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.