendment claims. Specifically,

the district court held that "the mere fact that a prison chaplain

is of one particular faith" does not constitute an Establishment

Clause violation. The district court also determined that Ingram

failed to show "how face to face contact [with his spiritual

advisor] is essential to the practice of his religion during the

hours prior to his death.... [T]his is not sufficient to establish

that defendants' regulations substantially burden plaintiff's

exercise of religion." We hold that the district court did not

abuse its discretion in denying Ingram a TRO on his First Amendment

claims. See Johnson-Bey v. Lane, 863 F.2d 1308, 1312 (7th

Cir.1988) ("Prisons are entitled to employ chaplains and need not

employ chaplains of each and every faith to which prisoners might

happen to subscribe...."); Bryant v. Gomez, 46 F.3d 948, 949 (9th

Cir.1995) (rejecting prisoner's section 1983 free exercise claim

under "substantial burden" test).4

4
Also in its April 5, 1995 order, the district court noted
that appellees agreed to allow Ingram telephonic access to his
lawyer during the three hours immediately preceding his scheduled
execution. The district court found that Ingram's "attorney
appeared to concede that telephonic communication would satisfy
plaintiff's right guaranteed under the Sixth Amendment to
assistance of retained counsel[,]" and that, in any event,
 In sum, we agree with the district court's conclusions that

Ingram did not establish a likelihood of success on the merits of

any of his claims. Consequently, we need not address the other

factors relevant to the TRO inquiry.

CONCLUSION

The district court did not abuse its discretion in denying

Ingram's motion for a TRO. Accordingly, we affirm.5

AFFIRMED.

telephonic access would satisfy the Sixth Amendment. We agree
and note that Ingram has not challenged the district court's
assertions.
5
The mandate shall issue on April 6, 1995 at 5:00 p.m.